Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-18463 October 4, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
GREGORIO PERFECTOR, defendant-appellant.
Alfonso E. Mendoza and the appellant in behalf of the latter.
Attorney-General Villa-Real for appellee.
MALCOLM, J .:
The important question is here squarely presented of whether article 256 of the Spanish Penal Code, punishing
"Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other person in authority
. . .," is still in force.
About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero, discovered that certain
documents which constituted the records of testimony given by witnesses in the investigation of oil companies, had
disappeared from his office. Shortly thereafter, the Philippine Senate, having been called into special session by the
Governor-General, the Secretary for the Senate informed that body of the loss of the documents and of the steps
taken by him to discover the guilty party. The day following the convening of the Senate, September 7, 1920, the
newspaper La Nacion, edited by Mr. Gregorio Perfecto, published an article reading as follows:
Half a month has elapsed since the discovery, for the first time, of the scandalous robbery of records which
were kept and preserved in the iron safe of the Senate, yet up to this time there is not the slightest indication
that the author or authors of the crime will ever be discovered.
To find them, it would not, perhaps, be necessary to go out of the Sente itself, and the persons in charge of
the investigation of the case would not have to display great skill in order to succeed in their undertaking,
unless they should encounter the insuperable obstacle of offical concealment.
In that case, every investigation to be made would be but a mere comedy and nothing more.
After all, the perpetration of the robbery, especially under the circumstances that have surrounded it, does
not surprise us at all.
The execution of the crime was but the natural effect of the environment of the place in which it was
committed.
How many of the present Senators can say without remorse in their conscience and with serenity of mind,
that they do not owe their victory to electoral robbery? How may?
The author or authors of the robbery of the records from the said iron safe of the Senate have, perhaps, but
followed the example of certain Senators who secured their election through fraud and robbery.
The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizing its committee on
elections and privileges to report as to the action which should be taken with reference to the article published inLa
Nacion. On September 15, 1920, the Senate adopted a resolution authorizing the President of the Senate to indorse
to the Attorney-General, for his study and corresponding action, all the papers referring to the case of the
newspaper La Nacion and its editor, Mr. Gregorio Perfecto. As a result, an information was filed in the municipal
court of the City of Manila by an assistant city fiscal, in which the editorial in question was set out and in which it was
alleged that the same constituted a violation of article 256 of the Penal Code. The defendant Gregorio Perfecto was
found guilty in the municipal court and again in the Court of First Instance of Manila.
During the course of the trial in the Court of First Instance, after the prosecution had rested, the defense moved for
the dismissal of the case. On the subject of whether or not article 256 of the Penal Code, under which the
information was presented, is in force, the trial judge, the Honorable George R. Harvey, said:
This antiquated provision was doubtless incorporated into the Penal Code of Spain for the protection of the
Ministers of the Crown and other representatives of the King against free speech and action by Spanish
subjects. A severe punishment was prescribed because it was doubtless considered a much more serious
offense to insult the Kings representative than to insult an ordinary individual. This provision, with almost all
the other articles of that Code, was extended to the Philippine Islands when under the dominion of Spain
because the Kings subject in the Philippines might defame, abuse or insult the Ministers of the Crown or
other representatives of His Majesty. We now have no Ministers of the Crown or other persons in authority in
the Philippines representing the King of Spain, and said provision, with other articles of the Penal Code, had
apparently passed into "innocuous desuetude," but the Supreme Corut of the Philippine Islands has, by a
majority decision, held that said article 256 is the law of the land to-day. . . .
The Helbig case is a precedent which, by the rule of stare decisis, is binding upon this court until otherwise
determined by proper authority.
In the decision rendered by the same judge, he concluded with the following language:
In the United States such publications are usually not punishable as criminal offense, and little importance is
attached to them, because they are generally the result of political controversy and are usually regarded as
more or less colored or exaggerated. Attacks of this character upon a legislative body are not punishable,
under the Libel Law. Although such publications are reprehensible, yet this court feels some aversion to the
application of the provision of law under which this case was filed. Our Penal Code has come to us from the
Spanish regime. Article 256 of that Code prescribes punishment for persons who use insulting language
about Ministers of the Crown or other "authority." The King of Spain doubtless left the need of such
protection to his ministers and others in authority in the Philippines as well as in Spain. Hence, the article
referred to was made applicable here. Notwithstanding the change of sovereignty, our Supreme Court, in a
majority decision, has held that this provision is still in force, and that one who made an insulting remark
about the President of the United States was punishable under it. (U.S. vs. Helbig, supra.) If it applicable in
that case, it would appear to be applicable in this case. Hence, said article 256 must be enforced, without
fear or favor, until it shall be repealed or superseded by other legislation, or until the Supreme Court shall
otherwise determine.
In view of the foregoing considerations, the court finds the defendant guilty as charged in the information
and under article 256 of their Penal Code sentences him to suffer two months and one day of arresto
mayorand the accessory penalties prescribed by law, and to pay the costs of both instances.
The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief, and eloquent oral
argument made in his own behalf and by his learned counsel, all reduce themselves to the pertinent and decisive
question which was announced in the beginning of this decision.
It will be noted in the first place that the trial judge considered himself bound to follow the rule announced in the
case of United States vs. Helbig (R. G. No. 14705,
1
not published). In that case, the accused was charged with
having said, "To hell with the President and his proclamations, or words to that effect," in violation of article 256 of
the Penal Code. He was found guilty in a judgment rendered by the Court of First Instance of Manila and again on
appeal to the Supreme Court, with the writer of the instant decision dissenting on two principal grounds: (1) That the
accused was deprived of the constitutional right of cross-examination, and (2) that article 256 of the Spanish Penal
Code is no longer in force. Subsequently, on a motion of reconsideration, the court, being of the opinion that the
Court of First Instance had committed a prejudicial error in depriving the accused of his right to cross-examine a
principal witness, set aside the judgment affirming the judgment appealed from and ordered the return of the record
to the court of origin for the celebration of a new trial. Whether such a trial was actually had, is not known, but at
least, the record in the Helbig case has never again been elevated to this court.
There may perchance exist some doubt as to the authority of the decision in the Helbig case, in view of the
circumstances above described. This much, however, is certain: The facts of the Helbig case and the case before
us, which we may term the Perfecto case, are different, for in the first case there was an oral defamation, while in
the second there is a written defamation. Not only this, but a new point which, under the facts, could not have been
considered in the Helbig case, is, in the Perfecto case, urged upon the court. And, finally, as is apparent to all, the
appellate court is not restrained, as was the trial court, by strict adherence to a former decision. We much prefer to
resolve the question before us unhindered by references to the Helbig decision.
This is one of those cases on which a variety of opinions all leading to the same result can be had. A majority of the
court are of the opinion that the Philippine Libel Law, Act No. 277, has had the effect of repealing so much of article
256 of the Penal Code as relates to written defamation, abuse, or insult, and that under the information and the
facts, the defendant is neither guilty of a violation of article 256 of the Penal Code, nor of the Libel Law. The view of
the Chief Justice is that the accused should be acquitted for the reason that the facts alleged in the information do
not constitute a violation of article 156 of the Penal Code. Three members of the court believe that article 256 was
abrogated completely by the change from Spanish to American sovereignty over the Philippines and is inconsistent
with democratic principles of government.
Without prejudice to the right of any member of the court to explain his position, we will discuss the two main points
just mentioned.
1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal Code. The Libel
Law, Act No. 277, was enacted by the Philippine Commission shortly after organization of this legislative
body. Section 1 defines libel as a "malicious defamation, expressed either in writing, printing, or by signs or
pictures, or the like, or public theatrical exhibitions, tending to blacken the memory of one who is dead or to
impeach the honesty, virtue, or reputation, or publish the alleged or natural deffects of one who is alive, and
thereby expose him to public hatred, contempt or ridicule." Section 13 provides that "All laws and parts of
laws now in force, so far as the same may be in conflict herewith, are hereby repealed. . . ."
That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith, and that the Libel Law
abrogated certain portion of the Spanish Penal Code, cannot be gainsaid. Title X of Book II of the Penal Code,
covering the subjects of calumny and insults, must have been particularly affected by the Libel Law. Indeed, in the
early case of Pardo de Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the Supreme Court spoke of the Libel Law
as "reforming the preexisting Spanish law on the subject of calumnia and injuria." Recently, specific attention was
given to the effect of the Libel Law on the provisions of the Penal Code, dealing with calumny and insults, and it was
found that those provisions of the Penal Code on the subject of calumny and insults in which the elements of writing
an publicity entered, were abrogated by the Libel Law. (People vs. Castro [1922], p. 842, ante.)
The Libel Law must have had the same result on other provisions of the Penal Code, as for instance article 256.
The facts here are that the editor of a newspaper published an article, naturally in writing, which may have had the
tendency to impeach the honesty, virtue, or reputation of members of the Philippine Senate, thereby possibly
exposing them to public hatred, contempt, or ridicule, which is exactly libel, as defined by the Libel Law. Sir J. F.
Stephen is authority for the statement that a libel is indictable when defaming a "body of persons definite and small
enough for individual members to be recognized as such, in or by means of anything capable of being a libel."
(Digest of Criminal Law, art. 267.) But in the United States, while it may be proper to prosecute criminally the author
of a libel charging a legislator with corruption, criticisms, no matter how severe, on a legislature, are within the range
of the liberty of the press, unless the intention and effect be seditious. (3 Whartons Criminal Law, p. 2131.) With
these facts and legal principles in mind, recall that article 256 begins: Any person who, by . . . writing, shall defame,
abuse, or insult any Minister of the Crown or other person in authority," etc.
The Libel Law is a complete and comprehensive law on the subject of libel. The well-known rule of statutory
construction is, that where the later statute clearly covers the old subject-matter of antecedent acts, and it plainly
appears to have been the purpose of the legislature to give expression in it to the whole law on the subject, previous
laws are held to be repealed by necessary implication. (1 Lewis Sutherland Statutory Construction, p. 465.) For
identical reasons, it is evident that Act No. 277 had the effect so much of this article as punishes defamation, abuse,
or insults by writing.
Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected article 256, but as
to this point, it is not necessary to make a pronouncement.
2. Effect of the change from Spanish to Amercian sevoreignty over the Philippine son article 256 of the
Spanish Penal Code. Appellants main proposition in the lower court and again energetically pressed in
the appellate court was that article 256 of the Spanish Penal Code is not now in force because abrogated by
the change from Spanish to American sovereignty over the Philippines and because inconsistent with
democratic principles of government. This view was indirectly favored by the trial judge, and, as before
stated, is the opinion of three members of this court.
Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code. Title I of Book II punishes the
crimes of treason, crimes that endanger the peace or independence of the state, crimes against international law,
and the crime of piracy. Title II of the same book punishes the crimes of lese majeste, crimes against the Cortesand
its members and against the council of ministers, crimes against the form of government, and crimes committed on
the occasion of the exercise of rights guaranteed by the fundamental laws of the state, including crime against
religion and worship. Title III of the same Book, in which article 256 is found, punishes the crimes of rebellion,
sedition, assaults upon persons in authority, and their agents, and contempts, insults, injurias, and threats against
persons in authority, and insults, injurias, and threats against their agents and other public officers, the last being the
title to Chapter V. The first two articles in Chapter V define and punish the offense of contempt committed by any
one who shall be word or deed defame, abuse, insult, or threathen a minister of the crown, or any person in
authority. The with an article condemning challenges to fight duels intervening, comes article 256, now being
weighed in the balance. It reads as follows: "Any person who, by word, deed, or writing, shall defame, abuse, or
insult any Minister of the Crown or other person in authority, while engaged in the performance of official duties, or
by reason of such performance, provided that the offensive minister or person, or the offensive writing be not
addressed to him, shall suffer the penalty of arresto mayor," that is, the defamation, abuse, or insult of
any Minister of the Crown of the Monarchy of Spain (for there could not be a Minister of the Crown in the United
States of America), or other person in authority in the Monarchy of Spain.
It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do with such subjects as
treason, lese majeste, religion and worship, rebellion, sedition, and contempts of ministers of the crown, are not
longer in force. Our present task, therefore, is a determination of whether article 256 has met the same fate, or,
more specifically stated, whether it is in the nature of a municipal law or political law, and is consistent with the
Constitution and laws of the United States and the characteristics and institutions of the American Government.
It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded
region are totally abrogated. "Political" is here used to denominate the laws regulating the relations sustained by the
inhabitants to the sovereign. (American Insurance Co. vs. Canter [1828], 1 Pet., 511; Chicago, Rock Island and
Pacific Railway Co. vs. McGlinn [1885], 114 U.S., 542; Roa vs. Collector of Customs [1912], 23 Phil., 315.) Mr.
Justice Field of the United States Supreme Court stated the obvious when in the course of his opinion in the case of
Chicago, Rock Island and Pacific Railway Co. vs. McGlinn, supra, he said: "As a matter of course, all laws,
ordinances and regulations in conflict with the political character, institutions and Constitution of the new
government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power and the
latter is involved in the former to the United States, the laws of the country in support of an established religion
or abridging the freedom of the press, or authorizing cruel and unusual punishments, and he like, would at once
cease to be of obligatory force without any declaration to that effect." To quote again from the United States
Supreme Court: "It cannot be admitted that the King of Spain could, by treaty or otherwise, impart to the United
States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to
exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the Constitution and
laws of its own government, and not according to those of the government ceding it." (Pollard vs. Hagan [1845], 3
Hos., 210.)
On American occupation of the Philippines, by instructions of the President to the Military Commander dated May
28, 1898, and by proclamation of the latter, the municipal laws of the conquered territory affecting private rights of
person and property and providing for the punishment of crime were nominally continued in force in so far as they
were compatible with the new order of things. But President McKinley, in his instructions to General Merritt, was
careful to say: "The first effect of the military occupation of the enemys territory is the severance of the former
political relation of the inhabitants and the establishment of a new political power." From that day to this, the
ordinarily it has been taken for granted that the provisions under consideration were still effective. To paraphrase the
language of the United States Supreme Court in Weems vs. United States ([1910], 217 U. S., 349), there was not
and could not be, except as precise questions were presented, a careful consideration of the codal provisions and a
determination of the extent to which they accorded with or were repugnant to the "great principles of liberty and law
which had been made the basis of our governmental system. " But when the question has been squarely raised,
the appellate court has been forced on occasion to hold certain portions of the Spanish codes repugnant t
democratic institutions and American constitutional principles. (U.S. vs. Sweet [1901], 1 Phil., 18; U.S. vs. Balcorta
[1913], 25 Phil., 273; U.S. vs. Balcorta [1913], 25 Phil., 533; Weems vs. U.S., supra.)
The nature of the government which has been set up in the Philippines under American sovereignty was outlined by
President McKinley in that Magna Charta of Philippine liberty, his instructions to the Commission, of April 7, 1900. In
part, the President said:
In all the forms of government and administrative provisions which they are authorized to prescribe, the
Commission should bear in mind that he government which they are establishing is designed not for our
satisfaction or for the expression of our theoretical views, but for the happiness, peace, and prosperity of the
people of the Philippine Islands, and the measures adopted should be made to conform to their customs,
their habits, and even their prejudices, to the fullest extent consistent with the accomplishment of the
indispensable requisites of just and effective government. At the same time the Commission should bear in
mind, and the people of the Islands should be made plainly to understand, that there are certain great
principles of government which have been made the basis of our governmental system, which we deem
essential to the rule of law and the maintenance of individual freedom, and of which they have,
unfortunately, been denied the experience possessed by us; that there are also certain practical rules of
government which we have found to be essential to the preservation of these great principles of liberty and
law, and that these principles and these rules of government must be established and maintained in their
islands for the sake of their liberty and happiness, however much they may conflict with the customs or laws
of procedure with which they are familiar. It is evident that the most enligthened thought of the Philippine
Islands fully appreciates the importance of these principles and rules, and they will inevitably within a short
time command universal assent.
The courts have naturally taken the same view. Mr. Justice Elliott, speaking for our Supreme Court, in the case of
United States vs. Bull ([1910], 15 Phil., 7), said: "The President and Congress framed the government on the model
with which American are familiar, and which has proven best adapted for the advancement of the public interests
and the protection of individual rights and privileges."
Therefore, it has come with somewhat of a shock to hear the statement made that the happiness, peace, and
prosperity of the people of the Philippine Islands and their customs, habits, and prejudices, to follow the language of
President McKinley, demand obeisance to authority, and royal protection for that authority.
According to our view, article 256 of the Spanish Penal Code was enacted by the Government of Spain to protect
Spanish officials who were the representatives of the King. With the change of sovereignty, a new government, and
a new theory of government, as set up in the Philippines. It was in no sense a continuation of the old, although
merely for convenience certain of the existing institutions and laws were continued. The demands which the new
government made, and makes, on the individual citizen are likewise different. No longer is there a Minister of the
Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath. "In
the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with
every other man. We have no rank or station, except that of respectability and intelligence as opposed to indecency
and ignorance, and the door to this rank stands open to every man to freely enter and abide therein, if he is
qualified, and whether he is qualified or not depends upon the life and character and attainments and conduct of
each person for himself. Every man may lawfully do what he will, so long as it is not malum in se ormalum
prohibitum or does not infringe upon the qually sacred rights of others." (State vs. Shepherd [1903], 177 Mo., 205;
99 A. S. R., 624.)
It is true that in England, from which so many of the laws and institutions of the United States are derived, there
were once statutes of scandalum magnatum, under which words which would not be actionable if spoken of an
ordinary subject were made actionable if spoken of a peer of the realm or of any of the great officers of the Crown,
without proof of any special damage. The Crown of England, unfortunately, took a view less tolerant that that of
other sovereigns, as for instance, the Emperors Augustus, Caesar, and Tiberius. These English statutes have,
however, long since, become obsolete, while in the United States, the offense of scandalum magnatum is not
known. In the early days of the American Republic, a sedition law was enacted, making it an offense to libel the
Government, the Congress, or the President of the United States, but the law met with so much popular disapproval,
that it was soon repealed. "In this country no distinction as to persons is recognized, and in practice a person
holding a high office is regarded as a target at whom any person may let fly his poisonous words. High official
position, instead of affording immunity from slanderous and libelous charges, seems rather to be regarded as
making his character free plunder for any one who desires to create a senation by attacking it." (Newell, Slander and
Libel, 3d ed., p. 245; Sillars vs. Collier [1890], 151 Mass., 50; 6 L.R.A., 680.)
Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American character and
system of government. The gulf which separates this article from the spirit which inspires all penal legislation of
American origin, is as wide as that which separates a monarchy from a democratic Republic like that of the United
States. This article was crowded out by implication as soon as the United States established its authority in the
Philippine Islands. Penalties out of all proportion to the gravity of the offense, grounded in a distorted monarchical
conception of the nature of political authority, as opposed to the American conception of the protection of the
interests of the public, have been obliterated by the present system of government in the Islands. 1awph!l.net
From an entirely different point of view, it must be noted that this article punishes contempts against executive
officials, although its terms are broad enough to cover the entire official class. Punishment for contempt of non-
judicial officers has no place in a government based upon American principles. Our official class is not, as in
monarchies, an agent of some authority greater than the people but it is an agent and servant of the people
themselves. These officials are only entitled to respect and obedience when they are acting within the scope of their
authority and jurisdiction. The American system of government is calculated to enforce respect and obedience
where such respect and obedience is due, but never does it place around the individual who happens to occupy an
official position by mandate of the people any official halo, which calls for drastic punishment for contemptuous
remarks.
The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris. Ministers of the
Crown have no place under the American flag.
To summarize, the result is, that all the members of the court are of the opinion, although for different reasons, that
the judgment should be reversed and the defendant and appellant acquitted, with costs de officio. So ordered.
Ostrand and Johns, JJ., concur.
Separate Opinions
ARAULLO, C.J ., concurring:
I concur with the dispositive part of the foregoing decision, that is, with the acquittal of the accused, for the sole
reason that the facts alleged in the information do not constitute a violation of article 256 of the Penal Code; for
although that article is in force with respect to calumny, injuria, or insult, by deed or word, against an authority in the
performance of his duties or by reason thereof, outside of his presence, it is repealed by the Libel Law in so far as it
refers to calumny, injuria, or insult committed against an authority by writing or printing, as was that inserted in the
said information.
ROMUALDEZ, J ., concurring:
I concur with the result. I believe that the responsibility of the accused has not been shown either under article 256
of the Penal Code or under the Libel Law.
I am of the opinion that article 256 of the Penal Code is still in force, except as it refers to "Ministers of the Crown,"
whom we do not have in our Government, and to calumny, injuria, or insult, by writing or printing, committed against
an authority in the performance of his duties or by reason thereof, which portion was repealed by the Libel Law.
Johnson, Street, Avancea and Villamor, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 133-J May 31, 1982
BERNARDITA R. MACARIOLA, complainant,
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, respondent.
MAKASIAR, J :
In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge Elias B. Asuncion
of the Court of First Instance of Leyte, now Associate Justice of the Court of Appeals, with "acts unbecoming a
judge."
The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia Muoz
Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, to whom this case was referred
on October 28, 1968 for investigation, thus:
Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition filed by
Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, and Priscilla
Reyes, plaintiffs, against Bernardita R. Macariola, defendant, concerning the properties left by the
deceased Francisco Reyes, the common father of the plaintiff and defendant.
In her defenses to the complaint for partition, Mrs. Macariola alleged among other things that; a)
plaintiff Sinforosa R. Bales was not a daughter of the deceased Francisco Reyes; b) the only legal
heirs of the deceased were defendant Macariola, she being the only offspring of the first marriage of
Francisco Reyes with Felisa Espiras, and the remaining plaintiffs who were the children of the
deceased by his second marriage with Irene Ondez; c) the properties left by the deceased were all
the conjugal properties of the latter and his first wife, Felisa Espiras, and no properties were
acquired by the deceased during his second marriage; d) if there was any partition to be made,
those conjugal properties should first be partitioned into two parts, and one part is to be adjudicated
solely to defendant it being the share of the latters deceased mother, Felisa Espiras, and the other
half which is the share of the deceased Francisco Reyes was to be divided equally among his
children by his two marriages.
On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case 3010, the
dispositive portion of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a
preponderance of evidence, finds and so holds, and hereby renders judgment (1)
Declaring the plaintiffs Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes and Priscilla Reyes as the only children legitimated by the subsequent
marriage of Francisco Reyes Diaz to Irene Ondez; (2) Declaring the plaintiff
Sinforosa R. Bales to have been an illegitimate child of Francisco Reyes Diaz; (3)
Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and 1/4 of Lot 1145
as belonging to the conjugal partnership of the spouses Francisco Reyes Diaz and
Felisa Espiras; (4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416 as belonging to
the spouses Francisco Reyes Diaz and Irene Ondez in common partnership; (5)
Declaring that 1/2 of Lot No. 1184 as belonging exclusively to the deceased
Francisco Reyes Diaz; (6) Declaring the defendant Bernardita R. Macariola, being
the only legal and forced heir of her mother Felisa Espiras, as the exclusive owner of
one-half of each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and the
remaining one-half (1/2) of each of said Lots Nos. 4474, 4475, 4892, 5265, 4803,
4581, 4506 and one-half (1/2) of one-fourth (1/4) of Lot No. 1154 as belonging to the
estate of Francisco Reyes Diaz; (7) Declaring Irene Ondez to be the exclusive owner
of one-half (1/2) of Lot No. 2304 and one-half (1/2) of one-fourth (1/4) of Lot No.
3416; the remaining one-half (1/2) of Lot 2304 and the remaining one-half (1/2) of
one-fourth (1/4) of Lot No. 3416 as belonging to the estate of Francisco Reyes Diaz;
(8) Directing the division or partition of the estate of Francisco Reyes Diaz in such a
manner as to give or grant to Irene Ondez, as surviving widow of Francisco Reyes
Diaz, a hereditary share of. one-twelfth (1/12) of the whole estate of Francisco Reyes
Diaz (Art. 996 in relation to Art. 892, par 2, New Civil Code), and the remaining
portion of the estate to be divided among the plaintiffs Sinforosa R. Bales, Luz R.
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and
defendant Bernardita R. Macariola, in such a way that the extent of the total share of
plaintiff Sinforosa R. Bales in the hereditary estate shall not exceed the equivalent of
two-fifth (2/5) of the total share of any or each of the other plaintiffs and the
defendant (Art. 983, New Civil Code), each of the latter to receive equal shares from
the hereditary estate, (Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro,
O.G. [3rd Ed.] p. 33); (9) Directing the parties, within thirty days after this judgment
shall have become final to submit to this court, for approval a project of partition of
the hereditary estate in the proportion above indicated, and in such manner as the
parties may, by agreement, deemed convenient and equitable to them taking into
consideration the location, kind, quality, nature and value of the properties involved;
(10) Directing the plaintiff Sinforosa R. Bales and defendant Bernardita R. Macariola
to pay the costs of this suit, in the proportion of one-third (1/3) by the first named and
two-thirds (2/3) by the second named; and (I 1) Dismissing all other claims of the
parties [pp 27-29 of Exh. C].
The decision in civil case 3010 became final for lack of an appeal, and on October 16, 1963, a
project of partition was submitted to Judge Asuncion which is marked Exh. A. Notwithstanding the
fact that the project of partition was not signed by the parties themselves but only by the respective
counsel of plaintiffs and defendant, Judge Asuncion approved it in his Order dated October 23,
1963, which for convenience is quoted hereunder in full:
The parties, through their respective counsels, presented to this Court for approval
the following project of partition:
COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this
Honorable Court respectfully submit the following Project of Partition:
l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to Bernardita
Reyes Macariola;
2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern
part of the lot shall be awarded likewise to Bernardita R. Macariola;
3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales;
4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western
part of the lot shall likewise be awarded to Sinforosa Reyes-Bales;
5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares;
6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions
awarded under item (2) and (4) above shall be awarded to Luz Reyes Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares,
provided, however that the remaining portion of Lot No. 3416 shall belong exclusively
to Priscilla Reyes.
WHEREFORE, it is respectfully prayed that the Project of Partition indicated above
which is made in accordance with the decision of the Honorable Court be approved.
Tacloban City, October 16, 1963.
(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City
(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City
While the Court thought it more desirable for all the parties to have signed this
Project of Partition, nevertheless, upon assurance of both counsels of the respective
parties to this Court that the Project of Partition, as above- quoted, had been made
after a conference and agreement of the plaintiffs and the defendant approving the
above Project of Partition, and that both lawyers had represented to the Court that
they are given full authority to sign by themselves the Project of Partition, the Court,
therefore, finding the above-quoted Project of Partition to be in accordance with law,
hereby approves the same. The parties, therefore, are directed to execute such
papers, documents or instrument sufficient in form and substance for the vesting of
the rights, interests and participations which were adjudicated to the respective
parties, as outlined in the Project of Partition and the delivery of the respective
properties adjudicated to each one in view of said Project of Partition, and to perform
such other acts as are legal and necessary to effectuate the said Project of Partition.
SO ORDERED.
Given in Tacloban City, this 23rd day of October, 1963.
(SGD) ELIAS B. ASUNCION Judge
EXH. B.
The above Order of October 23, 1963, was amended on November 11, 1963, only for the purpose of
giving authority to the Register of Deeds of the Province of Leyte to issue the corresponding transfer
certificates of title to the respective adjudicatees in conformity with the project of partition (see Exh.
U).
One of the properties mentioned in the project of partition was Lot 1184 or rather one-half thereof
with an area of 15,162.5 sq. meters. This lot, which according to the decision was the exclusive
property of the deceased Francisco Reyes, was adjudicated in said project of partition to the
plaintiffs Luz, Anacorita Ruperto, Adela, and Priscilla all surnamed Reyes in equal shares, and when
the project of partition was approved by the trial court the adjudicatees caused Lot 1184 to be
subdivided into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V).
Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncions court (Exhs.
F, F-1 and V-1), while Lot 1184-E which had an area of 2,172.5556 sq. meters was sold on July 31,
1964 to Dr. Arcadio Galapon (Exh. 2) who was issued transfer certificate of title No. 2338 of the
Register of Deeds of the city of Tacloban (Exh. 12).
On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with an area of
around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion (Exh. 11), which
particular portion was declared by the latter for taxation purposes (Exh. F).
On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective shares and
interest in Lot 1184-E to "The Traders Manufacturing and Fishing Industries Inc." (Exit 15 & 16). At
the time of said sale the stockholders of the corporation were Dominador Arigpa Tan, Humilia
Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the latters wife, Victoria S. Asuncion, with
Judge Asuncion as the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The
Articles of Incorporation of "The Traders Manufacturing and Fishing Industries, Inc." which we shall
henceforth refer to as "TRADERS" were registered with the Securities and Exchange Commission
only on January 9, 1967 (Exh. E) [pp. 378-385, rec.].
Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968 alleging
four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491, paragraph 5, of the New Civil
Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties involved in Civil Case
No. 3010 decided by him; [2] that he likewise violated Article 14, paragraphs I and 5 of the Code of Commerce,
Section 3, paragraph H, of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, Section 12,
Rule XVIII of the Civil Service Rules, and Canon 25 of the Canons of Judicial Ethics, by associating himself with the
Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he was a judge of
the Court of First Instance of Leyte; [3] that respondent was guilty of coddling an impostor and acted in disregard of
judicial decorum by closely fraternizing with a certain Dominador Arigpa Tan who openly and publicly advertised
himself as a practising attorney when in truth and in fact his name does not appear in the Rolls of Attorneys and is
not a member of the Philippine Bar; and [4] that there was a culpable defiance of the law and utter disregard for
ethics by respondent Judge (pp. 1-7, rec.).
Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on October 16,
1968 by herein complainant. In Our resolution of October 28, 1968, We referred this case to then Justice Cecilia
Muoz Palma of the Court of Appeals, for investigation, report and recommendation. After hearing, the said
Investigating Justice submitted her report dated May 27, 1971 recommending that respondent Judge should be
reprimanded or warned in connection with the first cause of action alleged in the complaint, and for the second
cause of action, respondent should be warned in case of a finding that he is prohibited under the law to engage in
business. On the third and fourth causes of action, Justice Palma recommended that respondent Judge be
exonerated.
The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein instituted
an action before the Court of First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa R.
Bales, et al., defendants," which was docketed as Civil Case No. 4235, seeking the annulment of the project of
partition made pursuant to the decision in Civil Case No. 3010 and the two orders issued by respondent Judge
approving the same, as well as the partition of the estate and the subsequent conveyances with damages. It
appears, however, that some defendants were dropped from the civil case. For one, the case against Dr. Arcadio
Galapon was dismissed because he was no longer a real party in interest when Civil Case No. 4234 was filed,
having already conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on August 31, 1966 the
remainder was sold to the Traders Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant
Victoria Asuncion was dismissed on the ground that she was no longer a real party in interest at the time the
aforesaid Civil Case No. 4234 was filed as the portion of Lot 1184 acquired by her and respondent Judge from Dr.
Arcadio Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing industries, Inc.
Likewise, the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez,
Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo Petilla and
Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were dismissed with the
conformity of complainant herein, plaintiff therein, and her counsel.
On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was directed and
authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now Minister of National Defense
Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a decision, the dispositive portion of which
reads as follows:
A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION
(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction to take
cognizance of the issue of the legality and validity of the Project of Partition [Exhibit "B"] and the two
Orders [Exhibits "C" and "C- 3"] approving the partition;
(2) dismissing the complaint against Judge Elias B. Asuncion;
(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias B. Asuncion,
(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for moral
damages;
(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for exemplary
damages;
(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages; and
(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorneys Fees.
B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR
HERSELF AND FOR THE HEIRS OF THE DECEASED GERARDO VILLASIN
(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs of the deceased
Gerardo Villasin;
(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of Gerardo Villasin the
cost of the suit.
C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL.,
WHO WERE PLAINTIFFS IN CIVIL CASE NO. 3010
(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer, Priscilla R.
Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.
D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO
(1) Dismissing the complaint against Bonifacio Ramo;
(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.
SO ORDERED [pp. 531-533, rec.]
It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals upon perfection
of the appeal on February 22, 1971.
I
WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first cause of
action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New Civil Code in
acquiring by purchase a portion of Lot No. 1184-E which was one of those properties involved in Civil Case No.
3010. That Article provides:
Article 1491. The following persons cannot acquire by purchase, even at a public or judicial action,
either in person or through the mediation of another:
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers
and employees connected with the administration of justice, the property and rights in litigation or
levied upon an execution before the court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights which may be the object of any litigation in which
they may take part by virtue of their profession [emphasis supplied].
The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the subject of
litigation to the persons disqualified therein. WE have already ruled that "... for the prohibition to operate, the sale or
assignment of the property must take place during the pendency of the litigation involving the property" (The
Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de Laig vs. Court of Appeals, 86 SCRA
641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, the decision in
Civil Case No. 3010 which he rendered on June 8, 1963 was already final because none of the parties therein filed
an appeal within the reglementary period; hence, the lot in question was no longer subject of the litigation.
Moreover, at the time of the sale on March 6, 1965, respondents order dated October 23, 1963 and the amended
order dated November 11, 1963 approving the October 16, 1963 project of partition made pursuant to the June 8,
1963 decision, had long become final for there was no appeal from said orders.
Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the plaintiffs in Civil
Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot 1184-E from three of the
plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the decision in Civil Case
No. 3010. It may be recalled that Lot 1184 or more specifically one-half thereof was adjudicated in equal shares to
Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and Anacorita Reyes in the project of partition, and
the same was subdivided into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold
on July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the Register of Deeds of Tacloban City,
and on March 6, 1965 he sold a portion of said lot to respondent Judge and his wife who declared the same for
taxation purposes only. The subsequent sale on August 31, 1966 by spouses Asuncion and spouses Galapon of
their respective shares and interest in said Lot 1184-E to the Traders Manufacturing and Fishing Industries, Inc., in
which respondent was the president and his wife was the secretary, took place long after the finality of the decision
in Civil Case No. 3010 and of the subsequent two aforesaid orders therein approving the project of partition.
While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the Court of
First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of partition and the two orders
approving the same, as well as the partition of the estate and the subsequent conveyances, the same, however, is
of no moment.
The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr. Arcadio
Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in Civil Case No. 3010 and his
two questioned orders dated October 23, 1963 and November 11, 1963. Therefore, the property was no longer
subject of litigation.
The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or affect the
aforesaid facts that the questioned sale to respondent Judge, now Court of Appeals Justice, was effected and
consummated long after the finality of the aforesaid decision or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year after the
finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of partition, and not
during the pendency of the litigation, there was no violation of paragraph 5, Article 1491 of the New Civil Code.
It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio Galapon by
Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal the illegal and unethical
transfer of said lot to respondent Judge as a consideration for the approval of the project of partition. In this
connection, We agree with the findings of the Investigating Justice thus:
And so we are now confronted with this all-important question whether or not the acquisition by
respondent of a portion of Lot 1184-E and the subsequent transfer of the whole lot to "TRADERS" of
which respondent was the President and his wife the Secretary, was intimately related to the Order
of respondent approving the project of partition, Exh. A.
Respondent vehemently denies any interest or participation in the transactions between the
Reyeses and the Galapons concerning Lot 1184-E, and he insists that there is no evidence
whatsoever to show that Dr. Galapon had acted, in the purchase of Lot 1184-E, in mediation for him
and his wife. (See p. 14 of Respondents Memorandum).
xxx xxx xxx
On this point, I agree with respondent that there is no evidence in the record showing that Dr.
Arcadio Galapon acted as a mere "dummy" of respondent in acquiring Lot 1184-E from the Reyeses.
Dr. Galapon appeared to this investigator as a respectable citizen, credible and sincere, and I
believe him when he testified that he bought Lot 1184-E in good faith and for valuable consideration
from the Reyeses without any intervention of, or previous understanding with Judge Asuncion (pp.
391- 394, rec.).
On the contention of complainant herein that respondent Judge acted illegally in approving the project of partition
although it was not signed by the parties, We quote with approval the findings of the Investigating Justice, as
follows:
1. I agree with complainant that respondent should have required the signature of the parties more
particularly that of Mrs. Macariola on the project of partition submitted to him for approval; however,
whatever error was committed by respondent in that respect was done in good faith as according to
Judge Asuncion he was assured by Atty. Bonifacio Ramo, the counsel of record of Mrs. Macariola,
That he was authorized by his client to submit said project of partition, (See Exh. B and tsn p. 24,
January 20, 1969). While it is true that such written authority if there was any, was not presented by
respondent in evidence, nor did Atty. Ramo appear to corroborate the statement of respondent, his
affidavit being the only one that was presented as respondents Exh. 10, certain actuations of Mrs.
Macariola lead this investigator to believe that she knew the contents of the project of partition, Exh.
A, and that she gave her conformity thereto. I refer to the following documents:
1) Exh. 9 Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban Cadastral
Survey in which the deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a). On tills certificate of
title the Order dated November 11, 1963, (Exh. U) approving the project of partition was duly entered
and registered on November 26, 1963 (Exh. 9-D);
2) Exh. 7 Certified copy of a deed of absolute sale executed by Bernardita Reyes Macariola
onOctober 22, 1963, conveying to Dr. Hector Decena the one-fourth share of the late Francisco
Reyes-Diaz in Lot 1154. In this deed of sale the vendee stated that she was the absolute owner of
said one-fourth share, the same having been adjudicated to her as her share in the estate of her
father Francisco Reyes Diaz as per decision of the Court of First Instance of Leyte under case No.
3010 (Exh. 7-A). The deed of sale was duly registered and annotated at the back of OCT 19520 on
December 3, 1963 (see Exh. 9-e).
In connection with the abovementioned documents it is to be noted that in the project of partition
dated October 16, 1963, which was approved by respondent on October 23, 1963, followed by an
amending Order on November 11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs.
Macariola. It is this 1/4 share in Lot 1154 which complainant sold to Dr. Decena on October 22,
1963, several days after the preparation of the project of partition.
Counsel for complainant stresses the view, however, that the latter sold her one-fourth share in Lot
1154 by virtue of the decision in Civil Case 3010 and not because of the project of partition, Exh. A.
Such contention is absurd because from the decision, Exh. C, it is clear that one-half of one- fourth
of Lot 1154 belonged to the estate of Francisco Reyes Diaz while the other half of said one-fourth
was the share of complainants mother, Felisa Espiras; in other words, the decision did not
adjudicate the whole of the one-fourth of Lot 1154 to the herein complainant (see Exhs. C-3 & C-4).
Complainant became the owner of the entire one-fourth of Lot 1154 only by means of the project of
partition, Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was for no other
reason than that she was wen aware of the distribution of the properties of her deceased father as
per Exhs. A and B. It is also significant at this point to state that Mrs. Macariola admitted during the
cross-examination that she went to Tacloban City in connection with the sale of Lot 1154 to Dr.
Decena (tsn p. 92, November 28, 1968) from which we can deduce that she could not have been
kept ignorant of the proceedings in civil case 3010 relative to the project of partition.
Complainant also assails the project of partition because according to her the properties adjudicated
to her were insignificant lots and the least valuable. Complainant, however, did not present any
direct and positive evidence to prove the alleged gross inequalities in the choice and distribution of
the real properties when she could have easily done so by presenting evidence on the area,
location, kind, the assessed and market value of said properties. Without such evidence there is
nothing in the record to show that there were inequalities in the distribution of the properties of
complainants father (pp. 386389, rec.).
Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil Code in
acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was, however, improper for him
to have acquired the same. He should be reminded of Canon 3 of the Canons of Judicial Ethics which requires that:
"A judges official conduct should be free from the appearance of impropriety, and his personal behavior, not only
upon the bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach."
And as aptly observed by the Investigating Justice: "... it was unwise and indiscreet on the part of respondent to
have purchased or acquired a portion of a piece of property that was or had been in litigation in his court and caused
it to be transferred to a corporation of which he and his wife were ranking officers at the time of such transfer. One
who occupies an exalted position in the judiciary has the duty and responsibility of maintaining the faith and trust of
the citizenry in the courts of justice, so that not only must he be truly honest and just, but his actuations must be
such as not give cause for doubt and mistrust in the uprightness of his administration of justice. In this particular
case of respondent, he cannot deny that the transactions over Lot 1184-E are damaging and render his actuations
open to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E was no longer in litigation in his
court and that he was purchasing it from a third person and not from the parties to the litigation, he should
nonetheless have refrained from buying it for himself and transferring it to a corporation in which he and his wife
were financially involved, to avoid possible suspicion that his acquisition was related in one way or another to his
official actuations in civil case 3010. The conduct of respondent gave cause for the litigants in civil case 3010, the
lawyers practising in his court, and the public in general to doubt the honesty and fairness of his actuations and the
integrity of our courts of justice" (pp. 395396, rec.).
II
With respect to the second cause of action, the complainant alleged that respondent Judge violated paragraphs 1
and 5, Article 14 of the Code of Commerce when he associated himself with the Traders Manufacturing and Fishing
Industries, Inc. as a stockholder and a ranking officer, said corporation having been organized to engage in
business. Said Article provides that:
Article 14 The following cannot engage in commerce, either in person or by proxy, nor can they
hold any office or have any direct, administrative, or financial intervention in commercial or industrial
companies within the limits of the districts, provinces, or towns in which they discharge their duties:
1. Justices of the Supreme Court, judges and officials of the department of public prosecution in
active service. This provision shall not be applicable to mayors, municipal judges, and municipal
prosecuting attorneys nor to those who by chance are temporarily discharging the functions of judge
or prosecuting attorney.
xxx xxx xxx
5. Those who by virtue of laws or special provisions may not engage in commerce in a determinate
territory.
It is Our considered view that although the aforestated provision is incorporated in the Code of Commerce which is
part of the commercial laws of the Philippines, it, however, partakes of the nature of a political law as it regulates the
relationship between the government and certain public officers and employees, like justices and judges.
Political Law has been defined as that branch of public law which deals with the organization and operation of the
governmental organs of the State and define the relations of the state with the inhabitants of its territory (People vs.
Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political law embraces constitutional law, law of public
corporations, administrative law including the law on public officers and elections. Specifically, Article 14 of the Code
of Commerce partakes more of the nature of an administrative law because it regulates the conduct of certain public
officers and employees with respect to engaging in business: hence, political in essence.
It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885, with some
modifications made by the "Commission de Codificacion de las Provincias de Ultramar," which was extended to the
Philippines by the Royal Decree of August 6, 1888, and took effect as law in this jurisdiction on December 1, 1888.
Upon the transfer of sovereignty from Spain to the United States and later on from the United States to the Republic
of the Philippines, Article 14 of this Code of Commerce must be deemed to have been abrogated because where
there is change of sovereignty, the political laws of the former sovereign, whether compatible or not with those of the
new sovereign, are automatically abrogated, unless they are expressly re-enacted by affirmative act of the new
sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:
By well-settled public law, upon the cession of territory by one nation to another, either following a
conquest or otherwise, ... those laws which are political in their nature and pertain to the
prerogatives of the former government immediately cease upon the transfer of sovereignty. (Opinion,
Atty. Gen., July 10, 1899).
While municipal laws of the newly acquired territory not in conflict with the, laws of the new
sovereign continue in force without the express assent or affirmative act of the conqueror, the
political laws do not. (Hallecks Int. Law, chap. 34, par. 14). However, such political laws of the prior
sovereignty as are not in conflict with the constitution or institutions of the new sovereign, may be
continued in force if the conqueror shall so declare by affirmative act of the commander-in-chief
during the war, or by Congress in time of peace. (Elys Administrator vs. United States, 171 U.S.
220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26
U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said:
On such transfer (by cession) of territory, it has never been held that the relations of
the inhabitants with each other undergo any change. Their relations with their former
sovereign are dissolved, and new relations are created between them and the
government which has acquired their territory. The same act which transfers their
country, transfers the allegiance of those who remain in it; and the law which may be
denominated political, is necessarily changed, although that which regulates the
intercourse and general conduct of individuals, remains in force, until altered by the
newly- created power of the State.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general principle of the
public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated. "
There appears no enabling or affirmative act that continued the effectivity of the aforestated provision of the Code of
Commerce after the change of sovereignty from Spain to the United States and then to the Republic of the
Philippines. Consequently, Article 14 of the Code of Commerce has no legal and binding effect and cannot apply to
the respondent, then Judge of the Court of First Instance, now Associate Justice of the Court of Appeals.
It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides that:
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:
xxx xxx xxx
(h) Directly or indirectly having financial or pecuniary interest in any business,
contract or transaction in connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the Constitution or by any Iaw from
having any interest.
Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing that
respondent participated or intervened in his official capacity in the business or transactions of the Traders
Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the corporation in which respondent
participated has obviously no relation or connection with his judicial office. The business of said corporation is not
that kind where respondent intervenes or takes part in his capacity as Judge of the Court of First Instance. As was
held in one case involving the application of Article 216 of the Revised Penal Code which has a similar prohibition
on public officers against directly or indirectly becoming interested in any contract or business in which it is his
official duty to intervene, "(I)t is not enough to be a public official to be subject to this crime; it is necessary that by
reason of his office, he has to intervene in said contracts or transactions; and, hence, the official who intervenes in
contracts or transactions which have no relation to his office cannot commit this crime. (People vs. Meneses, C.A.
40 O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).
It does not appear also from the records that the aforesaid corporation gained any undue advantage in its business
operations by reason of respondents financial involvement in it, or that the corporation benefited in one way or
another in any case filed by or against it in court. It is undisputed that there was no case filed in the different
branches of the Court of First Instance of Leyte in which the corporation was either party plaintiff or defendant
except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales, et al.,"wherein the
complainant herein sought to recover Lot 1184-E from the aforesaid corporation. It must be noted, however, that
Civil Case No. 4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge
Jose D. Nepomuceno when respondent Judge was no longer connected with the corporation, having disposed of his
interest therein on January 31, 1967.
Furthermore, respondent is not liable under the same paragraph because there is no provision in both the 1935 and
1973 Constitutions of the Philippines, nor is there an existing law expressly prohibiting members of the Judiciary
from engaging or having interest in any lawful business.
It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948, does not
contain any prohibition to that effect. As a matter of fact, under Section 77 of said law, municipal judges may engage
in teaching or other vocation not involving the practice of law after office hours but with the permission of the district
judge concerned.
Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as heretofore
stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to America, because it is
political in nature.
Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by judges of a
property in litigation before the court within whose jurisdiction they perform their duties, cannot apply to respondent
Judge because the sale of the lot in question to him took place after the finality of his decision in Civil Case No.
3010 as well as his two orders approving the project of partition; hence, the property was no longer subject of
litigation.
In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service Act of 1959
prohibits an officer or employee in the civil service from engaging in any private business, vocation, or profession or
be connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the
head of department, the same, however, may not fall within the purview of paragraph h, Section 3 of the Anti-Graft
and Corrupt Practices Act because the last portion of said paragraph speaks of a prohibition by the Constitution or
law on any public officer from having any interest in any business and not by a mere administrative rule or
regulation. Thus, a violation of the aforesaid rule by any officer or employee in the civil service, that is, engaging in
private business without a written permission from the Department Head may not constitute graft and corrupt
practice as defined by law.
On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil Service Rules,
We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules promulgated thereunder,
particularly Section 12 of Rule XVIII, do not apply to the members of the Judiciary. Under said Section 12: "No
officer or employee shall engage directly in any private business, vocation, or profession or be connected with any
commercial, credit, agricultural or industrial undertaking without a written permission from the Head of Department
..."
It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by Republic Act
No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7, Article X, 1973 Constitution.
Under Section 67 of said law, the power to remove or dismiss judges was then vested in the President of the
Philippines, not in the Commissioner of Civil Service, and only on two grounds, namely, serious misconduct and
inefficiency, and upon the recommendation of the Supreme Court, which alone is authorized, upon its own motion,
or upon information of the Secretary (now Minister) of Justice to conduct the corresponding investigation. Clearly,
the aforesaid section defines the grounds and prescribes the special procedure for the discipline of judges.
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can discipline judges of
inferior courts as well as other personnel of the Judiciary.
It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ... violation of the
existing Civil Service Law and rules or of reasonable office regulations, or in the interest of the service, remove any
subordinate officer or employee from the service, demote him in rank, suspend him for not more than one year
without pay or fine him in an amount not exceeding six months salary." Thus, a violation of Section 12 of Rule XVIII
is a ground for disciplinary action against civil service officers and employees.
However, judges cannot be considered as subordinate civil service officers or employees subject to the disciplinary
authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not the head of the Judicial
Department to which they belong. The Revised Administrative Code (Section 89) and the Civil Service Law itself
state that the Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260) [1959]); and
under the 1973 Constitution, the Judiciary is the only other or second branch of the government (Sec. 1, Art. X, 1973
Constitution). Besides, a violation of Section 12, Rule XVIII cannot be considered as a ground for disciplinary action
against judges because to recognize the same as applicable to them, would be adding another ground for the
discipline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes only two grounds for their
removal, namely, serious misconduct and inefficiency.
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service who has
original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after submission to it, all
administrative cases against permanent officers and employees in the competitive service, and, except as provided
by law, to have final authority to pass upon their removal, separation, and suspension and upon all matters relating
to the conduct, discipline, and efficiency of such officers and employees; and prescribe standards, guidelines and
regulations governing the administration of discipline" (emphasis supplied). There is no question that a judge belong
to the non-competitive or unclassified service of the government as a Presidential appointee and is therefore not
covered by the aforesaid provision. WE have already ruled that "... in interpreting Section 16(i) of Republic Act No.
2260, we emphasized that only permanent officers and employees who belong to the classified service come under
the exclusive jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-
Angco vs. Castillo, 9 SCRA 619 [1963]).
Although the actuation of respondent Judge in engaging in private business by joining the Traders Manufacturing
and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the provissions of Article 14 of
the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule
XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act of 1959, the impropriety of the same is
clearly unquestionable because Canon 25 of the Canons of Judicial Ethics expressly declares that:
A judge should abstain from making personal investments in enterprises which are apt to be
involved in litigation in his court; and, after his accession to the bench, he should not retain such
investments previously made, longer than a period sufficient to enable him to dispose of them
without serious loss. It is desirable that he should, so far as reasonably possible, refrain from all
relations which would normally tend to arouse the suspicion that such relations warp or bias his
judgment, or prevent his impartial attitude of mind in the administration of his judicial duties. ...
WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on January 31, 1967
from the aforesaid corporation and sold their respective shares to third parties, and it appears also that the aforesaid
corporation did not in anyway benefit in any case filed by or against it in court as there was no case filed in the
different branches of the Court of First Instance of Leyte from the time of the drafting of the Articles of Incorporation
of the corporation on March 12, 1966, up to its incorporation on January 9, 1967, and the eventual withdrawal of
respondent on January 31, 1967 from said corporation. Such disposal or sale by respondent and his wife of their
shares in the corporation only 22 days after the incorporation of the corporation, indicates that respondent realized
that early that their interest in the corporation contravenes the aforesaid Canon 25. Respondent Judge and his wife
therefore deserve the commendation for their immediate withdrawal from the firm after its incorporation and before it
became involved in any court litigation
III
With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of coddling an
impostor and acted in disregard of judicial decorum, and that there was culpable defiance of the law and utter
disregard for ethics. WE agree, however, with the recommendation of the Investigating Justice that respondent
Judge be exonerated because the aforesaid causes of action are groundless, and WE quote the pertinent portion of
her report which reads as follows:
The basis for complainants third cause of action is the claim that respondent associated and closely
fraternized with Dominador Arigpa Tan who openly and publicly advertised himself as a practising
attorney (see Exhs. I, I-1 and J) when in truth and in fact said Dominador Arigpa Tan does not
appear in the Roll of Attorneys and is not a member of the Philippine Bar as certified to in Exh. K.
The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and claims that all
the time he believed that the latter was a bona fide member of the bar. I see no reason for
disbelieving this assertion of respondent. It has been shown by complainant that Dominador Arigpa
Tan represented himself publicly as an attorney-at-law to the extent of putting up a signboard with
his name and the words "Attorney-at Law" (Exh. I and 1- 1) to indicate his office, and it was but
natural for respondent and any person for that matter to have accepted that statement on its face
value. "Now with respect to the allegation of complainant that respondent is guilty of fraternizing with
Dominador Arigpa Tan to the extent of permitting his wife to be a godmother of Mr. Tans child at
baptism (Exh. M & M-1), that fact even if true did not render respondent guilty of violating any canon
of judicial ethics as long as his friendly relations with Dominador A. Tan and family did not influence
his official actuations as a judge where said persons were concerned. There is no tangible
convincing proof that herein respondent gave any undue privileges in his court to Dominador Arigpa
Tan or that the latter benefitted in his practice of law from his personal relations with respondent, or
that he used his influence, if he had any, on the Judges of the other branches of the Court to favor
said Dominador Tan.
Of course it is highly desirable for a member of the judiciary to refrain as much as possible from
maintaining close friendly relations with practising attorneys and litigants in his court so as to avoid
suspicion that his social or business relations or friendship constitute an element in determining his
judicial course" (par. 30, Canons of Judicial Ethics), but if a Judge does have social relations, that in
itself would not constitute a ground for disciplinary action unless it be clearly shown that his social
relations be clouded his official actuations with bias and partiality in favor of his friends (pp. 403-405,
rec.).
In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not violate any
law in acquiring by purchase a parcel of land which was in litigation in his court and in engaging in business by
joining a private corporation during his incumbency as judge of the Court of First Instance of Leyte, he should be
reminded to be more discreet in his private and business activities, because his conduct as a member of the
Judiciary must not only be characterized with propriety but must always be above suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY
REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.
SO ORDERED.
Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, JJ., concur.
Concepcion Jr., J., is on leave.
Fernando, C.J., Abad Santos and Esolin JJ., took no part.
Separate Opinions
AQUINO, J ., concurring and dissenting:
I vote for respondents unqualified exoneration.
BARREDO, J ., concurring and dissenting:
I vote with Justice Aquino.
Separate Opinions
AQUINO, J ., concurring and dissenting:
I vote for respondents unqualified exoneration.
BARREDO, J ., concurring and dissenting:
I vote with Justice Aquino.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2348 February 27, 1950
GREGORIO PERFECTO, plaintiff-appellee,
vs.
BIBIANO MEER, Collector of Internal Revenue, defendant-appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Francisco Carreon for oppositor and appellant.
Gregorio Perfecto in his own behalf.
BENGZON, J .:
In April, 1947 the Collector of Internal Revenue required Mr. Justice Gregorio Perfecto to pay income tax upon his
salary as member of this Court during the year 1946. After paying the amount (P802), he instituted this action in the
Manila Court of First Instance contending that the assessment was illegal, his salary not being taxable for the
reason that imposition of taxes thereon would reduce it in violation of the Constitution.
The Manila judge upheld his contention, and required the refund of the amount collected. The defendant appealed.
The death of Mr. Justice Perfecto has freed us from the embarrassment of passing upon the claim of a colleague.
Still, as the outcome indirectly affects all the members of the Court, consideration of the matter is not without its
vexing feature. Yet adjudication may not be declined, because (a) we are not legally disqualified; (b) jurisdiction may
not be renounced, ad it is the defendant who appeals to this Court, and there is no other tribunal to which the
controversy may be referred; (c) supreme courts in the United States have decided similar disputes relating to
themselves; (d) the question touches all the members of the judiciary from top to bottom; and (e) the issue involves
the right of other constitutional officers whose compensation is equally protected by the Constitution, for instance,
the President, the Auditor-General and the members of the Commission on Elections. Anyway the subject has been
thoroughly discussed in many American lawsuits and opinions, and we shall hardly do nothing more than to borrow
therefrom and to compare their conclusions to local conditions. There shall be little occasion to formulate new
propositions, for the situation is not unprecedented.
Our Constitution provides in its Article VIII, section 9, that the members of the Supreme Court and all judges of
inferior courts "shall receive such compensation as may be fixed by law, which shall not be diminished during their
continuance in office." It also provides that "until Congress shall provide otherwise, the Chief Justice of the Supreme
Court shall receive an annual compensation of sixteen thousand pesos". When in 1945 Mr. Justice Perfecto
assumed office, Congress had not "provided otherwise", by fixing a different salary for associate justices. He
received salary at the rate provided by the Constitution, i.e., fifteen thousand pesos a year.
Now, does the imposition of an income tax upon this salary in 1946 amount to a diminution thereof?.
A note found at page 534 of volume 11 of the American Law Reports answers the question in the affirmative. It
says:
Where the Constitution of a state provides that the salaries of its judicial officers shall not be dismissed
during their continuance in office, it had been held that the state legislature cannot impose a tax upon the
compensation paid to the judges of its court. New Orleans v. Lea (1859) 14 La. Ann. 194; Opinion of
Attorney-General if N. C. (1856) 48 N. C. (3 Jones, L.) Appx. 1; Re Taxation of Salaries of Judges (1902)
131 N. C. 692, 42 S. E. 970; Com. ex. rel. Hepburn v. Mann (1843) 5 Watts & S,. (Pa.) 403 [but see to the
contrary the earlier and much criticized case of Northumberland county v. Chapman (1829) 2 Rawle (Pa.)
73]
*
A different rule prevails in Wisconsin, according to the same annotation. Another state holding the contrary view is
Missouri.
The Constitution of the United States, likes ours, forbids the diminution of the compensation of Judges of the
Supreme Court and of inferior courts. The Federal Governments has an income tax law. Does it embrace the
salaries of federal judges? In answering this question, we should consider four periods:
First period. No attempts was made to tax the compensation of Federal judges up to 1862
1
.
Second period. 1862-1918. In July, 1862, a statute was passed subjecting the salaries of "civil officers of the United
States" to an income tax of three per cent. Revenue officers, construed it as including the compensation of all
judges; but Chief Justice Taney, speaking for the judiciary, wrote to the Secretary of the Treasury a letter of protest
saying, among other things:
The act in question, as you interpret it, diminishes the compensation of every judge 3 per cent, and if it can
be diminished to that extent by the name of a tax, it may, in the same way, be reduced from time to time, at
the pleasure of the legislature.
The judiciary is one of the three great departments of the government, created and established by the
Constitution. Its duties and powers are specifically set forth, and are of a character that requires it to be
perfectly independent of the two other departments, and in order to place it beyond the reach and above
even the suspicion of any such influence, the power to reduce their compensation is expressly withheld from
Congress, and excepted from their powers of legislation.
Language could not be more plain than that used in the Constitution. It is, moreover, one of its most
important and essential provisions. For the articles which limits the powers of the legislative and executive
branches of the government, and those which provide safeguards for the protection of the citizen in his
person and property, would be of little value without a judiciary to uphold and maintain them, which was free
from every influence, direct and indirect, that might by possibility in times of political excitement warp their
judgments.
Upon these grounds I regard an act of Congress retaining in the Treasury a portion of the Compensation of
the judges, as unconstitutional and void
2
.
The protest was unheeded, although it apparently bore the approval of the whole Supreme Court, that ordered it
printed among its records. But in 1869 Attorney-General Hoar upon the request of the Secretary of the Treasury
rendered an opinion agreeing with the Chief Justice. The collection of the tax was consequently discontinued and
the amounts theretofore received were all refunded. For half a century thereafter judges salaries were not taxed as
income.
3
Third period. 1919-1938. The Federal Income Tax Act of February 24, 1919 expressly provided that taxable income
shall include "the compensation of the judges of the Supreme Court and inferior courts of the United States". Under
such Act, Walter Evans, United States judge since 1899, paid income tax on his salary; and maintaining that the
impost reduced his compensation, he sued to recover the money he had delivered under protest. He was upheld in
1920 by the Supreme Court in an epoch-making decision.
*
, explaining the purpose, history and meaning of the
Constitutional provision forbidding impairment of judicial salaries and the effect of an income tax upon the salary of a
judge.
With what purpose does the Constitution provide that the compensation of the judges "shall not be
diminished during their continuance in office"? Is it primarily to benefit the judges, or rather to promote the
public weal by giving them that independence which makes for an impartial and courageous discharge of the
judicial function? Does the provision merely forbid direct diminution, such as expressly reducing the
compensation from a greater to a less sum per year, and thereby leave the way open for indirect, yet
effective, diminution, such as withholding or calling back a part as tax on the whole? Or does it mean that
the judge shall have a sure and continuing right to the compensation, whereon he confidently may rely for
his support during his continuance in office, so that he need have no apprehension lest his situation in this
regard may be changed to his disadvantage?
The Constitution was framed on the fundamental theory that a larger measure of liberty and justice would be
assured by vesting the three powers the legislative, the executive, and the judicial in separate
departments, each relatively independent of the others and it was recognized that without this independence
if it was not made both real and enduring the separation would fail of its purpose. all agreed that
restraints and checks must be imposed to secure the requisite measure of independence; for otherwise the
legislative department, inherently the strongest, might encroach on or even come to dominate the others,
and the judicial, naturally the weakest, might be dwarf or swayed by the other two, especially by the
legislative.
The particular need for making the judiciary independent was elaborately pointed our by Alexander Hamilton
in the Federalist, No. 78, from which we excerpt the following:
x x x x x x x x x
At a later period John Marshall, whose rich experience as lawyer, legislator, and chief justice enable him to
speak as no one else could, tersely said (debates Va. Gonv. 1829-1831, pp. 616, 619): . . . Our courts are
the balance wheel of our whole constitutional system; and our is the only constitutional system so balanced
and controlled. Other constitutional systems lacks complete poise and certainly of operation because they
lack the support and interpretation of authoritative, undisputable courts of law. It is clear beyond all need of
exposition that for the definite maintenance of constitutional understandings it is indispensable, alike for the
preservation of the liberty of the individual and for the preservation of the integrity of the powers of the
government, that there should be some nonpolitical forum in which those understandings can be impartially
debated and determined. That forum our courts supply. There the individual may assert his rights; there the
government must accept definition of its authority. There the individual may challenge the legality of
governmental action and have it adjudged by the test of fundamental principles, and that test the
government must abide; there the government can check the too aggressive self-assertion of the individual
and establish its power upon lines which all can comprehend and heed. The constitutional powers of the
courts constitute the ultimate safeguard alike of individual privilege and of governmental prerogative. It is in
this sense that our judiciary is the balance wheel of our entire system; it is meant to maintain that nice
adjustment between individual rights and governmental powers which constitutes political liberty.
Constitutional government in the United States, pp. 17, 142.
Conscious in the nature and scope of the power being vested in the national courts, recognizing that they
would be charge with responsibilities more delicate and important than any ever before confide to judicial
tribunals, and appreciating that they were to be, in the words of George Washington, "the keystone of our
political fabric", the convention with unusual accord incorporated in the Constitution the provision that the
judges "shall hold their offices during good behavior, and shall at stated times receive for their services a
compensation which shall not be diminished during their continuance in office." Can there be any doubt that
the two things thus coupled in place the clause in respect of tenure during good behaviour and that in
respect of an undiminishable compensation-were equally coupled in purpose? And is it not plain that their
purposes was to invest the judges with an independence in keeping with the delicacy and importance of
their task, and with the imperative need for its impartial and fearless performance? Mr. Hamilton said in
explanation and support of the provision (Federalist No. 79): "Next to permanency in office, nothing can
contribute more to the independence of the judges than a fixed provision for their support. . . . In the general
course of human nature, a power over a mans subsistence amounts to a power over his will.
x x x x x x x x x
These considerations make it very plain, as we think, that the primary purpose of the prohibition against
diminution was not to benefit the judges, but, like the clause in respect of tenure, to attract good and
competent men to the bench, and to promote that independence of action and judgment which is essential
to the maintenance of the guaranties, limitations, and pervading principles of the constitution, and to the
admiration of justice without respect to persons, and with equal concern for the poor and the rich.
x x x x x x x x x
But it is urged that what plaintiff was made to pay back was an income tax, and that a like tax was exacted
of others engaged in private employment.
If the tax in respect of his compensation be prohibited, it can find no justification in the taxation of other
income as to which there is no prohibition, for, of course, doing what the Constitution permits gives no
license to do what it prohibits.
The prohibition is general, contains no excepting words, and appears to be directed against all diminution,
whether for one purpose or another; and the reason for its adoption, as publicly assigned at the time and
commonly accepted ever since, make with impelling force for the conclusion that the fathers of the
Constitution intended to prohibit diminution by taxation as well as otherwise, that they regarded the
independence of the judges as of far greater importance than any revenue that could come from taxing their
salaries. (American law Reports, annotated, Vol. 11, pp. 522-25; Evans vs. Gore, supra.)
In September 1, 1919, Samuel J. Graham assumed office as judge of the Unites States court of claims. His salary
was taxed by virtue of the same time income tax of February 24, 1919. At the time he qualified, a statute fixed his
salary at P7,500. He filed action for reimbursement, submitting the same theory on which Evans v. Gore had been
decided. The Supreme Court of the United States in 1925 reaffirmed that decision. It overruled the distinction
offered by Solicitor-General Beck that Judge Graham took office after the income tax had been levied on judicial
salaries, (Evans qualified before), and that Congress had power "to impose taxes which should apply to the salaries
of Federal judges appointed after the enactment of the taxing statute." (The law had made no distinction as to
judges appointed before or after its passage)
Fourth period. 1939 Foiled in their previous attempts, the Revenue men persisted, and succeeded in inserting in
the United States Revenue Act of June, 1932 the modified proviso that "gross income" on which taxes were payable
included the compensation "of judges of courts of the United States taking office after June 6, 1932". Joseph W.
Woodrough qualified as United States circuit judge on May 1, 1933. His salary as judge was taxed, and before the
Supreme Court of the United States the issue of decrease of remuneration again came up. That court, however,
ruled against him, declaring (in 1939) that Congress had the power to adopt the law. It said:
The question immediately before us is whether Congress exceeded its constitutional power in providing that
United States judges appointed after the Revenue Act of 1932 shall not enjoy immunity from the incidence of
taxation to which everyone else within the defined classes of income is subjected. Thereby, of course,
Congress has committed itself to the position that a non-discriminatory tax laid generally on net income is
not, when applied to the income of federal judge, a diminution of his salary within the prohibition of Article 3,
Sec. 1 of the Constitution. To suggest that it makes inroads upon the independence of judges who took
office after the Congress has thus charged them with the common duties of citizenship, by making them
bear their aliquot share of the cost of maintaining the Government, is to trivialize the great historic
experience on which the framers based the safeguards of Article 3, Sec. 1. To subject them to a general tax
is merely to recognize that judges also are citizens, and that their particular function in government does not
generate an immunity from sharing with their fellow citizens the material burden of the government whose
Constitution and laws they are charged with administering. (OMalley vs. Woodrough, 59 S. Ct. 838, A. L. R.
1379.)
Now, the case for the defendant-appellant Collector of Internal Revenue is premised mainly on this decision (Note
A). He claims it holds "that federal judges are subject to the payment of income taxes without violating the
constitutional prohibition against the reduction of their salaries during their continuance in office", and that it "is a
complete repudiation of the ratio decidenci of Evans vs. Gore". To grasp the full import of the OMalley precedent,
we should bear in mind that:
1. It does not entirely overturn Miles vs. Graham. "To the extent that what the Court now says is inconsistent with
what said in Miles vs. Graham, the latter can not survive", Justice Frankfurter announced.
2. It does not expressly touch nor amend the doctrine in Evans vs, Gore, although it indicates that the Congressional
Act in dispute avoided in part the consequences of that case.
Carefully analyzing the three cases (Evans, Miles and OMalley) and piecing them together, the logical conclusion
may be reached that although Congress may validly declare by law that salaries of judges appointed thereaftershall
be taxed as income (OMalley vs. Woodrough) it may not tax the salaries of those judges already in office at the time
of such declaration because such taxation would diminish their salaries (Evans vs. Gore; Miles vs. Graham). In this
manner the rationalizing principle that will harmonize the allegedly discordant decision may be condensed.
By the way, Justice Frankfurter, writing the OMalley decision, says the Evans precedent met with disfavor from
legal scholarship opinion. Examining the issues of Harvard Law review at the time of Evans vs. Gore (Frankfurter is
a Harvard graduate and professor), we found that such school publication criticized it. Believing this to be the
"inarticulate consideration that may have influenced the grounds on which the case went off"
4
, we looked into the
criticism, and discovered that it was predicated on the position that the 16th Amendment empowered Congress "to
collect taxes on incomes from whatever source derived" admitting of no exception. Said the Harvard Law Journal:
In the recent case of Evans vs. Gore the Supreme Court of the United States decided that by taxing the
salary of a federal judge as a part of his income, Congress was in effect reducing his salary and thus
violating Art. III, sec. 1, of the Constitution. Admitting for the present purpose that such a tax really is a
reduction of salary, even so it would seem that the words of the amendment giving power to tax incomes,
from whatever source derived, are sufficiently strong to overrule pro tanto the provisions of Art. III, sec. 1.
But, two years ago, the court had already suggested that the amendment in no way extended the subjects
open to federal taxation. The decision in Evans vs. Gore affirms that view, and virtually strikes from the
amendment the words "from whatever source derived". (Harvard law Review, vol. 34, p. 70)
The Unites States Courts shift of position
5
might be attributed to the above detraction which, without appearing on
the surface, led to Frankfurters sweeping expression about judges being also citizens liable to income tax. But it
must be remembered that undisclosed factor the 16th Amendment has no counterpart in the Philippine legal
system. Our Constitution does not repeat it. Wherefore, as the underlying influence and the unuttered reason has no
validity in this jurisdiction, the broad generality loses much of its force.
Anyhow the OMalley case declares no more than that Congress may validly enact a law taxing the salaries of
judges appointed after its passage. Here in the Philippines no such law has been approved.
Besides, it is markworthy that, as Judge Woodrough had qualified after the express legislative declaration taxing
salaries, he could not very well complain. The United States Supreme Court probably had in mind what in other
cases was maintained, namely, that the tax levied on the salary in effect decreased the emoluments of the office
and therefore the judge qualified with such reduced emoluments.
6
The OMalley ruling does not cover the situation in which judges already in office are made to pay tax by executive
interpretation, without express legislative declaration. That state of affairs is controlled by the administrative and
judicial standards herein-before described in the "second period" of the Federal Government, namely, the views of
Chief Justice Taney and of Attorney-General Hoar and the constant practice from 1869 to 1938, i.e., when the
Income Tax Law merely taxes "income" in general, it does not include salaries of judges protected from diminution.
In this connection the respondent would make capital of the circumstance that the Act of 1932, upheld in the
OMalley case, has subsequently been amended by making it applicable even to judges who took office before1932.
This shows, the appellant argues, that Congress interprets the OMalley ruling to permit legislative taxation of the
salary of judges whether appointed before the tax or after. The answer to this is that the Federal Supreme Court
expressly withheld opinion on that amendment in the OMalley case. Which is significant. Anyway, and again, there
is here no congressional directive taxing judges salaries.
Wherefore, unless and until our Legislature approves an amendment to the Income Tax Law expressly taxing "that
salaries of judges thereafter appointed", the OMalley case is not relevant. As in the United States during the second
period, we must hold that salaries of judges are not included in the word "income" taxed by the Income Tax Law.
Two paramount circumstances may additionally be indicated, to wit: First, when the Income Tax Law was first
applied to the Philippines 1913, taxable "income" did not include salaries of judicial officers when these are
protected from diminution. That was the prevailing official belief in the United States, which must be deemed to have
been transplanted here;
7
and second, when the Philippine Constitutional Convention approved (in 1935) the
prohibition against diminution off the judges compensation, the Federal principle was known that income tax on
judicial salaries really impairs them. Evans vs. Gore and Miles vs. Graham were then outstanding doctrines; and the
inference is not illogical that in restraining the impairment of judicial compensation the Fathers of the Constitution
intended to preclude taxation of the same.
8
It seems that prior to the OMalley decision the Philippine Government did not collect income tax on salaries of
judges. This may be gleaned from General Circular No. 449 of the Department of Finance dated March 4, 1940,
which says in part:
x x x x x x x x x
The question of whether or not the salaries of judges should be taken into account in computing additional
residence taxes is closely linked with the liability of judges to income tax on their salaries, in fact, whatever
resolution is adopted with respect to either of said taxes be followed with respect to the other. The opinion of
the Supreme Court of the United States in the case of OMalley v. Woodrough, 59 S. Ct. 838, to which the
attention of this department has been drawn, appears to have enunciated a new doctrine regarding the
liability of judges to income tax upon their salaries. In view of the fact that the question is of great
significance, the matter was taken up in the Council of State, and the Honorable, the Secretary of Justice
was requested to give an opinion on whether or not, having in mind the said decision of the Supreme Court
of the United States in the case of OMalley v. Woodrough, there is justification in reversing our present
ruling to the effect that judges are not liable to tax on their salaries. After going over the opinion of the court
in the said case, the Honorable, the Secretary of Justice, stated that although the ruling of the Supreme
Court of the United States is not binding in the Philippines, the doctrine therein enunciated has resolved the
issue of the taxability of judges salaries into a question of policy. Forthwith, His Excellency the President
decided that the best policy to adopt would be to collect income and additional residence taxes from the
President of the Philippines, the members of the Judiciary, and the Auditor General, and the undersigned
was authorized to act accordingly.
In view of the foregoing, income and additional residence taxes should be levied on the salaries received by
the President of the Philippines, members of the Judiciary, and the Auditor General during the calendar year
1939 and thereafter. . . . . (Emphasis ours.)
Of course, the Secretary of Justice correctly opined that the OMalley decision "resolved the issue of taxability of
judges salaries into a question of policy." But that policy must be enunciated by Congressional enactment, as was
done in the OMalley case, not by Executive Fiat or interpretation.
This is not proclaiming a general tax immunity for men on the bench. These pay taxes. Upon buying gasoline, or
other commodities, they pay the corresponding duties. Owning real property, they pay taxes thereon. And on
incomes other than their judicial salary, assessments are levied. It is only when the tax is charged directly on their
salary and the effect of the tax is to diminish their official stipend that the taxation must be resisted as an
infringement of the fundamental charter.
Judges would indeed be hapless guardians of the Constitution if they did not perceive and block encroachments
upon their prerogatives in whatever form. The undiminishable character of judicial salaries is not a mere privilege of
judges personal and therefore waivable but a basic limitation upon legislative or executive action imposed in
the public interest. (Evans vs. Gore)
Indeed the exemption of the judicial salary from reduction by taxation is not really a gratuity or privilege. Let the
highest court of Maryland speak:
The exemption of the judicial compensation from reduction is not in any true sense a gratuity, privilege or
exemption. It is essentially and primarily compensation based upon valuable consideration. The covenant on
the part of the government is a guaranty whose fulfillment is as much as part of the consideration agreed as
is the money salary. The undertaking has its own particular value to the citizens in securing the
independence of the judiciary in crises; and in the establishment of the compensation upon a permanent
foundation whereby judicial preferment may be prudently accepted by those who are qualified by talent,
knowledge, integrity and capacity, but are not possessed of such a private fortune as to make an assured
salary an object of personal concern. On the other hand, the members of the judiciary relinquish their
position at the bar, with all its professional emoluments, sever their connection with their clients, and
dedicate themselves exclusively to the discharge of the onerous duties of their high office. So, it is irrefutable
that they guaranty against a reduction of salary by the imposition of a tax is not an exemption from taxation
in the sense of freedom from a burden or service to which others are liable. The exemption for a public
purpose or a valid consideration is merely a nominal exemption, since the valid and full consideration or the
public purpose promoted is received in the place of the tax. Theory and Practice of Taxation (1900), D. A.
Wells, p. 541. (Gordy vs. Dennis (Md.) 1939, 5 Atl. Rep. 2d Series, p. 80)
It is hard to see, appellants asserts, how the imposition of the income tax may imperil the independence of the
judicial department. The danger may be demonstrated. Suppose there is power to tax the salary of judges, and the
judiciary incurs the displeasure of the Legislature and the Executive. In retaliation the income tax law is amended so
as to levy a 30 per cent on all salaries of government officials on the level of judges. This naturally reduces the
salary of the judges by 30 per cent, but they may not grumble because the tax is general on all receiving the same
amount of earning, and affects the Executive and the Legislative branches in equal measure. However, means are
provided thereafter in other laws, for the increase of salaries of the Executive and the Legislative branches, or their
perquisites such as allowances, per diems, quarters, etc. that actually compensate for the 30 per cent reduction on
their salaries. Result: Judges compensation is thereby diminished during their incumbency thanks to the income tax
law. Consequence: Judges must "toe the line" or else. Second consequence: Some few judges might falter; the
great majority will not. But knowing the frailty of human nature, and this chink in the judicial armor, will the parties
losing their cases against the Executive or the Congress believe that the judicature has not yielded to their
pressure?
Respondent asserts in argumentation that by executive order the President has subjected his salary to the income
tax law. In our opinion this shows obviously that, without such voluntary act of the President, his salary would not be
taxable, because of constitutional protection against diminution. To argue from this executive gesture that the
judiciary could, and should act in like manner is to assume that, in the matter of compensation and power and need
of security, the judiciary is on a par with the Executive. Such assumption certainly ignores the prevailing state of
affairs.
The judgment will be affirmed. So ordered.
Moran, C.J., Pablo, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.
Separate Opinions
OZAETA., J., dissenting:
It is indeed embarrassing that this case was initiated by a member of this Court upon which devolves the duty to
decide it finally. The question of whether the salaries of the judges, the members of the Commission on Elections,
the Auditor General, and the President of the Philippines are immune from taxation, might have been raised by any
interested party other than a justice of the Supreme Court with less embarrassment to the latter.
The question is simple and not difficult of solution. We shall state our opinion as concisely as possible.
The first income tax law of the Philippines was Act No. 2833, which was approved on March 7, 1919, to take effect
on January 1, 1920. Section 1 (a) of said Act provided:
There shall be levied, assessed, collected, and paid annually upon the entire net income received in the
preceding calendar year from all sources by every individual, a citizen or resident of the Philippine Islands, a
tax of two per centum upon such income. . . . (Emphasis ours.)
Section 2 (a) of said Act provided:
Subject only to such exemptions and deductions as are hereinafter allowed, the taxable net income of a
person shall include gains, profits, and income derived from salaries, wages or compensation for personal
service of whatever kind and is whatever form paid, or from professions, vocations, businesses, trade,
commerce, sales, or dealings in property, whether real or personal, growing out of the ownership or use of
or interest in real or personal property, also from interest, rent, dividends, securities, or the transaction of
any business carried on for gain or profit, or gains, profits, and income derived from any source whatever.
That income tax law has been amended several times, specially as to the rates of the tax, but the above-quoted
provisions (except as to the rate) have been preserved intact in the subsequent Acts. The present income tax law is
Title II of the National Internal Revenue Code, Commonwealth Act No. 466, sections 21, 28 and 29 of which
incorporate the texts of the above-quoted provisions of the original Act in exactly the same language. There can be
no dispute whatsoever that judges (who are individuals) and their salaries (which are income) are as clearly
comprehended within the above-quoted provisions of the law as if they were specifically mentioned therein; and in
fact all judges had been and were paying income tax on their salaries when the Constitution of the Philippines was
discussed and approved by the Constitutional Convention and when it was submitted to the people for confirmation
in the plebiscite of May 14, 1935.
Now, the Constitution provides that the members of the Supreme Court and all judges of inferior courts "shall
receive such compensation as may be fixed by law, which shall not be diminished during their continuance in office."
(Section 9, Article VIII, emphasis ours.)
a
The simple question is: In approving the provisions against the diminution of the compensation of judges and other
specified officers during their continuance in office, did the framers of the Constitution intend to nullify the then
existing income tax law insofar as it imposed a tax on the salaries of said officers ? If they did not, then the income
tax law, which has been incorporated in the present National Internal Revenue Code, remains in force in its entirety
and said officers cannot claim exemption therefrom on their salaries.
Section 2 of Article XVI of the Constitution provides that all laws of the Philippine Islands shall remain operative,
unless inconsistent with this Constitution, until amended, altered, modified. or repealed by the Congress of the
Philippines.
In resolving the question at bar, we must take into consideration the following well-settled rules:
"A constitution shall be held to be prepared and adopted in reference to existing statutory laws, upon the
provisions of which in detail it must depend to be set in practical operation" (People vs. Potter, 47 N. Y. 375;
People vs. Draper, 15 N. Y. 537; Cass vs. Dillon, 2 Ohio St. 607; People vs. N. Y., 25 Wend. (N. Y. 22).
(Barry vs. Traux, 3 A. & E. Ann. Cas 191, 193.).
Courts are bound to presume that the people adopting a constitution are familiar with the previous and
existing laws upon the subjects to which its provisions relate, and upon which they express their judgment
and opinion in its adoption (Baltimore vs. State, 15 Md. 376, 480; 74 Am. Dec. 572; State vs. Mace, 5 Md.
337; Bandel vs. Isaac, 13 Md. 202; Manly vs. State, 7 Md. 135; Hamilton vs. St. Louis County Ct., 15 Mo. 5;
People vs. Gies, 25 Mich. 83; Servis vs. Beatty, 32 Miss. 52; Pope vs. Phifer, 3 Heisk. (Tenn.) 686; People
vs. Harding, 53 Mich. 48, 51 Am. Rep. 95; Creve Coeur Lake Ice Co. vs. Tamm, 138 Mo. 385, 39 S. W. Rep.
791). (Idem.)
A constitutional provision must be presumed to have been framed and adopted in the light and
understanding of prior and existing laws and with reference to them. Constitutions, like statutes, are properly
to be expounded in the light of conditions existing at the time of their adoption, the general spirit of the times,
and the prevailing sentiments among the people. Reference may be made to the historical facts relating to
the original or political institutions of the community or to prior well-known practices and usages. (11 Am.
Ju., Constitutional Law, 676-678.)
The salaries provided in the Constitution for the Chief Justice and each associate Justice, respectively, of the
Supreme Court were the same salaries ]which they were receiving at the time the Constitution was framed and
adopted and on which they were paying income tax under the existing income tax law. It seems clear to us that for
them to receive the same salaries, subject to the same tax, after the adoption of the Constitution as before does not
involve any diminution at all. The fact that the plaintiff was not a member of the Court when the Constitution took
effect, makes no difference. The salaries of justices and judges were subject to income tax when he was appointed
in the early part of 1945. In fact he must have declared and paid income tax on his salary for 19454 he claimed
exemption only beginning 1946. It seems likewise clear that when the framers of the Constitution fixed those
salaries, they must have taken into consideration that the recipients were paying income tax thereon. There was no
necessity to provide expressly that said salaries shall be subject to income tax because they knew that already so
provided. On the other hand, if exemption from any tax on said salaries had been intended, it would have been
specifically to so provide, instead of merely saying that the compensation as fixed "shall not be diminished during
their continuance in office."
In the light of the antecedents, the prohibition against diminution cannot be interpreted to include or refer to general
taxation but to a law by which said salaries may be fixed. The sentence in question reads: "They shall receive such
compensation as may be fixed by law, which shall not be diminished during their continuance in office." The next
sentence reads: "Until the Congress shall provide otherwise, the Chief Justice of the Supreme Court shall receive
an annual compensation of P16,000, and each associate Justice, P15,000." It is plain that the Constitution
authorizes the Congress to pass a law fixing another rate of compensation, but that such rate must be higher than
that which the justices receive at he time of its enactment or, if lower, it must not affect those justice already in
office. In other words, Congress may approve a law increasing the salaries of the justices at any time, but it cannot
approve a law decreasing their salaries unless such law is made effective only as to justices appointed after its
approval.
It would be a strained and unreasonable construction of the prohibition against diminution to read into it an
exemption from taxation. There is no justification for the belief or assumption that the framers of the Constitution
intended to exempt the salaries of said officers from taxes. They knew that it was and is the unavoidable duty of
every citizen to bear his aliquot share of the cost of maintaining the Government; that taxes are the very blood that
sustains the life of the Government. To make all citizens share the burden of taxation equitably, the Constitution
expressly provides that "the rule of taxation shall be uniform." (Section 22 [1], Article VI.) We think it would be a
contravention of this provision to read into the prohibition against diminution of the salaries of the judges and other
specified officers an exemption from taxes on their salaries. How could the rule of income taxation be uniform if it
should not be applied to a group of citizens in the same situation as other income earners ? It is to us inconceivable
that the framers ever intended to relieve certain officers of the Government from sharing with their fellows citizens
the material burden of the Government to exempt their salaries from taxes. Moreover, the Constitution itself
specifies what properties are exempt from taxes, namely: "Cemeteries, churches, and parsonages or convents
appurtenant thereto, and all lands, buildings, and improvements used exclusively for religious, charitable, or
educational purposes." (Sec. 22 [3], Article VI.) The omission of the salaries in question from this enumeration is in
itself an eloquent manifestation of intention to continue the imposition of taxes thereon as provided in the existing
law. Inclusio est exclusio alterius.
We have thus far read and construed the pertinent portions of our own Constitution and income tax law in the light of
the antecedent circumstances and of the operative factors which prevailed at the time our Constitution was framed,
independently of the construction now prevailing in the United States of similar provisions of the federal Constitution
in relation to the present federal income tax law, under which the justices of the Supreme Court, and the federal
judges are now, and since the case of OMalley vs. Woodrough was decided on May 22, 1939, have been, paying
income tax on their salaries. Were this a majority opinion, we could end here with the consequent reversal of the
judgment appealed from. But ours is a voice in the wilderness, and we may permit ourselves to utter it with more
vehemence and emphasis so that future players on this stage perchance may hear and heed it. Who knows? The
Gospel itself was a voice in the wilderness at the time it was uttered.
We have to comment on Anglo-American precedents since the majority decision from which we dissent is based on
some of them. Indeed, the majority say they "hardly do nothing more than to borrow therefrom and to compare their
conclusions to local conditions." which we shall presently show did not obtain in the United States at the time the
federal and state Constitutions were adopted. We shall further show that in any event what they now borrow is not
usable because it has long been withdrawn from circulation.
When the American Constitution was framed and adopted, there was no income tax law in the United States. To this
circumstance may be attributed the claim made by some federal judges headed by Chief Justice Taney, when under
the Act of Congress of July 1, 1862, their salaries were subjected to an income tax, that such tax was a diminution
of their salaries and therefore prohibited by the Constitution. Chief Justice Taneys claim and his protest against the
tax were not heeded, but no federal judge deemed it proper to sue the Collector of Internal Revenue to recover the
taxes they continued to pay under protest for several years. In 1869, the Secretary of the Treasury referred the
question to Atty. General Hoar, and that officer rendered an opinion in substantial accord with Chief Justice Taneys
protest, and also advised that the tax on the Presidents compensation was likewise invalid. No judicial
pronouncement, however, was made of such invalidity until June 1, 1920, when the case of Evans vs. Gore(253
U.S. 245, 64 L. ed. 887) was decided upon the constitutionality of section 213 of the Act of February 24, 1919, which
required the computation of incomes for the purpose of taxation to embrace all gains, profits, income and the like,
"including in the case of the President of the United States, the judges of the Supreme and inferior courts of the
United States, [and others] . . . the compensation received as such." The Supreme Court of the United States,
speaking through Mr. Justice Van Devanter, sustained the suit with the dissent of Justice Holmes and Brandeis. The
doctrine of Evans vs. Gore holding in effect that an income tax on a judges salary is a diminution thereof prohibited
by the Constitution, was reaffirmed in 1925 in Miles vs. Graham, 69 L. ed 1067.
In 1939, however, the case of OMalley vs. Woodrough (59 S. Ct. 838, 122 A. L. R. 1379) was brought up to the test
the validity of section 22 of the Revenue Act of June 6, 1932, which included in the "gross income," on the basis of
which taxes were to be paid, the compensation of "judges of courts of the United States taking office after June 6,
1932." And in that case the Supreme Court of the United States, with only one dissent (that of Justice Butler),
abandoned the doctrine of Evans vs. Gore and Miles vs. Graham by holding:
To subject them [the judges] to a general tax is merely to recognize that judges are also citizens, and that
their particular function in government does not generate an immunity from sharing with their fellow citizens
the material burden of the government whose Constitution and laws they are charged with administering.
The decision also says:
To suggest that it [the law in question] makes inroads upon the independence of judges who took office after
Congress had thus charged them with the common duties of citizenship, by making them bear their aliquot
share of the cost of maintaining the Government, is to trivialize the great historic experience on which the
framers based the safeguard of Article 3, section 1.
Commenting on the above-quoted portions of the latest decision of the Supreme Court of the United States on the
subject, Prof. William Bennett, Munro, in his book, The Government of the United States, which is used as a text in
various universities, says: ". . .
All of which seems to be common sense, for surely the framers of the Constitution from ever cutting a
judges salary, did not intend to relieve all federal judges from the general obligations of citizenship. As for
the President, he has never raised the issue; every occupant of the White House since 1913 has paid his
income tax without protest. (Pages 371-372.)
We emphasize that the doctrine of Evans vs. Gore and Miles vs. Graham is no longer operative, and that all United
States judges, including those who took office before June 6, 1932, are subject to and pay income tax on their
salaries; for after the submission of OMalley vs. Woodrough for decision the Congress of the United States, by
section 3 of the Public Salary Act of 1939, amended section 22 (a) of the Revenue Act of June 6, 1932, so as to
make it applicable to "judges of courts of the United States who took office on or before June 6, 1932." And the
validity of that Act, in force for more than a decade, has not been challenged.
Our colleagues import and transplant here the dead limbs of Evans vs. Gore and Miles vs. Graham and attempt to
revive and nurture them with painstaking analyses and diagnoses that they had not suffered a fatal blow
fromOMalley vs. Woodrough. We refuse to join this heroic attempt because we believe it is futile.
They disregard the actual damage and minimize it by trying to discover the process by which it was inflicted and he
motivations that led to the infliction. They say that the chief axe-wielder, Justice Frankfurter, was a Harvard graduate
and professor and that the Harvard Law Journal had criticized Evans vs. Gore; that the dissenters in said case
(Holmes and Brandeis) were Harvard men like Frankfurter; and that they believe this to be the "inarticulate
consideration that may have influenced the grounds on which the case [OMalley vs. Woodrough] went off." This
argument is not valid, in our humble belief. It was not only the Harvard Law Journal that had criticized Evans vs.
Gore. Justice Frankfurter and his colleagues said that the decision in that case "met with wide and steadily growing
disfavor from legal scholarship and professional opinion," and they cited the following: Clark, Furthermore
Limitations Upon Federal Income Taxation, 30 Yale L. J. 75; Corwin, Constitutional Law in 1919-1920, 15 Am. Pol.
Sci. Rev. 635, 641-644; Fellman, Diminution of Judicial Salaries, 24 Iowa L. Rev. 89; Lowndes, Taxing Income of
Federal Judiciary, 19 Va. L. Rev. 153; Powell, Constitutional Law in 1919-1920, 19 Mich. L. Rev. 117, 118;
Powell,The Sixteenth Amendment and Income from State Securities, National Income Tax Magazine (July, 1923), 5,
6; 20 Columbia L. Rev. 794; 43 Harvard L. Rev. 318; 20 Ill. L. Rev. 376; 45 Law Quarterly Rev. 291; 7 Va. L. Rev.
69; 3 University of Chicago L. Rev. 141. Justice Frankfurter and his colleagues also said that "Evans vs. Gore itself
was rejected by most of the courts before whom the matter came after that decision." Is not the intention to throw
Evans vs. Gore into the graveyard of abandoned cases manifest from all this and from the holding that judges are
also citizens, liable to income tax on their salaries?
The majority say that "unless and until our legislature approves an amendment to the income tax law expressly
taxing the salaries of judges thereafter appointed, the OMalley case is not relevant." We have shown that our
income tax law taxes the salaries of judges as clearly as if they are specifically mentioned therein, and that said law
took effect long before the adoption of the Constitution and long before the plaintiff was appointed.
We agree that the purpose of the constitutional provision against diminution of the salaries of judges during their
continuance in office is to safeguard the independence of the Judicial Department. But we disagree that to subject
the salaries of judges to a general income tax law applicable to all income earners would in any way affect their
independence. Our own experience since the income tax law went effect in 1920 is the best refutation of such
assumption.
The majority give an example by which the independence of judges may be imperiled thru the imposition of a tax on
their salaries. They say: Suppose there is power to tax the salaries of judges and the judiciary incurs the displeasure
of the Legislature and the Executive. In retaliation the income tax law is amended so as to levy a 30 per cent tax on
all salaries of government officials on the level of judges, and by means of another law the salaries of the executive
and the legislative branches are increased to compensate for the 30 per cent reduction of their salaries. To this we
reply that if such a vindictive measure is ever resorted to (which we cannot imagine), we shall be the first ones to
vote to strike it down as a palpable violation of the Constitution. There is no parity between such hypothetical law
and the general income tax law invoked by the defendant in this case. We believe that an income tax law applicable
only against the salaries of judges and not against those or all other income earners may be successfully assailed
as being in contravention not only of the provision against diminution of the salaries of judges but also of the
uniformity of the rule of taxation as well as of the equal protection clause of the Constitution. So the danger
apprehended by the majority is not real but surely imaginary.
We vote for the reversal of the judgment appealed from the dismissal of plaintiffs complaint.
Paras J., concurs.
Footnotes
*
Evans vs. Gore, 253 U. S. 245 and Gordy v. Dennis, 5 Atl. (2d) 69, hold identical view.
1
Evans vs. Gore, 253 U. S. 254, 64 L. ed. 887.
2
157 U. S. 701, Evans vs. Gore, supra.
3
See Evans vs. Gore, supra.
*
Evans vs. Gore, supra.
(Note A) The defendant also relies on the dissenting opinion of Mr. Justice Holmes in Evans vs.
Gore,supra, forgetting that subsequently Justice Holmes did not dissent in Miles vs. Graham, and
apparently accepted Evans vs. Gore as authority in writing his opinion in Gillespie vs. Oklahoma,
257 U. S. 501, 66 Law ed. 338. This remark applies to Taylor vs. Gehner (1931), No. 45 S. W. (2d)
59, which merely echoes Holmes dissent.
State vs. Nygaard, 159, Wisc. 396 and the decision of English courts invoked by appellant, are
refuted or distinguished in Gordy vs. Dennis, 5 Alt. (2d) 68, known to him since he invokes the
minority opinion therein.
4
Frankfurter, The Administrative Side of Chief Justice Hughes, Harvard Law Review, November, 1949.
5
It was a coincidence that the dissenters (Holmes and Brandeis) were Harvard men like Frankfurter. It is not
unlikely that the Harvard professor and admirer of Justice Holmes (whose biography he wrote in 1938) noted
and unconsciously absorbed the dissent.
6
Baker vs. C.I.R. 149 Fed. (2d) 342.
7
It requires a very clear case to justify changing the construction of a constitutional provision which has
been acquiesced in for so long a period as fifty years. (States vs. Frear, 138 Wisc. 536, 120 N. W. 216. See
also Hill vs. Tohill, 225 Ill. 384, 80 NE, 253.
8
On persuasive weight of contemporary construction of constitutional provision, see generally Cooley,
Constitutional Limitation 98th Ed.) Vol. I pp. 144 et seq.
a
The Constitution also provides that the President shall "receive a compensation to be ascertained by law
which shall be neither increased nor diminished during the period for which he shall have been elected"
(section 9, Article VII); that the Auditor General "shall receive an annual compensation to be fixed by law
which shall not be diminished during his continuance in office" (section 1, Article XI); and that the salaries of
the chairman and the members of the Commission on Elections "shall be neither increased nor diminished
during their term of office" (section 1, Article X).
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 78780 July 23, 1987
DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO, JR., petitioners,
vs.
COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL OFFICER, SUPREME COURT OF THE
PHILIPPINES, respondents.
R E S O L U T I O N
MELENCIO-HERRERA, J .:
Petitioners, the duly appointed and qualified Judges presiding over Branches 52, 19 and 53, respectively, of the
Regional Trial Court, National Capital Judicial Region, all with stations in Manila, seek to prohibit and/or perpetually
enjoin respondents, the Commissioner of Internal Revenue and the Financial Officer of the Supreme Court, from
making any deduction of withholding taxes from their salaries.
In a nutshell, they submit that "any tax withheld from their emoluments or compensation as judicial officers
constitutes a decrease or diminution of their salaries, contrary to the provision of Section 10, Article VIII of the 1987
Constitution mandating that "(d)uring their continuance in office, their salary shall not be decreased," even as it is
anathema to the Ideal of an independent judiciary envisioned in and by said Constitution."
It may be pointed out that, early on, the Court had dealt with the matter administratively in response to
representations that the Court direct its Finance Officer to discontinue the withholding of taxes from salaries of
members of the Bench. Thus, on June 4, 1987, the Court en banc had reaffirmed the Chief Justices directive as
follows:
RE: Question of exemption from income taxation. The Court REAFFIRMED the Chief Justices previous
and standing directive to the Fiscal Management and Budget Office of this Court to continue with the
deduction of the withholding taxes from the salaries of the Justices of the Supreme Court as well as from the
salaries of all other members of the judiciary.
That should have resolved the question. However, with the filing of this petition, the Court has deemed it best to
settle the legal issue raised through this judicial pronouncement. As will be shown hereinafter, the clear intent of the
Constitutional Commission was to delete the proposed express grant of exemption from payment of income tax to
members of the Judiciary, so as to "give substance to equality among the three branches of Government" in the
words of Commissioner Rigos. In the course of the deliberations, it was further expressly made clear, specially with
regard to Commissioner Joaquin F. Bernas accepted amendment to the amendment of Commissioner Rigos, that
the salaries of members of the Judiciary would be subject to the general income tax applied to all taxpayers.
This intent was somehow and inadvertently not clearly set forth in the final text of the Constitution as approved and
ratified in February, 1987 (infra, pp. 7-8). Although the intent may have been obscured by the failure to include in the
General Provisions a proscription against exemption of any public officer or employee, including constitutional
officers, from payment of income tax, the Court since then has authorized the continuation of the deduction of the
withholding tax from the salaries of the members of the Supreme Court, as well as from the salaries of all other
members of the Judiciary. The Court hereby makes of record that it had then discarded the ruling in Perfecto vs.
Meer and Endencia vs. David, infra, that declared the salaries of members of the Judiciary exempt from payment of
the income tax and considered such payment as a diminution of their salaries during their continuance in office. The
Court hereby reiterates that the salaries of Justices and Judges are properly subject to a general income tax law
applicable to all income earners and that the payment of such income tax by Justices and Judges does not fall
within the constitutional protection against decrease of their salaries during their continuance in office.
A comparison of the Constitutional provisions involved is called for. The 1935 Constitution provided:
... (The members of the Supreme Court and all judges of inferior courts) shall receive such compensation as
may be fixed by law, which shall not be diminished during their continuance in office ...
1
(Emphasis
supplied).
Under the 1973 Constitution, the same provision read:
The salary of the Chief Justice and of the Associate Justices of the Supreme court, and of judges of inferior
courts shall be fixed by law, which shall not be decreased during their continuance in office. ...
2
(Emphasis
ours).
And in respect of income tax exemption, another provision in the same 1973 Constitution specifically stipulated:
No salary or any form of emolument of any public officer or employee, including constitutional officers, shall
be exempt from payment of income tax.
3
The provision in the 1987 Constitution, which petitioners rely on, reads:
The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower
courts shall be fixed by law. During their continuance in office, their salary shall not
be decreased.
4
(Emphasis supplied).
The 1987 Constitution does not contain a provision similar to Section 6, Article XV of the 1973 Constitution, for
which reason, petitioners claim that the intent of the framers is to revert to the original concept of "non-diminution "of
salaries of judicial officers.
The deliberations of the 1986 Constitutional Commission relevant to Section 10, Article VIII, negate such contention.
The draft proposal of Section 10, Article VIII, of the 1987 Constitution read:
Section 13. The salary of the Chief Justice and the Associate Justices of the Supreme Court and of judges
of the lower courts shall be fixed by law. During their continuance in office, their salary shall not be
diminished nor subjected to income tax. Until the National Assembly shall provide otherwise, the Chief
Justice shall receive an annual salary of _____________ and each Associate Justice ______________
pesos.
5
(Emphasis ours)
During the debates on the draft Article (Committee Report No. 18), two Commissioners presented their objections to
the provision on tax exemption, thus:
MS. AQUINO. Finally, on the matter of exemption from tax of the salary of justices, does this not violate the
principle of the uniformity of taxation and the principle of equal protection of the law? After all, tax is levied
not on the salary but on the combined income, such that when the judge receives a salary and it is
comingled with the other income, we tax the income, not the salary. Why do we have to give special
privileges to the salary of justices?
MR. CONCEPCION. It is the independence of the judiciary. We prohibit the increase or decrease of their
salary during their term. This is an indirect way of decreasing their salary and affecting the independence of
the judges.
MS. AQUINO. I appreciate that to be in the nature of a clause to respect tenure, but the special privilege on
taxation might, in effect, be a violation of the principle of uniformity in taxation and the equal protection
clause.
6
x x x x x x x x x
MR. OPLE. x x x
Of course, we share deeply the concern expressed by the sponsor, Commissioner Roberto Concepcion, for
whom we have the highest respect, to surround the Supreme Court and the judicial system as a whole with
the whole armor of defense against the executive and legislative invasion of their independence. But in so
doing, some of the citizens outside, especially the humble government employees, might say that in trying to
erect a bastion of justice, we might end up with the fortress of privileges, an island of extra territoriality under
the Republic of the Philippines, because a good number of powers and rights accorded to the Judiciary here
may not be enjoyed in the remotest degree by other employees of the government.
An example is the exception from income tax, which is a kind of economic immunity, which is, of course,
denied to the entire executive department and the legislative.
7
And during the period of amendments on the draft Article, on July 14, 1986, Commissioner Cirilo A. Rigos proposed
that the term "diminished" be changed to "decreased" and that the words "nor subjected to income tax" be deleted
so as to "give substance to equality among the three branches in the government.
Commissioner Florenz D. Regalado, on behalf of the Committee on the Judiciary, defended the original draft and
referred to the ruling of this Court in Perfecto vs. Meer
8
that "the independence of the judges is of far greater
importance than any revenue that could come from taxing their salaries." Commissioner Rigos then moved that the
matter be put to a vote. Commissioner Joaquin G. Bernas stood up "in support of an amendment to the amendment
with the request for a modification of the amendment," as follows:
FR. BERNAS. Yes. I am going to propose an amendment to the amendment saying that it is not enough to
drop the phrase "shall not be subjected to income tax," because if that is all that the Gentleman will do, then
he will just fall back on the decision in Perfecto vs. Meer and in Dencia vs. David [should be Endencia and
Jugo vs. David, etc., 93 Phil. 696[ which excludes them from income tax, but rather I would propose that the
statement will read: "During their continuance in office, their salary shall not be diminished BUT MAY BE
SUBJECT TO GENERAL INCOME TAX."IN support of this position, I would say that the argument seems to
be that the justice and judges should not be subjected to income tax because they already gave up the
income from their practice. That is true also of Cabinet members and all other employees. And I know right
now, for instance, there are many people who have accepted employment in the government involving a
reduction of income and yet are still subject to income tax. So, they are not the only citizens whose income
is reduced by accepting service in government.
Commissioner Rigos accepted the proposed amendment to the amendment. Commissioner Rustico F. de los
Reyes, Jr. then moved for a suspension of the session. Upon resumption, Commissioner Bernas announced:
During the suspension, we came to an understanding with the original proponent, Commissioner Rigos, that
his amendment on page 6,. line 4 would read: "During their continuance in office, their salary shall not be
DECREASED."But this is on the understanding that there will be a provision in the Constitution similar to
Section 6 of Article XV, the General Provisions of the 1973 Constitution, which says:
No salary or any form of emolument of any public officer or employee, including constitutional
officers, shall be exempt from payment of income tax.
So, we put a period (.) after "DECREASED" on the understanding that the salary of justices is subject to tax.
When queried about the specific Article in the General Provisions on non-exemption from tax of salaries of public
officers, Commissioner Bernas replied:
FR BERNAS. Yes, I do not know if such an article will be found in the General Provisions. But at any rate,
when we put a period (.) after "DECREASED," it is on the understanding that the doctrine in Perfecto vs.
Meer and Dencia vs. David will not apply anymore.
The amendment to the original draft, as discussed and understood, was finally approved without objection.
THE PRESIDING OFFICER (Mr. Bengzon). The understanding, therefore, is that there will be a provision
under the Article on General Provisions. Could Commissioner Rosario Braid kindly take note that the
salaries of officials of the government including constitutional officers shall not be exempt from income tax?
The amendment proposed herein and accepted by the Committee now reads as follows: "During their
continuance in office, their salary shall not be DECREASED"; and the phrase "nor subjected to income tax"
is deleted.
9
The debates, interpellations and opinions expressed regarding the constitutional provision in question until it was
finally approved by the Commission disclosed that the true intent of the framers of the 1987 Constitution, in adopting
it, was to make the salaries of members of the Judiciary taxable. The ascertainment of that intent is but in keeping
with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of
the people adopting it should be given effect.
10
The primary task in constitutional construction is to ascertain and
thereafter assure the realization of the purpose of the framers and of the people in the adoption of the
Constitution.
11
it may also be safely assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.
12
1avvphi1
Besides, construing Section 10, Articles VIII, of the 1987 Constitution, which, for clarity, is again reproduced
hereunder:
The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower
courts shall be fixed by law. During their continuance in office, their salary shall not be decreased.
(Emphasis supplied).
it is plain that the Constitution authorizes Congress to pass a law fixing another rate of compensation of Justices
and Judges but such rate must be higher than that which they are receiving at the time of enactment, or if lower, it
would be applicable only to those appointed after its approval. It would be a strained construction to read into the
provision an exemption from taxation in the light of the discussion in the Constitutional Commission.
With the foregoing interpretation, and as stated heretofore, the ruling that "the imposition of income tax upon the
salary of judges is a dimunition thereof, and so violates the Constitution" in Perfecto vs. Meer,
13
as affirmed
inEndencia vs. David
14
must be declared discarded. The framers of the fundamental law, as the alter ego of the
people, have expressed in clear and unmistakable terms the meaning and import of Section 10, Article VIII, of the
1987 Constitution that they have adopted
Stated otherwise, we accord due respect to the intent of the people, through the discussions and deliberations of
their representatives, in the spirit that all citizens should bear their aliquot part of the cost of maintaining the
government and should share the burden of general income taxation equitably.
WHEREFORE, the instant petition for Prohibition is hereby dismissed.
Teehankee, C.J., Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and
Cortes, JJ., concur.
Yap, J., is on leave.
Footnotes
1
Section 9,Articie VIII.
2
Section 10, Article X.
3
Section 6, Article XV, General Provisions.
4
Section 10, Article VIII.
5
Record of the Constitutional Commission, Vol. I, p. 433.
6
Record of the Constitutional Commission, p. 460.
7
Ibid., at page 467,
8
85 Phil. 552 (1950).
9
Record of the Constitutional Commission, Vol. 1, p. 506.
10
Gold Creek Mining Co. vs. Rodriguez, 66 Phil. 259 (1938).
11
J.M. Tuason & Co., Inc. vs. Land Tenure Administration, No. L-21064, February 18, 1970, 31 SCRA 413.
12
Tanada, Fernando, Constitution of the Philippines, Fourth Ed., Vol. 1, p. 21.
13
85 Phil. 552 (1950).
14
93 Phil. 696 (1953).
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6355-56 August 31, 1953
PASTOR M. ENDENCIA and FERNANDO JUGO, plaintiffs-appellees,
vs.
SATURNINO DAVID, as Collector of Internal Revenue, defendant-appellant.
Office of the Solicitor General Juan R. Liwag and Solicitor Jose P. Alejandro for appellant.
Manuel O. Chan for appellees.
MONTEMAYOR, J .:
This is a joint appeal from the decision of the Court of First Instance of Manila declaring section 13 of Republic Act
No. 590 unconstitutional, and ordering the appellant Saturnino David as Collector of Internal Revenue to re-fund to
Justice Pastor M. Endencia the sum of P1,744.45, representing the income tax collected on his salary as Associate
Justice of the Court of Appeals in 1951, and to Justice Fernando Jugo the amount of P2,345.46, representing the
income tax collected on his salary from January 1,1950 to October 19, 1950, as Presiding Justice of the Court of
Appeals, and from October 20, 1950 to December 31,1950, as Associate Justice of the Supreme Court, without
special pronouncement as to costs.
Because of the similarity of the two cases, involving as they do the same question of law, they were jointly submitted
for determination in the lower court. Judge Higinio B. Macadaeg presiding, in a rather exhaustive and well
considered decision found and held that under the doctrine laid down by this Court in the case of Perfecto vs. Meer,
85 Phil., 552, the collection of income taxes from the salaries of Justice Jugo and Justice Endencia was a diminution
of their compensation and therefore was in violation of the Constitution of the Philippines, and so ordered the refund
of said taxes.
We see no profit and necessity in again discussing and considering the proposition and the arguments pro and cons
involved in the case of Perfecto vs. Meer, supra, which are raised, brought up and presented here. In that case, we
have held despite the ruling enunciated by the United States Federal Supreme Court in the case of O Malley vs.
Woodrought 307 U. S., 277, that taxing the salary of a judicial officer in the Philippines is a diminution of such salary
and so violates the Constitution. We shall now confine our-selves to a discussion and determination of the remaining
question of whether or not Republic Act No. 590, particularly section 13, can justify and legalize the collection of
income tax on the salary of judicial officers.
According to the brief of the Solicitor General on behalf of appellant Collector of Internal Revenue, our decision in
the case of Perfecto vs. Meer, supra, was not received favorably by Congress, because immediately after its
promulgation, Congress enacted Republic Act No. 590. To bring home his point, the Solicitor General reproduced
what he considers the pertinent discussion in the Lower House of House Bill No. 1127 which became Republic Act
No. 590.
For purposes of reference, we are reproducing section 9, Article VIII of our Constitution:.
SEC. 9. The members of the Supreme Court and all judges of inferior courts shall hold office during good
behavior, until they reach the age of seventy years, or become incapacitated to discharge the duties of their
office. They shall receive such compensation as may be fixed by law, which shall not be diminished during
their continuance in office. Until the Congress shall provide otherwise, the Chief Justice of the Supreme
Court shall receive an annual compensation of sixteen thousand pesos, and each Associate Justice, fifteen
thousand pesos.
As already stated construing and applying the above constitutional provision, we held in the Perfecto case that
judicial officers are exempt from the payment of income tax on their salaries, because the collection thereof by the
Government was a decrease or diminution of their salaries during their continuance in office, a thing which is
expressly prohibited by the Constitution. Thereafter, according to the Solicitor General, because Congress did not
favorably receive the decision in the Perfecto case, Congress promulgated Republic Act No. 590, if not to counteract
the ruling in that decision, at least now to authorize and legalize the collection of income tax on the salaries of
judicial officers. We quote section 13 of Republic Act No. 590:
SEC 13. No salary wherever received by any public officer of the Republic of the Philippines shall be
considered as exempt from the income tax, payment of which is hereby declared not to be dimunition of his
compensation fixed by the Constitution or by law.
So we have this situation. The Supreme Court in a decision interpreting the Constitution, particularly section 9,
Article VIII, has held that judicial officers are exempt from payment of income tax on their salaries, because the
collection thereof was a diminution of such salaries, specifically prohibited by the Constitution. Now comes the
Legislature and in section 13, Republic Act No. 590, says that "no salary wherever received by any public officer of
the Republic (naturally including a judicial officer) shall be considered as exempt from the income tax," and
proceeds to declare that payment of said income tax is not a diminution of his compensation. Can the Legislature
validly do this? May the Legislature lawfully declare the collection of income tax on the salary of a public official,
specially a judicial officer, not a decrease of his salary, after the Supreme Court has found and decided otherwise?
To determine this question, we shall have to go back to the fundamental principles regarding separation of powers.
Under our system of constitutional government, the Legislative department is assigned the power to make and enact
laws. The Executive department is charged with the execution of carrying out of the provisions of said laws. But the
interpretation and application of said laws belong exclusively to the Judicial department. And this authority to
interpret and apply the laws extends to the Constitution. Before the courts can determine whether a law is
constitutional or not, it will have to interpret and ascertain the meaning not only of said law, but also of the pertinent
portion of the Constitution in order to decide whether there is a conflict between the two, because if there is, then the
law will have to give way and has to be declared invalid and unconstitutional.
Defining and interpreting the law is a judicial function and the legislative branch may not limit or restrict the
power granted to the courts by the Constitution. (Bandy vs. Mickelson et al., 44N. W., 2nd 341, 342.)
When it is clear that a statute transgresses the authority vested in the legislature by the Constitution, it is the
duty of the courts to declare the act unconstitutional because they cannot shrink from it without violating their
oaths of office. This duty of the courts to maintain the Constitution as the fundamental law of the state is
imperative and unceasing; and, as Chief Justice Marshall said, whenever a statute is in violation of the
fundamental law, the courts must so adjudge and thereby give effect to the Constitution. Any other course
would lead to the destruction of the Constitution. Since the question as to the constitutionality of a statute is
a judicial matter, the courts will not decline the exercise of jurisdiction upon the suggestion that action might
be taken by political agencies in disregard of the judgment of the judicial tribunals. (11 Am. Jur., 714-715.)
Under the American system of constitutional government, among the most important functions in trusted to
the judiciary are the interpreting of Constitutions and, as a closely connected power, the determination of
whether laws and acts of the legislature are or are not contrary to the provisions of the Federal and State
Constitutions. (11 Am. Jur., 905.).
By legislative fiat as enunciated in section 13, Republic Act NO. 590, Congress says that taxing the salary of a
judicial officer is not a decrease of compensation. This is a clear example of interpretation or ascertainment of the
meaning of the phrase "which shall not be diminished during their continuance in office," found in section 9, Article
VIII of the Constitution, referring to the salaries of judicial officers. This act of interpreting the Constitution or any part
thereof by the Legislature is an invasion of the well-defined and established province and jurisdiction of the
Judiciary.
The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of
what the law was before its passage, so as to give it any binding weight with the courts. A legislative
definition of a word as used in a statute is not conclusive of its meaning as used elsewhere; otherwise, the
legislature would be usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis supplied)
The legislature cannot, upon passing a law which violates a constitutional provision, validate it so as to
prevent an attack thereon in the courts, by a declaration that it shall be so construed as not to violate the
constitutional inhibition. (11 Am. Jur., 919, emphasis supplied)
We have already said that the Legislature under our form of government is assigned the task and the power to make
and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the
Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law
means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertain
its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial
processes and court decisions. Under such a system, a final court determination of a case based on a judicial
interpretation of the law of the Constitution may be undermined or even annulled by a subsequent and different
interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor
desirable, besides being clearly violative of the fundamental, principles of our constitutional system of government,
particularly those governing the separation of powers.
So much for the constitutional aspect of the case. Considering the practical side thereof, we believe that the
collection of income tax on a salary is an actual and evident diminution thereof. Under the old system where the in-
come tax was paid at the end of the year or sometime thereafter, the decrease may not be so apparent and clear.
All that the official who had previously received his full salary was called upon to do, was to fulfill his obligation and
to exercise his privilege of paying his income tax on his salary. His salary fixed by law was received by him in the
amount of said tax comes from his other sources of income, he may not fully realize the fact that his salary had been
decreased in the amount of said income tax. But under the present system of withholding the income tax at the
source, where the full amount of the income tax corresponding to his salary is computed in advance and divided into
equal portions corresponding to the number of pay-days during the year and actually deducted from his salary
corresponding to each payday, said official actually does not receive his salary in full, because the income tax is
deducted therefrom every payday, that is to say, twice a month. Let us take the case of Justice Endencia. As
Associate Justice of the Court of Appeals, his salary is fixed at p12,000 a year, that is to say, he should receive
P1,000 a month or P500 every payday, fifteenth and end of month. In the present case, the amount collected by
the Collector of Internal Revenue on said salary is P1,744.45 for one year. Divided by twelve (months) we shall have
P145.37 a month. And further dividing it by two paydays will bring it down to P72.685, which is the income tax
deducted form the collected on his salary each half month. So, if Justice Endencias salary as a judicial officer were
not exempt from payment of the income tax, instead of receiving P500 every payday, he would be actually receiving
P427.31 only, and instead of receiving P12,000 a year, he would be receiving but P10,255.55. Is it not therefor clear
that every payday, his salary is actually decreased by P72.685 and every year is decreased by P1,744.45?
Reading the discussion in the lower House in connection with House Bill No. 1127, which became Republic Act No.
590, it would seem that one of the main reasons behind the enactment of the law was the feeling among certain
legislators that members of the Supreme Court should not enjoy any exemption and that as citizens, out of
patriotism and love for their country, they should pay income tax on their salaries. It might be stated in this
connection that the exemption is not enjoyed by the members of the Supreme Court alone but also by all judicial
officers including Justices of the Court of Appeals and judges of inferior courts. The exemption also extends to other
constitutional officers, like the President of the Republic, the Auditor General, the members of the Commission on
Elections, and possibly members of the Board of Tax Appeals, commissioners of the Public Service Commission,
and judges of the Court of Industrial Relations. Compares to the number of all these officials, that of the Supreme
Court Justices is relatively insignificant. There are more than 990 other judicial officers enjoying the exemption,
including 15 Justices of the Court of Appeals, about 107 Judges of First Instance, 38 Municipal Judges and about
830 Justices of the Peace. The reason behind the exemption in the Constitution, as interpreted by the United States
Federal Supreme Court and this Court, is to preserve the independence of the Judiciary, not only of this High
Tribunal but of the other courts, whose present membership number more than 990 judicial officials.
The exemption was not primarily intended to benefit judicial officers, but was grounded on public policy. As said by
Justice Van Devanter of the United States Supreme Court in the case of Evans vs. Gore (253 U. S., 245):
The primary purpose of the prohibition against diminution was not to benefit the judges, but, like the clause
in respect of tenure, to attract good and competent men to the bench and to promote that independence of
action and judgment which is essential to the maintenance of the guaranties, limitations and pervading
principles of the Constitution and to the administration of justice without respect to person and with equal
concern for the poor and the rich. Such being its purpose, it is to be construed, not as a private grant, but as
a limitation imposed in the public interest; in other words, not restrictively, but in accord with its spirit and the
principle on which it proceeds.
Having in mind the limited number of judicial officers in the Philippines enjoying this exemption, especially when the
great bulk thereof are justices of the peace, many of them receiving as low as P200 a month, and considering
further the other exemptions allowed by the income tax law, such as P3,000 for a married person and P600 for each
dependent, the amount of national revenue to be derived from income tax on the salaries of judicial officers, were if
not for the constitutional exemption, could not be large or substantial. But even if it were otherwise, it should not
affect, much less outweigh the purpose and the considerations that prompted the establishment of the constitutional
exemption. In the same case of Evans vs. Gore, supra, the Federal Supreme Court declared "that they (fathers of
the Constitution) regarded the independence of the judges as far as greater importance than any revenue that could
come from taxing their salaries.
When a judicial officer assumed office, he does not exactly ask for exemption from payment of income tax on his
salary, as a privilege . It is already attached to his office, provided and secured by the fundamental law, not primarily
for his benefit, but based on public interest, to secure and preserve his independence of judicial thought and action.
When we come to the members of the Supreme Court, this excemption to them is relatively of short duration.
Because of the limited membership in this High Tribunal, eleven, and due to the high standards of experience,
practice and training required, one generally enters its portals and comes to join its membership quite late in life, on
the aver-age, around his sixtieth year, and being required to retire at seventy, assuming that he does not die or
become incapacitated earlier, naturally he is not in a position to receive the benefit of exemption for long. It is rather
to the justices of the peace that the exemption can give more benefit. They are relatively more numerous, and
because of the meager salary they receive, they can less afford to pay the income tax on it and its diminution by the
amount of the income tax if paid would be real, substantial and onerous.
Considering exemption in the abstract, there is nothing unusual or abhorrent in it, as long as it is based on public
policy or public interest. While all other citizens are subject to arrest when charged with the commission of a crime,
members of the Senate and House of Representatives except in cases of treason, felony and breach of the peace
are exempt from arrest, during their attendance in the session of the Legislature; and while all other citizens are
generally liable for any speech, remark or statement, oral or written, tending to cause the dishonor, discredit or
contempt of a natural or juridical person or to blacken the memory of one who is dead, Senators and Congressmen
in making such statements during their sessions are extended immunity and exemption.
And as to tax exemption, there are not a few citizens who enjoy this exemption. Persons, natural and juridical, are
exempt from taxes on their lands, buildings and improvements thereon when used exclusively for educational
purposes, even if they derive income therefrom. (Art. VI, Sec. 22 [3].) Holders of government bonds are exempted
from the payment of taxes on the income or interest they receive therefrom (sec. 29 (b) [4], National Internal
Revenue Code as amended by Republic Act No. 566). Payments or income received by any person residing in the
Philippines under the laws of the United States administered by the United States Veterans Administration are
exempt from taxation. (Republic Act No. 360). Funds received by officers and enlisted men of the Philippine Army
who served in the Armed Forces of the United States, allowances earned by virtue of such services corresponding
to the taxable years 1942 to 1945, inclusive, are exempted from income tax. (Republic Act No. 210). The payment of
wages and allowances of officers and enlisted men of the Army Forces of the Philippines sent to Korea are also
exempted from taxation. (Republic Act No. 35). In other words, for reasons of public policy and public interest, a
citizen may justifiably by constitutional provision or statute be exempted from his ordinary obligation of paying taxes
on his income. Under the same public policy and perhaps for the same it not higher considerations, the framers of
the Constitution deemed it wise and necessary to exempt judicial officers from paying taxes on their salaries so as
not to decrease their compensation, thereby insuring the independence of the Judiciary.
In conclusion we reiterate the doctrine laid down in the case of Perfecto vs. Meer, supra, to the effect that the
collection of income tax on the salary of a judicial officer is a diminution thereof and so violates the Constitution. We
further hold that the interpretation and application of the Constitution and of statutes is within the exclusive province
and jurisdiction of the Judicial department, and that in enacting a law, the Legislature may not legally provide therein
that it be interpreted in such a way that it may not violate a Constitutional prohibition, thereby tying the hands of the
courts in their task of later interpreting said statute, specially when the interpretation sought and provided in said
statute runs counter to a previous interpretation already given in a case by the highest court of the land.
In the views of the foregoing considerations, the decision appealed from is hereby affirmed, with no pronouncement
as to costs.
Pablo, Bengzon, Padilla, Tuason, Reyes, and Labrador, JJ., concur.
Separate Opinions
BAUTISTA ANGELO, J ., concurring:
Without expressing any opinion on the doctrine laid down by this Court in the case of Perfecto vs. Meer, G. R. No. L-
2314, in view of the part I had in that case as former Solicitor General, I wish however to state that I concur in the
opinion of the majority to the effect that section 13, Republic Act No. 590, in so far as it provides that taxing of the
salary of a judicial officer shall be considered "not to be a diminution of his compensation fixed by the Constitution or
by law", constitutes an invasion of the province and jurisdiction of the judiciary. In this sense, I am of the opinion that
said section is null and void, it being a transgression of the fundamental principle underlying the separation of
powers.
PARAS, C.J ., concurring and dissenting:
I dissent for the same reasons stated in the dissenting opinion of Mr. Justice Ozaeta in Perfecto vs. Meer, 85 Phil.,
552, in which I concurred. But I disagree with the majority in ruling that no legislation may provide that it be held
valid although against a provision of the Constitution.
MANILA PRINCE HOTEL V. GSIS
D E C I S I O N
BELLOSILLO, J .:
The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos,
[1]
is
invoked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which owns the
historic Manila Hotel. Opposing, respondents maintain that the provision is not self-executing but requires an
implementing legislation for its enforcement. Corollarily, they ask whether the 51% shares form part of the national
economy and patrimony covered by the protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the
privatization program of the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to
sell through public bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The winning
bidder, or the eventual strategic partner, is to provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila
Hotel.
[2]
In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince
Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same
number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state -
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -
1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to November 3,
1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block
of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan
for the Manila Hotel x x x x
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to November 3,
1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC (Office of the
Government Corporate Counsel) are obtained.
[3]
Pending the declaration of Renong Berhard as the winning bidder/strategic partner and the execution of the
necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price
of P44.00 per share tendered by Renong Berhad.
[4]
In a subsequent letter dated 10 October 1995 petitioner sent a
managers check issued by Philtrust Bank for Thirty-three Million Pesos (P33,000,000.00) as Bid Security to match
the bid of the Malaysian Group, Messrs. Renong Berhad x x x x
[5]
which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the matching
bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong
Berhad, petitioner came to this Court on prohibition and mandamus. On 18 October 1995 the Court issued a
temporary restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the
First Division. The case was then set for oral arguments with former Chief Justice Enrique M. Fernando and Fr.
Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that the
Manila Hotel has been identified with the Filipino nation and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier generation of Filipinos who
believed in the nobility and sacredness of independence and its power and capacity to release the full potential of
the Filipino people. To all intents and purposes, it has become a part of the national patrimony.
[6]
Petitioner also
argues that since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is
owned by respondent GSIS, a government-owned and controlled corporation, the hotel business of respondent
GSIS being a part of the tourism industry is unquestionably a part of the national economy. Thus, any transaction
involving 51% of the shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10,
second par., Art. XII, 1987 Constitution, applies.
[7]
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also
unquestionably part of the national economy petitioner should be preferred after it has matched the bid offer of the
Malaysian firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot be awarded the
Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price per share.
[8]
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is
merely a statement of principle and policy since it is not a self-executing provision and requires implementing
legislation(s) x x x x Thus, for the said provision to operate, there must be existing laws to lay down conditions
under which business may be done.
[9]
Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national
patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in its
territorial sea, and exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987
Constitution. According to respondents, while petitioner speaks of the guests who have slept in the hotel and the
events that have transpired therein which make the hotel historic, these alone do not make the hotel fall under
the patrimony of the nation. What is more, the mandate of the Constitution is addressed to the State, not to
respondent GSIS which possesses a personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision invoked is
still inapplicable since what is being sold is only 51% of the outstanding shares of the corporation, not the hotel
building nor the land upon which the building stands. Certainly, 51% of the equity of the MHC cannot be considered
part of the national patrimony. Moreover, if the disposition of the shares of the MHC is really contrary to the
Constitution, petitioner should have questioned it right from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if for any
reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in
terms of price per share, is misplaced. Respondents postulate that the privilege of submitting a matching bid has not
yet arisen since it only takes place if for any reason, the Highest Bidder cannot be awarded the Block of
Shares. Thus the submission by petitioner of a matching bid is premature since Renong Berhad could still very well
be awarded the block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid
had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did
not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its discretion it was not so
patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by
law. Similarly, the petition for mandamus should fail as petitioner has no clear legal right to what it demands and
respondents do not have an imperative duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and administration of a
nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has
been defined as the fundamental and paramount law of the nation.
[10]
It prescribes the permanent framework of a
system of government, assigns to the different departments their respective powers and duties, and establishes
certain fixed principles on which government is founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance with which all private rights must be
determined and all public authority administered.
[11]
Under the doctrine of constitutional supremacy, if a law or
contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the
executive branch or entered into by private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command
the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of
government providing for the different departments of the governmental machinery and securing certain
fundamental and inalienable rights of citizens.
[12]
A provision which lays down a general principle, such as those
found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and
becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by
means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is
self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution
itself, so that they can be determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action.
[13]
As against constitutions of the past, modern constitutions have been generally drafted upon a different principle
and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner
similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like
that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the constitution are self-executing. If the
constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law.
[14]
This can be cataclysmic. That is why
the prevailing view is, as it has always been, that -
x x x x in case of doubt, the Constitution should be considered self-executing rather than non-self-executing x x x x
Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by
simply refusing to pass the needed implementing statute.
[15]
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-executing, as
they quote from discussions on the floor of the 1986 Constitutional Commission -
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee on
Style. If the wording of PREFERENCE is given to QUALIFIED FILIPINOS, can it be understood as
a preference to qualified Filipinos vis-a-vis Filipinos who are not qualified. So, why do we not make it
clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word
QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against whom? As against
aliens or over aliens ?
MR. NOLLEDO. Madam President, I think that is understood. We use the word QUALIFIED because
the existing laws or prospective laws will always lay down conditions under which business may be
done. For example, qualifications on capital, qualifications on the setting up of other financial
structures, et cetera (underscoring supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.
[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it is
non-self-executing but simply for purposes of style. But, certainly, the legislature is not precluded from enacting
further laws to enforce the constitutional provision so long as the contemplated statute squares with the
Constitution. Minor details may be left to the legislature without impairing the self-executing nature of constitutional
provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of
powers directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used
for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination
thereof, or place reasonable safeguards around the exercise of the right. The mere fact that legislation may
supplement and add to or prescribe a penalty for the violation of a self-executing constitutional provision does not
render such a provision ineffective in the absence of such legislation. The omission from a constitution of any
express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended
to be self-executing. The rule is that a self-executing provision of the constitution does not necessarily exhaust
legislative power on the subject, but any legislation must be in harmony with the constitution, further the exercise of
constitutional right and make it more available.
[17]
Subsequent legislation however does not necessarily mean that
the subject constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from
the tenor of the first and third paragraphs of the same section which undoubtedly are not self-executing.
[18]
The
argument is flawed. If the first and third paragraphs are not self-executing because Congress is still to enact
measures to encourage the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph,
and the State still needs legislation to regulate and exercise authority over foreign investments within its national
jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-
executing as it does not by its language require any legislation in order to give preference to qualified Filipinos in the
grant of rights, privileges and concessions covering the national economy and patrimony. A constitutional provision
may be self-executing in one part and non-self-executing in another.
[19]
Even the cases cited by respondents holding that certain constitutional provisions are merely statements of
principles and policies, which are basically not self-executing and only placed in the Constitution as moral incentives
to legislation, not as judicially enforceable rights - are simply not in point. Basco v. Philippine Amusements and
Gaming Corporation
[20]
speaks of constitutional provisions on personal dignity,
[21]
the sanctity of family life,
[22]
the
vital role of the youth in nation-building,
[23]
the promotion of social justice,
[24]
and the values of education.
[25]
Tolentino
v. Secretary of Finance
[26]
refers to constitutional provisions on social justice and human rights
[27]
and on
education.
[28]
Lastly, Kilosbayan, Inc. v. Morato
[29]
cites provisions on the promotion of general welfare,
[30]
the
sanctity of family life,
[31]
the vital role of the youth in nation-building
[32]
and the promotion of total human liberation
and development.
[33]
A reading of these provisions indeed clearly shows that they are not judicially enforceable
constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that they are
only principles upon which legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command
which is complete in itself and which needs no further guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not require any legislation to put it in operation. It is per
se judicially enforceable. When our Constitution mandates that[i]n the grant of rights, privileges, and concessions
covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that -
qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified
circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on
the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right
enforces itself by its own inherent potency and puissance, and from which all legislations must take their
bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission
[34]
explains -
The patrimony of the Nation that should be conserved and developed refers not only to our rich natural
resources but also to the cultural heritage of our race. It also refers to our intelligence in arts, sciences and
letters. Therefore, we should develop not only our lands, forests, mines and other natural resources but
also the mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage.
[35]
When the Constitution
speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could
have very well used the term natural resources, but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it was restrictively an
American hotel when it first opened in 1912, it immediately evolved to be truly Filipino. Formerly a concourse for the
elite, it has since then become the venue of various significant events which have shaped Philippine history. It was
called the Cultural Center of the 1930s. It was the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine Government it plays host to dignitaries and
official visitors who are accorded the traditional Philippine hospitality.
[36]
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a
City.
[37]
During World War II the hotel was converted by the Japanese Military Administration into a military
headquarters. When the American forces returned to recapture Manila the hotel was selected by the Japanese
together with Intramuros as the two (2) places for their final stand. Thereafter, in the 1950s and 1960s, the hotel
became the center of political activities, playing host to almost every political convention. In 1970 the hotel
reopened after a renovation and reaped numerous international recognitions, an acknowledgment of the Filipino
talent and ingenuity. In 1986 the hotel was the site of a failed coup d etat where an aspirant for vice-president was
proclaimed President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and
frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our
struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national
economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional
shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have
actual control and management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the
hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents claim that
the Filipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of
the corporation, not the Hotel building nor the land upon which the building stands.
[38]
The argument is pure sophistry. The term qualified Filipinos as used in our Constitution also includes
corporations at least 60% of which is owned by Filipinos. This is very clear from the proceedings of the 1986
Constitutional Commission -
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the amendment
would consist in substituting the words QUALIFIED FILIPINOS with the following: CITIZENS OF
THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR
CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS.
x x x x
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise a
question. Suppose it is a corporation that is 80-percent Filipino, do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a corporation
wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference should only be
100-percent Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may refer only to
individuals and not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President.
[39]
x x x x
MR. RODRIGO. Before we vote, may I request that the amendment be read again.
MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS. And the word Filipinos here, as intended by the
proponents, will include not only individual Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos.
[40]
The phrase preference to qualified Filipinos was explained thus -
MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his
amendment so that I can ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino enterprise
is also qualified, will the Filipino enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still
be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.
[41]
Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called Filipino First policy. That
means that Filipinos should be given preference in the grant of concessions, privileges and rights
covering the national patrimony.
[42]
The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was
still further clarified by Commissioner Nolledo
[43]
-
Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic concerns. It is better known as
the FILIPINO FIRST Policy x x x x This provision was never found in previous Constitutions x x x x
The term qualified Filipinos simply means that preference shall be given to those citizens who can make a viable
contribution to the common good, because of credible competence and efficiency. It certainly does NOT mandate
the pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient,
since such an indiscriminate preference would be counterproductive and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to be made between a qualified
foreigner and a qualified Filipino, the latter shall be chosen over the former.
Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS and selected
as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance with its own guidelines so
that the sole inference here is that petitioner has been found to be possessed of proven management expertise in
the hotel industry, or it has significant equity ownership in another hotel company, or it has an overall management
and marketing proficiency to successfully operate the Manila Hotel.
[44]
The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not
self-executory and requires implementing legislation is quite disturbing. The attempt to violate a clear constitutional
provision - by the government itself - is only too distressing. To adopt such a line of reasoning is to renounce the
duty to ensure faithfulness to the Constitution. For, even some of the provisions of the Constitution which evidently
need implementing legislation have juridical life of their own and can be the source of a judicial remedy. We cannot
simply afford the government a defense that arises out of the failure to enact further enabling, implementing or
guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt -
The executive department has a constitutional duty to implement laws, including the Constitution, even before
Congress acts - provided that there are discoverable legal standards for executive action. When the executive acts,
it must be guided by its own understanding of the constitutional command and of applicable laws. The responsibility
for reading and understanding the Constitution and the laws is not the sole prerogative of Congress. If it were, the
executive would have to ask Congress, or perhaps the Court, for an interpretation every time the executive is
confronted by a constitutional command. That is not how constitutional government operates.
[45]
Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS
which by itself possesses a separate and distinct personality. This argument again is at best specious. It is
undisputed that the sale of 51% of the MHC could only be carried out with the prior approval of the State acting
through respondent Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact
alone makes the sale of the assets of respondents GSIS and MHC a state action. In constitutional jurisprudence,
the acts of persons distinct from the government are considered state action covered by the Constitution (1) when
the activity it engages in is a public function; (2) when the government is so significantly involved with the private
actor as to make the government responsible for his action; and, (3) when the government has approved or
authorized the action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC
comes under the second and third categories of state action. Without doubt therefore the transaction, although
entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional
command.
[46]
When the Constitution addresses the State it refers not only to the people but also to the government as
elements of the State. After all, government is composed of three (3) divisions of power - legislative, executive and
judicial. Accordingly, a constitutional mandate directed to the State is correspondingly directed to the three (3)
branches of government. It is undeniable that in this case the subject constitutional injunction is addressed among
others to the Executive Department and respondent GSIS, a government instrumentality deriving its authority from
the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The
bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has
negotiated and executed the necessary contracts, and secured the requisite approvals. Since the Filipino First
Policy provision of the Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is
not an assurance that the highest bidder will be declared the winning bidder. Resultantly, respondents are not
bound to make the award yet, nor are they under obligation to enter into one with the highest bidder. For in
choosing the awardee respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of
which are presumed to be known to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be,
impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative
of the Constitution. It is a basic principle in constitutional law that all laws and contracts must conform with the
fundamental law of the land. Those which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder cannot be awarded
the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price per share.
[47]
Certainly, the
constitutional mandate itself is reason enough not to award the block of shares immediately to the foreign bidder
notwithstanding its submission of a higher, or even the highest, bid. In fact, we cannot conceive of
a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of
rights, privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a
Filipino, there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the
Filipino matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and
meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly
stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent to be simply disregarded. To
ignore it would be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But the
Constitution and laws of the Philippines are understood to be always open to public scrutiny. These are given
factors which investors must consider when venturing into business in a foreign jurisdiction. Any person therefore
desiring to do business in the Philippines or with any of its agencies or instrumentalities is presumed to know his
rights and obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad
since petitioner was well aware from the beginning that a foreigner could participate in the bidding is
meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded
the sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign
entity. In the case before us, while petitioner was already preferred at the inception of the bidding because of the
constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not have the
right or personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the
bid of the foreign firm and the apparent disregard by respondent GSIS of petitioners matching bid did the latter have
a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has been
finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the
bid of the foreign group is to insist that government be treated as any other ordinary market player, and bound by its
mistakes or gross errors of judgment, regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus we would rather remedy the indiscretion while there is
still an opportunity to do so than let the government develop the habit of forgetting that the Constitution lays down
the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules,
respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the
necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and
procedures but with the Constitution as well. The refusal of respondent GSIS to execute the corresponding
documents with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm
clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not
merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This
Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of
upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the
intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it,
the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for
Filipinos whenever such preference is ordained by the Constitution. The position of the Court on this matter could
have not been more appropriately articulated by Chief Justice Narvasa -
As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the legislature
or the executive about the wisdom and feasibility of legislation economic in nature, the Supreme Court has not been
spared criticism for decisions perceived as obstacles to economic progress and development x x x x in connection
with a temporary injunction issued by the Courts First Division against the sale of the Manila Hotel to a Malaysian
Firm and its partner, certain statements were published in a major daily to the effect that that injunction again
demonstrates that the Philippine legal system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to intervene in contracts of the kind
referred to or set itself up as the judge of whether they are viable or attainable, it is its bounden duty to make sure
that they do not violate the Constitution or the laws, or are not adopted or implemented with grave abuse of
discretion amounting to lack or excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds
of unfair and ill-informed criticism.
[48]
Privatization of a business asset for purposes of enhancing its business viability and preventing further losses,
regardless of the character of the asset, should not take precedence over non-material values. A commercial, nay
even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution
enshrines higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the
proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself
beyond judicial review when the Constitution is involved.
[49]
Nationalism is inherent in the very concept of the Philippines being a democratic and republican state, with
sovereignty residing in the Filipino people and from whom all government authority emanates. In nationalism, the
happiness and welfare of the people must be the goal. The nation-state can have no higher purpose. Any
interpretation of any constitutional provision must adhere to such basic concept. Protection of foreign investments,
while laudible, is merely a policy. It cannot override the demands of nationalism.
[50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the highest bidder
solely for the sake of privatization. We are not talking about an ordinary piece of property in a commercial
district. We are talking about a historic relic that has hosted many of the most important events in the short history
of the Philippines as a nation. We are talking about a hotel where heads of states would prefer to be housed as a
strong manifestation of their desire to cloak the dignity of the highest state function to their official visits to the
Philippines. Thus the Manila Hotel has played and continues to play a significant role as an authentic repository of
twentieth century Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul - a
place with a history of grandeur; a most historical setting that has played a part in the shaping of a country.
[51]
This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the historical
landmark - this Grand Old Dame of hotels in Asia - to a total stranger. For, indeed, the conveyance of this epic
exponent of the Filipino psyche to alien hands cannot be less than mephistophelian for it is, in whatever manner
viewed, a veritable alienation of a nations soul for some pieces of foreign silver. And so we ask: What advantage,
which cannot be equally drawn from a qualified Filipino, can be gained by the Filipinos if Manila Hotel - and all that it
stands for - is sold to a non-Filipino? How much of national pride will vanish if the nations cultural heritage is
entrusted to a foreign entity? On the other hand, how much dignity will be preserved and realized if the national
patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple
meaning of the Filipino First Policy provision of the Philippine Constitution. And this Court, heeding the clarion call
of the Constitution and accepting the duty of being the elderly watchman of the nation, will continue to respect and
protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the Manila Hotel Corporation to
RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00 per share and thereafter to
execute the necessary agreements and documents to effect the sale, to issue the necessary clearances and to do
such other acts and deeds as may be necessary for the purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco, and Hermosisima, Jr., JJ, concur.
Narvasa, C.J., (Chairman), and Melo, J., joins J. Puno in his dissent.
Padilla, J., see concurring opinion.
Vitug, J., see separate concurring opinion
Mendoza, J., see concurring opinion
Torres, J., with separate opinion
Puno, J., see dissent.
Panganiban J., with separate dissenting opinion.
[1]
See Sec. 10, par. 2, Art. XII, 1987 Constitution.
[2]
Par. I. Introduction and Highlights, Guidelines and Procedures: Second Prequalifications and Public Bidding of
the MHC Privatization; Annex A, Consolidated Reply to Comments of Respondents; Rollo, p.142.
[3]
Par. V. Guidelines for the Public Bidding, Id., pp. 153-154.
[4]
Annex A, Petition for Prohibition and Mandamus with Temporary Restraining Order; Rollo, pp.13-14.
[5]
Annex B, Petition for Prohibition and Mandamus with Temporary Restraining Order; Id., p.15.
[6]
Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 5-6; Id., pp.6-7.
[7]
Consolidated Reply to Comments of Respondents, p. 17; Id., p.133.
[8]
Par. V. J. 1,Guidelines for Public Bidding, Guidelines and Procedures: Second Prequalifications and Public
Bidding of the MHC Privatization, Annex A, Consolidated Reply to Comments of Respondents; Id., p. 154.
[9]
Respondents Joint Comment with Urgent Motion to Lift Temporary Restraining Order, p.9; Rollo, p. 44.
[10]
Marbury v. Madison, 5 U.S. 138 (1803).
[11]
11 Am Jur. 606.
[12]
16 Am Jur. 2d 281.
[13]
Id., p. 282.
[14]
See Note 12.
[15]
Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10.
[16]
Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 608.
[17]
16 Am Jur 2d 283-284.
[18]
Sec. 10, first par., reads: The Congress shall, upon recommendation of the economic and planning agency,
when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least
sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe,
certain areas of investments. The Congress shall enact measures that will encourage the formation and operation
of enterprises whose capital is wholly owned by Filipinos.
Sec. 10, third par., reads: The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.
[19]
State ex rel. Miller v. OMalley, 342 Mo 641, 117 SW2d 319.
[20]
G.R. No. 91649, 14 May 1991, 197 SCRA 52.
[21]
Sec. 11, Art. II (Declaration of Principles and State Policies), provides that [t]he State values the dignity of every
human person and guarantees full respect for human rights.
[22]
Sec. 12, Art. II, provides that [t]he State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of
the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral character shall receive the support of the government.
[23]
Sec. 13, Art. II, provides that [t]he State recognizes the vital role of the youth in nation-building and shall promote
and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth
patriotism and nationalism, and encourage their involvement in public and civic affairs.
[24]
Sec. 1, Art. XIII (Social Justice and Human Rights), provides that [t]he Congress shall give highest priority to the
enactment of measures that protect and enhance the right of all the people to human dignity, reduce social,
economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power
for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.
Sec. 2, Art. XIII, provides that [t]he promotion of social justice shall include the commitment to create economic
opportunities based on freedom of initiative and self-reliance.
[25]
Sec. 2, Art. XIV (Education, Science and Technology, Arts, Culture, and Sports), provides that [t]he State shall:
(1) Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the
needs of the people and society;
(2) Establish and maintain a system of free public education in the elementary and high school levels. Without
limiting the natural right of parents to rear their children, elementary education is compulsory for all children of
school age;
(3) Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives
which shall be available to deserving students in both public and private schools, especially to the underprivileged;
(4) Encourage non-formal, informal, and indigenous learning, independent, and out-of-school study
programs particularly those that respond to community needs; and
(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and
other skills.
[26]
G.R. No. 115455, 25 August 1994, 235 SCRA 630.
[27]
See Note 25.
[28]
Sec. 1, Art. XIV, provides that [t]he State shall protect and promote the right of all citizens to quality education at
all levels of education and shall take appropriate steps to make such education accessible to all.
[29]
G.R. No. 118910, 17 July 1995.
[30]
Sec. 5, Art. II (Declaration of Principles and State Policies), provides that [t]he maintenance of peace and order,
the protection of life, liberty, and property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.
[31]
See Note 23.
[32]
See Note 24.
[33]
Sec. 17, Art. II, provides that [t]he State shall give priority to education, science and technology, arts, culture, and
sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation
and development.
[34]
Nolledo, Jose N., The New Constitution of the Philippines Annotated, 1990 ed., p. 72.
[35]
Websters Third New International Dictionary, 1986 ed., p. 1656.
[36]
The guest list of the Manila Hotel includes Gen. Douglas MacArthur, the Duke of Windsor, President Richard
Nixon of U.S.A., Emperor Akihito of Japan, President Dwight Eisenhower of U.S.A, President Nguyen Van
Thieu of Vietnam, President Park Chung Hee of Korea, Prime Minister Richard Holt of Australia, Prime
Minister Keith Holyoake of New Zealand, President Lyndon Johnson of U.S.A., President Jose Lopez Portillo
of Mexico, Princess Margaret of England, Prime Minister Malcolm Fraser of Australia, Prime Minister
Yasuhiro Nakasone of Japan, Prime Minister Pierre Elliot Trudeau of Canada, President Raul Alfonsin of
Argentina, President Felipe Gonzalez of Spain, Prime Minister Noboru Takeshita of Japan, Prime Minister
Hussain Muhammad Ershad of Bangladesh, Prime Minister Bob Hawke of Australia, Prime Minister
Yasuhiro Nakasone of Japan, Premier Li Peng of China, Sultan Hassanal Bolkiah of Brunei, President
Ramaswami Venkataraman of India, Prime Minister Go Chok Tong of Singapore, Prime Minister Enrique
Silva Cimma of Chile, Princess Chulaborn and Mahacharri Sirindhorn of Thailand, Prime Minister Tomiichi
Murayama of Japan, Sultan Azlan Shah and Raja Permaisuri Agong of Malaysia, President Kim Young Sam
of Korea, Princess Infanta Elena of Spain, President William Clinton of U.S.A., Prime Minister Mahathir
Mohamad of Malaysia, King Juan Carlos I and Queen Sofia of Spain, President Carlos Saul Menem of
Argentina, Prime Ministers Chatichai Choonhavan and Prem Tinsulanonda of Thailand, Prime Minister
Benazir Bhutto of Pakistan, President Vaclav Havel of Czech Republic, Gen. Norman Schwarzkopf of
U.S.A., President Ernesto Perez Balladares of Panama, Prime Minister Adolfas Slezevicius of Lithuania,
President Akbar Hashemi Rafsanjani of Iran, President Askar Akayev of Kyrgyztan, President Ong Teng
Cheong of Singapore, President Frei Ruiz Tagle of Chile, President Le Duc Anh of Vietnam, and Prime
Minister Julius Chan of Papua New Guinea, see Memorandum for Petitioner, pp. 16-19.
[37]
Authored by Beth Day Romulo.
[38]
See Note 9, pp.15-16; Rollo, pp. 50-51.
[39]
Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 607.
[40]
Id., p. 612.
[41]
Id., p. 616.
[42]
Id., p. 606.
[43]
Nolledo, J.N., The New Constitution of the Philippines Annotated, 1990 ed., pp.930-931.
[44]
Bidders were required to have at least one of the these qualifications to be able to participate in the bidding
process; see Note 2.
[45]
Memorandum of Fr. Joaquin G. Bernas, S.J., p.6.
[46]
Id., pp. 3-4.
[47]
See Note 8.
[48]
Keynote Address at the ASEAN Regional Symposium on Enforcement of Industrial Property Rights held 23
October 1995 at New World Hotel, Makati City.
[49]
Speech of Senior Associate Justice Teodoro R. Padilla at the Induction of Officers and Directors of the
PHILCONSA for 1996 held 16 January 1996 at the Sky-Top, Hotel Intercontinental, Makati City.
[50]
Memorandum of Authorities submitted by former Chief Justice Enrique M. Fernando, p.5.
[51]
8 March 1996 issue of Philippine Daily Inquirer, p. B13.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-35546 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENIGNO S. AQUINO, JR., RAMON MITRA,
JR., FRANCISCO RODRIGO, AND NAPOLEON RAMA, petitioners,
vs.
HON JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. ROMEO ESPINO, CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE
CONSTABULARY,respondents.
G.R. No. L-35538 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF JOAQUIN P. ROCES, TEODORO M. LOCSIN,
SR., ROLANDO FADUL, ROSALINA GALANG, GO ENG GUAN, MAXIMO V. SOLIVEN, RENATO
CONSTANTINO, AND LUIS R. MAURICIO, petitioners,
vs.
THE SECRETARY OF NATIONAL DEFENSE; THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES;
THE CHIEF, PHILIPPINE CONSTABULARY, et al., respondents.
G.R. No. L-35539 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF JOSE W. DIOKNO, CARMEN I.
DIOKNO, *1petitioner,
vs.
JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; ROMEO ESPINO, THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES.respondents.
G.R. No. L-35540 September 17, 1974
MAXIMO V. SOLIVEN, NAPOLEON G. RAMA, AND JOSE MARI VELEZ, petitioners,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; HON. FRANCISCO TATAD, PRESS
SECRETARY; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY, respondents.
G.R. No. L-35547 September 17, 1974 *2
ENRIQUE VOLTAIRE GARCIA II, petitioner,
vs.
BRIG. GEN. FIDEL RAMOS, CHIEF, PHILIPPINE CONSTABULARY; GEN. ROMEO ESPINO, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES; AND HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL
DEFENSE, respondents.
G.R. No. L-35556 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF VERONICA L. YUYITUNG AND TAN CHIN
HIAN, petitioners,
vs.
JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT. GEN. ROMEO ESPINO, CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN. FIDEL V. RAMOS, CHIEF OF THE
PHILIPPINE CONSTABULARY, respondents.
G.R. No. L-35567 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF AMANDO DORONILA JUAN L. MERCADO,
HERNANDO L. ABAYA, ERNESTO GRANADA, LUIS D. BELTRAN, TAN CHIN HIAN, BREN GUIAO, RUBEN
CUSIPAG, ROBERTO ORDOEZ, MANUEL ALMARIO AND WILLIE BAUN, petitioners,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT. GEN. ROMEO ESPINO, CHIEF
OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE
CONSTABULARY, respondents.
G.R. No. L-35571 September 17, 1974. *3
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BREN Z. GUIAO, TERESITA M.
GUIAO,petitioner,
vs.
JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; LT. GEN. ROMEO ESPINO, CHIEF OF
STAFF OF THE ARMED FORCES OF THE PHILIPPINES: AND BRIG. GEN. FIDEL V. RAMOS, CHIEF OF THE
PHILIPPINE CONSTABULARY, respondents.
G.R. No. L-35573 September 17, 1974
ERNESTO RONDON, petitioner,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. FIDEL V. RAMOS, CHIEF,
PHILIPPINE CONSTABULARY; AND MAJOR RODULFO MIANA, respondents.
MAKALINTAL, C.J .:p
These cases are all petitions for habeas corpus, the petitioners having been arrested and detained by the military by
virtue of the Presidents Proclamation No. 1081, dated September 21, 1972.
At the outset a word of clarification is in order. This is not the decision of the Court in the sense that a decision
represents a consensus of the required majority of its members not only on the judgment itself but also on the
rationalization of the issues and the conclusions arrived at. On the final result the vote is practically unanimous; this
is a statement of my individual opinion as well as a summary of the voting on the major issues. Why no particular
Justice has been designated to write just one opinion for the entire Court will presently be explained.
At one point during our deliberations on these cases it was suggested that as Chief Justice I should write that
opinion. The impracticability of the suggestion shortly became apparent for a number of reasons, only two of which
need be mentioned. First, the discussions, as they began to touch on particular issues, revealed a lack of
agreement among the Justices as to whether some of those issues should be taken up although it was not
necessary to do so, they being merely convenient for the purpose of ventilating vexing questions of public interest,
or whether the decision should be limited to those issues which are really material and decisive in these cases.
Similarly, there was no agreement as to the manner the issues should be treated and developed. The same
destination would be reached, so to speak, but through different routes and by means of different vehicles of
approach. The writing of separate opinions by individual Justices was thus unavoidable, and understandably so for
still another reason, namely, that although little overt reference to it was made at the time, the future verdict of
history was very much a factor in the thinking of the members, no other case of such transcendental significance to
the life of the nation having before confronted this Court. Second and this to me was the insuperable obstacle I
was and am of the opinion, which was shared by six other Justices
1
at the time the question was voted upon, that
petitioner Jose W. Dioknos motion of December 28, 1973 to withdraw his petition (G.R. No. L-35539) should be granted,
and therefore I was in no position to set down the ruling of the Court on each of the arguments raised by him, except
indirectly, insofar as they had been raised likewise in the other cases.
It should be explained at this point that when the Court voted on Dioknos motion to withdraw his petition he was still
under detention without charges, and continued to remain so up to the time the separate opinions of the individual
Justices were put in final form preparatory to their promulgation on September 12, which was the last day of Justice
Zaldivars tenure in the Court.
2
Before they could be promulgated, however, a major development supervened: petitioner
Diokno was released by the President in the morning of September 11, 1974. In view thereof all the members of this Court
except Justice Castro agreed to dismiss Dioknos petition on the ground that it had become moot, with those who
originally voted to grant the motion for withdrawal citing said motion as an additional ground for such dismissal.
The petitioners in the other cases, except Benigno Aquino, Jr. (G.R. No. L-35546), either have been permitted to
withdraw their petitions or have been released from detention subject to certain restrictions.
3
In the case of Aquino,
formal charges of murder, subversion and illegal possession of firearms were lodged against him with a Military
Commission on August 11, 1973; and on the following August 23 he challenged the jurisdiction of said Commission as
well as his continued detention by virtue of those charges in a petition for certiorari and prohibition filed in this Court (G.R.
No.
L-37364). The question came up as to whether or not Aquinos petition for habeas corpus should be dismissed on the
ground that the case as to him should more appropriately be resolved in this new petition. Of the twelve Justices,
however, eight voted against such dismissal and chose to consider the case on the merits.
4
On Dioknos motion to withdraw his petition I voted in favor of granting it for two reasons. In the first place such
withdrawal would not emasculate the decisive and fundamental issues of public interest that demanded to be
resolved, for they were also raised in the other cases which still remained pending. Secondly, since it was this
petitioners personal liberty that was at stake, I believed he had the right to renounce the application for habeas
corpus he initiated. Even if that right were not absolute I still would respect his choice to remove the case from this
Courts cognizance, regardless of the fact that I disagreed with many of his reasons for so doing. I could not escape
a sense of irony in this Courts turning down the plea to withdraw on the ground, so he alleges among others, that
this is no longer the Court to which he originally applied for relief because its members have taken new oaths of
office under the 1973 Constitution, and then ruling adversely to him on the merits of his petition.
It is true that some of the statements in the motion are an affront to the dignity of this Court and therefore should not
be allowed to pass unanswered. Any answer, however, would not be foreclosed by allowing the withdrawal. For my
part, since most of those statements are of a subjective character, being matters of personal belief and opinion, I
see no point in refuting them in these cases. Indeed my impression is that they were beamed less at this Court than
at the world outside and designed to make political capital of his personal situation, as the publicity given to them by
some segments of the foreign press and by local underground propaganda news sheets subsequently confirmed. It
was in fact from that perspective that I deemed it proper to respond in kind, that is, from a non-judicial forum, in an
address I delivered on February 19, 1974 before the LAWASIA, the Philippine Bar Association and the Philippine
Lawyers Association. Justice Teehankee, it may be stated, is of the opinion that a simple majority of seven votes
out of twelve is legally sufficient to make the withdrawal of Dioknos petition effective, on the theory that the
requirement of a majority of eight votes applies only to a decision on the merits.
In any event, as it turned out, after petitioner Diokno was released by the President on September 11 all the
members of this Court except Justice Castro were agreed that his petition had become moot and therefore should
no longer be considered on the merits. This notwithstanding, some of the opinions of the individual members,
particularly Justices Castro and Teehankee, should be taken in the time setting in which they were prepared, that is,
before the order for the release of Diokno was issued.
The Cases.
The events which form the background of these nine petitions are related, either briefly or in great detail, in the
separate opinions filed by the individual Justices. The petitioners were arrested and held pursuant to General Order
No. 2 of the President (September 22, 1972), "for being participants or for having given aid and comfort in the
conspiracy to seize political and state power in the country and to take over the Government by force ..."
General Order No. 2 was issued by the President in the exercise of the powers he assumed by virtue of
Proclamation No. 1081 (September 21, 1972) placing the entire country under martial law. The portions of the
proclamation immediately in point read as follows:
xxx xxx xxx
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the
powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place
the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in
my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines,
to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my direction.
In addition, I do hereby order that all persons presently detained, as well as all others who may
hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and
offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection
therewith, for crimes against national security and the law of nations, crimes against public order,
crimes involving usurpation of authority, rank, title and improper use of names, uniforms and
insignia, crimes committed by public officers, and for such other crimes as will be enumerated in
orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of
any decree, order or regulation promulgated by me personally or promulgated upon my direction
shall be kept under detention until otherwise ordered released by me or by my duly designated
representative.
The provision of the 1935 Constitution referred to in the proclamation reads: "the President shall be commander-in-
chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or
rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ
of habeas corpus, or place the Philippines or any part thereof under martial law."
1. The first major issue raised by the parties is whether this Court may inquire into the validity of Proclamation No.
1081. Stated more concretely, is the existence of conditions claimed to justify the exercise of the power to declare
martial law subject to judicial inquiry? Is the question political or justiciable in character?
Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino hold that the question is political and therefore its
determination is beyond the jurisdiction of this Court. The reasons are given at length in the separate opinions they
have respectively signed. Justice Fernandez adds that as a member of the Convention that drafted the 1973
Constitution he believes that "the Convention put an imprimatur on the proposition that the validity of a martial law
proclamation and its continuation is political and non-justiciable in character."
Justice Barredo, on the other hand, believes that political questions are not per se beyond the Courts jurisdiction,
the judicial power vested in it by the Constitution being plenary and all-embracing, but that as a matter of policy
implicit in the Constitution itself the Court should abstain from interfering with the Executives Proclamation, dealing
as it does with national security, for which the responsibility is vested by the charter in him alone. But the Court
should act, Justice Barredo opines, when its abstention from acting would result in manifest and palpable
transgression of the Constitution proven by facts of judicial notice, no reception of evidence being contemplated for
purposes of such judicial action.
It may be noted that the postulate of non-justiciability as discussed in those opinions involves disparate methods of
approach. Justice Esguerra maintains that the findings of the President on the existence of the grounds for the
declaration of martial law are final and conclusive upon the Courts. He disagrees vehemently with the ruling
inLansang vs. Garcia, 42 SCRA 448, December 11, 1971, and advocates a return to Barcelon vs. Baker, 5 Phil. 87
(1905), and Montenegro vs. Castaeda, 91 Phil. 882 (1952). Justice Barredo, for his part, holds that Lansang need
not be overturned, indeed does not control in these cases. He draws a distinction between the power of the
President to suspend the privilege of the writ of habeas corpus, which was the issue in Lansang, and his power to
proclaim martial law, calling attention to the fact that while the Bill of Rights prohibits suspension of the privilege
except in the instances specified therein, it places no such prohibition or qualification with respect to the declaration
of martial law.
Justice Antonio, with whom Justices Makasiar, Fernandez and Aquino concur, finds that there is no dispute as to the
existence of a state of rebellion in the country, and on that premise emphasizes the factor of necessity for the
exercise by the President of his power under the Constitution to declare martial law, holding that the decision as to
whether or not there is such necessity is wholly confided to him and therefore is not subject to judicial inquiry, his
responsibility being directly to the people.
Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee and Muoz Palma. They hold that the
constitutional sufficiency of the proclamation may be inquired into by the Court, and would thus apply the principle
laid down in Lansang although that case refers to the power of the President to suspend the privilege of the writ
of habeas corpus. The recognition of justiciability accorded to the question in Lansang, it should be emphasized, is
there expressly distinguished from the power of judicial review in ordinary civil or criminal cases, and is limited to
ascertaining "merely whether he (the President) has gone beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the wisdom of his act." The test is not whether the Presidents
decision is correct but whether, in suspending the writ, he did or did not act arbitrarily. Applying this test, the finding
by the Justices just mentioned is that there was no arbitrariness in the Presidents proclamation of martial law
pursuant to the 1935 Constitution; and I concur with them in that finding. The factual bases for the suspension of the
privilege of the writ of habeas corpus, particularly in regard to the existence of a state of rebellion in the country, had
not disappeared, indeed had been exacerbated, as events shortly before said proclamation clearly demonstrated.
On this Point the Court is practically unanimous; Justice Teehankee merely refrained from discussing it.
Insofar as my own opinion is concerned the cleavage in the Court on the issue of justiciability is of not much more
than academic interest for purposes of arriving at a judgment. I am not unduly exercised by Americas decisions on
the subject written in another age and political clime, or by theories of foreign authors in political science. The
present state of martial law in the Philippines is peculiarly Filipino and fits into no traditional patterns or judicial
precedents.
In the first place I am convinced (as are the other Justices), without need of receiving evidence as in an ordinary
adversary court proceeding, that a state of rebellion existed in the country when Proclamation No. 1081 was issued.
It was a matter of contemporary history within the cognizance not only of the courts but of all observant people
residing here at the time. Many of the facts and events recited in detail in the different "Whereases" of the
proclamation are of common knowledge. The state of rebellion continues up to the present. The argument that while
armed hostilities go on in several provinces in Mindanao there are none in other regions except in isolated pockets
in Luzon, and that therefore there is no need to maintain martial law all over the country, ignores the sophisticated
nature and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes between
organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through
printed news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of
funds, procurement of arms and material, fifth-column activities including sabotage and intelligence all these are
part of the rebellion which by their nature are usually conducted far from the battle fronts. They cannot be
counteracted effectively unless recognized and dealt with in that context.
Secondly, my view, which coincides with that of other members of the Court as stated in their opinions, is that the
question of validity of Proclamation No. 1081 has been foreclosed by the transitory provision of the 1973
Constitution [Art. XVII, Sec. 3(2)] that "all proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of the land and shall remain valid, legal, binding
and effective even after ... the ratification of this Constitution ..." To be sure, there is an attempt in these cases to
resuscitate the issue of the effectivity of the new Constitution. All that, however, is behind us now. The question has
been laid to rest by our decision in Javellana vs. Executive Secretary (L-36142, 50 SCRA 30, March 31, 1973), and
of course by the existing political realities both in the conduct of national affairs and in our relations with other
countries.
On the effect of the transitory provision Justice Muoz Palma withholds her assent to any sweeping statement that
the same in effect validated, in the constitutional sense, all "such proclamations, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President." All that she concedes is that the transitory provision
merely gives them "the imprimatur of a law but not of a constitutional mandate," and as such therefore "are subject
to judicial review when proper under the Constitution.
Finally, the political-or-justiciable question controversy indeed, any inquiry by this Court in the present cases into the
constitutional sufficiency of the factual bases for the proclamation of martial law has become moot and
purposeless as a consequence of the general referendum of July 27-28, 1973. The question propounded to the
voters was: "Under the (1973) Constitution, the President, if he so desires, can continue in office beyond 1973. Do
you want President Marcos to continue beyond 1973 and finish the reforms he initiated under Martial Law?" The
overwhelming majority of those who cast their ballots, including citizens between 15 and 18 years, voted
affirmatively on the proposal. The question was thereby removed from the area of presidential power under the
Constitution and transferred to the seat of sovereignty itself. Whatever may be the nature of the exercise of that
power by the President in the beginning whether or not purely political and therefore non-justiciable this Court
is precluded from applying its judicial yardstick to the act of the sovereign.
2. With respect to the petitioners who have been released from detention but have not withdrawn their petitions
because they are still subject to certain restrictions,
5
the ruling of the Court is that the petitions should be dismissed.
The power to detain persons even without charges for acts related to the situation which justifies the proclamation of
martial law, such as the existence of a state of rebellion, necessarily implies the power (subject, in the opinion of the
Justices who consider Lansang applicable, to the same test of arbitrariness laid down therein), to impose upon the
released detainees conditions or restrictions which are germane to and necessary to carry out the purposes of the
proclamation. Justice Fernando, however, "is for easing the restrictions on the right to travel of petitioner Rodrigo" and
others similarly situated and so to this extent dissents from the ruling of the majority; while Justice Teehankee believes
that those restrictions do not constitute deprivation of physical liberty within the meaning of the constitutional provision on
the privilege of the writ ofhabeas corpus.
It need only be added that, to my mind, implicit in a state of martial law is the suspension of the said privilege with
respect to persons arrested or detained for acts related to the basic objective of the proclamation, which is to
suppress invasion, insurrection, or rebellion, or to safeguard public safety against imminent danger thereof. The
preservation of society and national survival take precedence. On this particular point, that is, that the proclamation
of martial law automatically suspends the privilege of the writ as to the persons referred to, the Court is practically
unanimous. Justice Fernando, however, says that to him that is still an open question; and Justice Muoz Palma
qualifiedly dissents from the majority in her separate opinion, but for the reasons she discusses therein votes for the
dismissal of the petitions.
IN VIEW OF ALL THE FOREGOING AND FOR THE REASONS STATED BY THE MEMBERS OF THE COURT IN
THEIR SEPARATE OPINIONS, JUDGMENT IS HEREBY RENDERED DISMISSING ALL THE PETITIONS,
EXCEPT THOSE WHICH HAVE BEEN PREVIOUSLY WITHDRAWN BY THE RESPECTIVE PETITIONERS WITH
THE APPROVAL OF THIS COURT, AS HEREINABOVE MENTIONED. NO COSTS.
Makasiar, Esguerra, Fernandez, Muoz Palma and Aquino, JJ., concur.
Prefatory Note
(written on September 12, 1974)
My separate opinion below in the nine cases at bar was handed to Chief Justice Querube C. Makalintal on Monday,
September 9, 1974, for promulgation (together with the individual opinions of the Chief Justice and the other
Justices) on September 12 (today) as agreed upon by the Court.
On September 11 the petitioner Jose W. Diokno was released from military custody. The implications of this
supervening event were lengthily discussed by the Court in its deliberations in the afternoon. Eleven members
thereafter voted to dismiss Dioknos petition as being "moot and academic;" I cast the lone dissenting vote. Although
perhaps in the strictest technical sense that accords with conventional legal wisdom, the petition has become "moot"
because Diokno has been freed from physical confinement, I am nonetheless persuaded that the grave issues of
law he has posed and the highly insulting and derogatory imputations made by him against the Court and its
members constitute an inescapable residue of questions of transcendental dimension to the entire nation and its
destiny and to the future of the Court questions that cannot and should not be allowed to remain unresolved and
unanswered.
I have thus not found it needful nor even advisable to recast my separate opinion or change a word of it.
I invite the reader to assess my 38-page separate opinion which immediately follows, in the light of the foregoing
context and factual setting.
FRED RUIZ CASTRO
Associate Justice.
SEPARATE OPINION
(written before Sept. 9, 1974)
L-35539, L-35546, L-35538, L-35540, L-35567, L-35556,
L-35571, L-35573, and L-35547
Separate Opinions
CASTRO, J .:
I
These nine cases are applications for writs of habeas corpus. The petitions aver in substance that on September 21,
1972 the President of the Philippines placed the country under martial law (Proclamation 1081); that on various
dates from September 22 to September 30, 1972, the petitioners or the persons in whose behalf the applications
were made were arrested by the military authorities and detained, some at Fort Bonifacio in Makati, Rizal, others at
Camp Aguinaldo and still others at Camp Crame, both in Quezon City; and that the arrest and detention of the
petitioners were illegal, having been effected without a valid order of a competent court of justice.
Writs of habeas corpuz were issued by the Court directing the respondents Secretary of National Defense, Chief of
Staff of the Armed Forces of the Philippines, and Chief of the Philippine Constabulary, to produce the bodies of the
petitioners in Court on designated dates and to make returns to the writs. In due time the respondents, through the
Solicitor General, filed their returns to the writs and answers to the petitions. Admitting that the petitioners had been
arrested and detained, the respondents nevertheless justified such arrest and detention as having been legally
ordered by the President of the Philippines pursuant to his proclamation of martial law, the petitioners being
regarded as participants or as having given aid and comfort "in the conspiracy to seize political and state power and
to take over the government by force." The respondents traversed the petitioners contention that their arrest and
detention were unconstitutional.
Hearings were held on September 26 and 29 and October 6, 1972, at which the petitioners were produced in Court.
Thereafter the parties filed memoranda.
Meanwhile, some of the petitioners, with leave of Court, withdrew their petitions;
1
others, without doing so, were
subsequently released from custody under certain restrictive conditions.
2
Enrique Voltaire Garcia II, the sole petitioner in
L-35547 and one of those released, having died shortly after his release, the action was deemed abated as to him.
As of this date only Jose W. Diokno, in whose behalf the petition in L-35539 was filed, and Benigno S. Aquino, Jr. in
L35546, are still in military custody.
On August 23, 1973 the petitioner Aquino filed an action for certiorari and prohibition with this Court alleging that on
August 11, 1973 charges of murder, subversion and illegal possession of firearms were filed against him with a
military commission; that his trial by the military court which was to be held on August 27, 29 and 31, 1973 was
illegal because the proclamation of martial law was unconstitutional; and that he could not expect a fair trial because
the President of the Philippines, having prejudged his case, could reverse any judgment of acquittal by the military
court and sentence him to death. That action, docketed as L-37364 and entitled "Benigno S. Aquino, Jr. vs. Military
Commission No. 2," is still pending consideration and decision.
On the other hand, Jose W. Diokno, on December 28, 1973, filed a motion to withdraw the petition filed in his behalf,
imputing delay in the disposition of his case, and asseverating that because of the decision of the Court in the
Ratification Cases
3
and the action of the members of the Court in taking an oath to support the new Constitution, he
cannot "reasonably expect to get justice in this case." The respondents oppose the motion on the grounds that there is a
public interest in the decision of these cases and that the reasons given for the motion to withdraw are untrue, unfair and
contemptuous.
II
The threshold question is whether to allow the withdrawal of the petition in
L-35539 filed in behalf of Diokno. In his letter to his counsel, which is the basis of the motion to withdraw, Diokno
states the following considerations: first, the delay in the disposition of his case; second, the dismissal of the
petitions in the Ratification Cases, contrary to the Courts ruling that the 1973 Constitution was not validly ratified;
and third, the action of the members of the Court in taking an oath of allegiance to the new Constitution. Diokno
asserts that "a conscience that allows a man to rot behind bars for more than one year and three months without
trial of course, without any charges at all is a conscience that has become stunted, if not stultified" and that "in
swearing to support the new Constitution, the five members of the Court who had held that it had not been validly
ratified, have not fulfilled our expectations." He goes on to say: "I do not blame them. I do not know what I would
have done in their place. But, at the same time, I can not continue to entrust my case to them; and I have become
thoroughly convinced that our quest for justice in my case is futile."
As already noted, the Solicitor General, in behalf of the respondents, opposes the withdrawal of the petition on the
ground of public interest, adding that the motion to withdraw cannot be granted by the Court without in effect
admitting the "unfair, untrue and contemptuous" statements contained therein.
Without passing on the liability of any party in this case for contemptuous statements made, the Court (by a vote of
5 to 7) denied the motion.
I voted for the denial of the motion to withdraw for inescapable reasons that I now proceed to expound.
The general rule is that in the absence of a statute expressly or impliedly prohibiting the withdrawal of an action, the
party bringing such action may dismiss it even without the consent of the defendant or respondent where the latter
will not be prejudiced, although it may be necessary to obtain leave of court. But there are recognized exceptions:
when the public interest or questions of public importance are involved.
5
For example, the fact that a final
determination of a question involved in an action is needed or will be useful as a guide for the conduct of public officers or
tribunals is a sufficient reason for retaining an action which would or should otherwise be dismissed. Likewise, appeals
may be retained if the questions involved are likely to arise frequently in the future unless they are settled by a court of
last resort.
Thus, in Gonzales vs. Commission on Elections,
6
an action for declaratory judgment impugning the validity of Republic
Act No. 4880 which prohibits the early nomination of candidates for elective offices and early election campaigns or
partisan political activities became moot by reason of the holding of the 1967 elections before decision could be rendered.
Nonetheless the Court treated the petition as one for prohibition and rendered judgment in view of "the paramount public
interest and the undeniable necessity for a ruling, the national elections [of 1969] being barely six months away.
In Krivenko vs. Register of Deeds,
7
the Court denied the petition to withdraw, an appeal in view of the public importance
of the questions involved, and lest "the constitutional mandate [proscribing the sale of lands to aliens] ... be ignored or
misconceived with all the harmful consequences ... upon the national economy."
The petitioner Diokno has made allegations to the effect that the President has "arrogated" unto himself the powers
of government by "usurping" the powers of Congress and "ousting" the courts of their jurisdiction, thus establishing
in this country a "virtual dictatorship." Diokno and his Counsel have in fact stressed that the present trend of events
in this country since the proclamation of martial law bears a resemblance to the trend of events that led to the
establishment of a dictatorship in Germany under Hitler. There is thus a profound public interest in the resolution of
the questions raised in the cases at bar, questions that, in the phrase of Chief Justice Marshall inMarbury vs.
Madison,
8
are "deeply interesting to the nation." I apprehend that in view of the import of the allegations made by Diokno
and his counsel, incalculable harm or, in the very least, great disservice may be caused to the national interest if these
cases are not decided on the merits. As the Solicitor General has observed," petitioners [Dioknos] arrest and detention
have been so exploited in the hate campaign that the only way to protect the integrity of the government is to insist on a
decision of this case in the forum in which the petitioner had chosen to bring them. Otherwise, like festering sores, the
issues stirred up by this litigation will continue to agitate the nation."
Prescinding from the policy considerations just discussed, I am gladdened that the Court has not shunted aside
what I regard as the inescapable moral constraints in the petitioner Dioknos motion to withdraw his petition
forhabeas corpus.
9
The Court repudiated the facile recourse of avoiding resolution of the issues on the pretext that
Diokno insists on withdrawing his petition. It is thus not a mere happenstance that, notwithstanding that seven members of
the Court are of the view that Diokno has an absolute right to withdraw his petition, the Court has confronted the issues
posed by him, and now resolves them squarely, definitively and courageously. No respectable legal historian or
responsible chronicler of the nations destiny will therefore have any reason to level the indictment that once upon a grave
national crisis the Court abdicated its constitutional prerogative of adjudication and forswore the sacred trust reposed in it
as the nations ultimate arbiter on transcendental, far-reaching justiciable questions.
With respect to the reasons given for the motion to withdraw, the Court is mindful that it has taken some time to
resolve these cases. In explanation let it be said that the issues presented for resolution in these cases are of the
utmost gravity and delicateness. No question of the awesome magnitude of those here presented has ever
confronted the Court in all its history. I am not aware that any other court, except possibly the Circuit Court in Ex
parte Merryman,
10
has decided like questions during the period of the emergency that called for the proclamation of
martial law.
But then in Merryman the Court there held that under the U.S. Federal Constitution the President did not have
power to suspend the privilege of the writ of habeas corpus. Otherwise, where the question involved not power but
rather the exercise of power, courts have declined to rule against the duly lasted. As Court Glendon Schubert noted,
the U.S. Supreme Court "was unwilling to [do so] until the war was over and Lincoln was dead."
Thus, in Ex parte Milligan,
11
the decision voiding the petitioners trial by a military court was not announced until
December 14, 1866, after the Civil War was over. The Civil War began on May 3, 1861 with the capture of Fort Sumter by
Confederate forces. Lambdin Milligan was charged before a military commission with aiding rebels, inciting insurrection,
disloyal practices and violation of the laws of war. His trial ran from September to December 1862; he was convicted on
October 21, 1864 and ordered executed on May 19, 1865. On May 10, 1865 he applied for a writ of habeas corpus from
the Circuit Court of Indianapolis. On May 11, Justice Davis and Judge McDonald certified that they differed in opinion and,
therefore, pursuant to the statute of 1802, elevated their questions to the Supreme Court. On June 3, 1865 the death
sentence was commuted to life imprisonment by President Johnson who had succeeded to the Presidency after the
assassination of Lincoln. The Supreme Court heard the parties arguments for eight days, on March 5, 6, 7, 8, 9, 12 and
13, and April 3, 1866. On December 14, 1866 the decision of the Supreme Court voiding Milligans trial was announced.
In In Re Moyer,
12
martial rule was proclaimed in Colorado on March 23, 1904. Application for a writ of habeas
corpus was filed with the State Supreme Court on April 14, 1904, seeking the release of Moyer who had been detained
under the Colorado governors proclamation. On June 6, 1904 the complaint was dismissed and the petitioner was
remanded to the custody of the military authorities. The Court held that as an incident to the proclamation of martial law,
the petitioners arrest and detention were lawful. Moyer subsequently brought an action for damages for his imprisonment
from March 30 to June 15, 1904. The complaint was dismissed by the Circuit Court. On writ of error, the U.S. Supreme
Court affirmed, holding that "So long as such arrests are made in good faith and in the honest belief that they are needed
in order to head the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of
office, on the ground that he had no reasonable ground for his belief."
13
Finally, in Duncan vs. Kahanamoku,
14
Hawaii was placed under martial rule on December 7, 1941, after the Japanese
sneak attack on Pearl Harbor. The petitioner Duncan was tried by a provost court on March 2, 1944, and found guilty on
April 13 of assault on two marine sentries. The other petitioner, White, was charged on August 25, 1942, also before a
provost court, with embezzling stocks belonging to another civilian. White and Duncan questioned the power of the
military tribunals in petitions for habeas corpus filed with the District Court of Hawaii on March 14 and April 14, 1944,
respectively. Writs were granted on May 2, 1944, and after trial the District Court held the military trials void and ordered
the release of Duncan and White. On October 24, 1944 the privilege of the writ of habeas corpus was restored and martial
law was terminated in Hawaii. On appeal, the decision of the District Court was reversed.
15
Certiorari was granted by the
U.S. Supreme Court on February 12, 1945. 16 On February 25, 1946 the Court held that the trials of White and Duncan
by the military tribunals were void.
In truth, as the Court in Milligan recognized, its decision could not have been made while the Civil War lasted.
Justice Davis wrote:
During the Wicked Rebellion, the temper of the times did not allow that calmness in deliberation and
discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of
safety were mingled with the exercise of power; and feelings and interests prevailed which are
happily terminated. Now that the public safety is assured, this question as well as all others, can be
discussed and decided without passion or the admixture of an clement not required to form a legal
judgment. We approached the investigation of this case fully sensible of the magnitude of the inquiry
and the of full and cautious deliberation.
17
No doubt there is a point, although controversial, in the observation that in the instances just examined a successful
challenge was possible only retroactively, after the cessation of the hostilities which would under any circumstances
have justified the judgment of the military.
18
Nor did it offend against principle or ethics for the members of this Court to take an oath to support the 1973
Constitution. After this Court declared that, with the dismissal of the petitions questioning the validity of the
ratification of the new Constitution, there was "no longer any judicial obstacle to the new Constitution being
considered in force and effect,"
19
it became the duty of the members of the Court, let alone all other government
functionaries, to take an oath to support the new Constitution. While it is true that a majority of six justices declared that
the 1973 Constitution was not validly ratified, it is equally true that a majority of six justices held that the issue of
its effectivitywas a political question, which the Court was not equipped to determine, depending as it did on factors for
which the judicial process was not fit to resolve. Resolution of this question was dispositive of all the issues presented in
the Ratification Cases. It thus became untenable for the members of the Court who held contrary opinions to press their
opposition beyond the decision of those cases. Fundamental respect for the rule of law dictated that the members of the
Court take an oath to uphold the new Constitution. There is nothing in that solemn oath that debases their individual
personal integrity or renders them unworthy or incapable of doing justice in these cases. Nor did the environmental milieu
of their adjuration in any manner demean their high offices or detract from the legitimacy of the Court as the highest
judicial collegium of the land.
III
From its Anglo-Saxon origin and throughout its slow evolution, the concept, scope and boundaries, application,
limitations and other facets of martial law have been the subject of misunderstanding, controversy and debate.
20
To
the legal scholar interested in set legal principles and precise distinctions, martial law could be a frustrating subject. On
the matter of its definition alone, it is known to have as many definitions as there are numerous authors and court decision
s (not to discount the dissenting opinions) on the subject. The doctrinal development of martial law has relied mainly on
case law,
21
and there have been relatively few truly distinctive types of occasions where martial law, being the
extraordinary remedy that it is, has been resorted to.
In the Philippines, the only other notable instance when martial law was declared was on September 22, 1944, per
Proclamation No. 29 promulgated by President Jose P. Laurel. But this was pursuant to the constitution of the short-
lived Japanese Occupation Republic, and the event has not been known to be productive of any jurisprudential
pronouncements emanating from the high court of the land.
Notwithstanding the confused state of jurisprudence on the subject of martial law in England and in the United
States, and, consequently, in the Philippines, a useful knowledge of the law on the subject can fairly be had from a
study of its historical background and its rationale, its doctrinal development, applicable constitutional and statutory
provisions, and authoritative court decisions and commentaries.
Legal scholars trace the genesis of martial law to England starting from the age of the Tudors and the Stuarts in the
14th century when it was first utilized for the suppression of rebellions and disorders. It later came to be employed in
the British colonies and dominions where its frequent exercise against British subjects gave rise to the criticism that
it was being exploited as a weapon to enhance British imperialism.
22
In the United States, martial law was declared on numerous occasions from the revolutionary period to the Civil
War, and after the turn of the century. One of the earliest instances in American history was the declaration of
martial law by Gen. Andrew Jackson before the Battle of New Orleans in 1814. Fearing that the New Orleans
legislature might capitulate to the British, he placed the State under "strict martial law" and forbade the State
legislature to convene. Martial law was lifted after the American victory over British arms. The Civil War period saw
the declaration of martial law on many occasions by both the Confederate and the Union authorities. It has also
been resorted to in cases of insurrection and rebellion, as exemplified by the Whiskey rebellion (1794 in
Pennsylvania and Virginia) and the Dorrs rebellion (1842 in Rhode Island). Martial law has also been utilized during
periods of disaster, such as the San Francisco earthquake and fire of 1906, and in industrial disputes involving
violence and disorder. It has likewise been variously instituted to police elections, to take charge of ticket sales at a
football game, to prevent the foreclosure of mortgages to close a race track. In an extreme case, the governor of
Georgia proclaimed martial law around a government building to exclude from its premises a public official whom he
was enjoined from removing.
23
At the close of the World War I, the term "martial law" was erroneously employed to refer to the law administered in
enemy territory occupied by the allied forces pending the armistice . 21 William Winthrop states that the earlier
confusion regarding the concept of martial law, resulting partly from the wrong definition of the term by the Duke of
Wellington who had said that "it is nothing more nor less than the will of the general," had misled even the Supreme
Court of the United States.
25
In the leading case of Ex Parte Milligan,
26
however, Chief Justice Chase, in his dissenting
opinion, clarified and laid down the classic distinctions between the types of military jurisdiction in relation to the terms
"martial law," "military law" and "military government," which to a great extent cleared the confusion in the application of
these terms.
These distinctions were later incorporated in the Manual for Courts-Martial of the United States Army,
27
after which
the Manual for Courts-Martial of the Armed Forces of the Philippines, promulgated on December 17, 1938 pursuant to
Executive Order No. 178, was patterned. In essence, these distinctions are as follows:
a. Military jurisdiction in relation to the term military law is that exercised by a government "in the
execution of that branch of its municipal law which regulates its military establishment." (In the U.S.
and the Philippines, this refers principally to the statutes which embody the rules of conduct and
discipline of members of their respective armed forces. In the Philippines we have for this purpose
Commonwealth Act No. 408, as amended, otherwise known as "The Article of War").
b. Military jurisdiction in relation to the term martial law is that exercised in time of rebellion and civil
war by a government temporarily governing the civil population of a locality through its military
forces, without the authority of written law, as necessity may require.
28
c. Military jurisdiction in relation to the term military government is that "exercised by a belligerent
occupying an enemys territory."
29
(A familiar example of a military government was, of course, that
established and administered by the Japanese armed forces in the Philippines from 1942 to 1945).
What is the universally accepted fundamental justification of martial law? Wiener in A Practical Manual Martial
Law,
30
ventures this justification: "Martial Law is the public law of necessity. Necessity calls it forth, necessity justifies its
existence, and necessity measures the extent and degree to which it may be employed."
Martial law is founded upon the principle that the state has a right to protect itself against those who would destroy
it, and has therefore been likened to the right of the individual to self-defense.
31
It is invoked as an extreme measure,
and rests upon the basic principle that every state has the power of self-preservation, a power inherent in all states,
because neither the state nor society would exist without it.
32
IV
I now proceed to discuss the issues posed in these cases.
In Proclamation 1081, dated September 21, 1972, the President of the Philippines declared that lawless elements,
supported by a foreign power, were in "armed insurrection and rebellion against the Government of the Philippines
in order to forcibly seize political and state power, overthrow the duly constituted government and supplant our
existing political, social, economic and legal order with an entirely new one ... based on the Marxist-Leninist-Maoist
teachings and beliefs." He enumerated many and varied acts of violence committed in pursuance of the insurrection
and rebellion. He therefore placed the Philippines under martial law, commanded the armed forces to suppress the
insurrection and rebellion, enforce obedience to his decrees, orders and regulations, and arrest and detain those
engaged in the insurrection and rebellion or in other crimes "in furtherance or on the occasion thereof, or incident
thereto or in connection therewith." The President invoked his powers under article VII section 10(2) of the 1935
Constitution "to save the Republic and reform our society."
33
By General Order No. 2 the President directed the Secretary of National Defense to "forthwith arrest or cause the
arrest ... the individuals named in the attached lists for being participants or for having given aid and comfort in the
conspiracy to seize political and state power in the country and to take over the government by force ... in order to
prevent them from further committing acts that are inimical or injurious ..." The Secretary was directed to hold in
custody the individuals so arrested "until otherwise so ordered by me or by my duly designated representative." The
arrest and detention of the petitioners in these cases appear to have been made pursuant to this order.
I cannot blink away the stark fact of a continuing Communist rebellion in the Philippines. The Court has repeatedly
taken cognizance of this fact in several eases decided by it. In 1971, in Lansang vs. Garcia,
34
the Court, after
reviewing the history of the Communist movement in the country since the 1930s, concluded: "We entertain, therefore, no
doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and
have thus been and still are engaged in rebellion against the Government of the Philippines." It affirmed this finding in
1972 35 in sustaining the validity of the Anti-Subversion Act (Republic Act 1700). The Act is itself a congressional
recognition and acute awareness of the continuing threat of Communist subversion to democratic institutions in this
country. Enacted in 1957, it has remained in the statute books despite periodic agitation in many quarters for its total
excision.
At times the rebellion required no more than ordinary police action, coupled with criminal prosecutions. Thus the
1932 Communist trials resulted in the conviction of the well-known Communists of the day: Crisanto Evangelista,
Jacinto G. Manahan, Dominador J. Ambrosio, Guillermo Capadocia, Ignacio Nabong and Juan Feleo, among
others, for crimes ranging from illegal association to rebellion and sedition.
36
The end of World War II saw the resurgence of the Communist rebellion. Now with an army forged out of the former
Hukbalahaps (the armed resistance against the Japanese) and renamed Hukbong Mapagpalaya ng Bayanor HMB,
the threat to the security of the state became so malevolent that on October 22, 1950, President Elpidio Quirino was
impelled to suspend the privilege of the writ of habeas corpus. This enabled the Government to effect the
apprehension of top Communist Party leaders Guillermo Capadocia, Flavio Nava, Amado V. Hernandez, Jesus
Lava, Jose Lava, Angel Baking and Simeon Rodriguez, among others.
37
When challenged by one of those detained
under the Presidential proclamation the suspension of the privilege of the writ of habeas corpus was sustained by the
Court.
38
The beginning of the 1970s was marked by the rise of student activism. This phenomenon swept around the globe,
and did not spare our own colleges and universities. Soon the campuses became staging grounds for student
demonstrations that generally ended in bloody and not infrequently lethal street riots.
In Navarro vs. Villegas,
39
in upholding the power of the Mayor of Manila to determine the place and time for the holding
of public assemblies, this Court noted
That experiences in connection with present assemblies and demonstrations do not warrant the
Courts disbelieving respondent Mayors appraisal that a public rally at Plaza Miranda, as compared
to one at the Sunken Gardens as he suggested, poses a clearer and more imminent danger of
public disorders, breaches of the peace, criminal acts, and even bloodshed as an aftermath of such
assemblies, and petitioner has manifested that it has no means of preventing such disorders;
That, consequently, every time that such assemblies are announced, the community is placed in
such a state of fear and tension that offices are closed early and employees dismissed storefronts
boarded up, classes suspended, and transportation disrupted to the general detriment of the public.
Riding on the crest of student unrest, the Communist rebellion gained momentum. As the Court noted in Lansang
vs. Garcia,
40
[T]he reorganized Communist Party of the Philippines has, moreover, adopted Maos concept of
protracted peoples war, aimed at the paralyzation of the will to resist of the government, of the
political, economic and intellectual leadership, and of the people themselves; that conformably to
such concept the Party has placed special emphasis upon most extensive and intensive program of
subversion by the establishment of front organizations in urban centers, the organization of armed
city partisans and the infiltration in student groups, labor unions, and farmer and professional
groups; that the CPP has managed to infiltrate or establish and control nine (9) major labor
organizations; that it has exploited the youth movement and succeeded in making Communist fronts
of eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30)
mass organizations actively advancing the CPP interests, among which are the Malayang Samahan
ng Magsasaka (MASAKA) the Kabataang Makabayan (KM), the Movement for the Advancement of
Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM),
and the Malayang Pagkakaisa ng Kabataang Pilipino (MPKP); that, as of August, 1971, the KM had
two hundred forty-five (245) operational chapters throughout the Philippines, of which seventy-three
(73) were in the Greater Manila Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon,
forty-two (42) in the Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had
recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-three i33) ended
in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these
actions were organized, coordinated or led by the aforementioned front organizations; that the
violent demonstrations were generally instigated by a small, but well-trained group of armed
agitators; that the number of demonstrations heretofore staked in 1971 has already exceeded those
in 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of
fifteen (15) persons and the injury of many more.
The mounting level of violence necessitated the suspension, for the second time, of the privilege of the writ
ofhabeas corpus on August 21, 1971. The Governments action was questioned in Lansang vs. Garcia. This Court
found that the intensification and spread of Communist insurgency imperiled the state. The events after the
suspension of the privilege of the writ confirmed the alarming extent of the danger to public safety:
Subsequent events as reported have also proven that petitioners counsel have
underestimated the threat to public safety posed by the New Peoples Army. Indeed, it appears
that, since August 21, 1971, it had in Northern Luzon six (6) encounters and staged one (1) raid, in
consequence of which seven (7) soldiers lost their lives and two (2) others were wounded, whereas
the insurgents suffered five (5) casualties; that on August 26, 1971, a well-armed group of NPA,
trained by defector Lt. Victor Corpus, attacked the very command post of TF LAWIN in Isabela,
destroying two (2) helicopters and one (1) plane, and wounding one (1) soldier; that the NPA had in
Central Luzon a total of four (4) encounters, with two (2) killed and three (3) wounded on the side of
the Government, one (1) KM-SDK leader, an unidentified dissident, and Commander Panchito,
leader of dissident group, were killed; that on August 26, 1971, there was an encounter in the Barrio
of San Pedro, Iriga City, Camarines Sur, between the PC and the NPA, in which a PC and two (2)
KM members were killed; that the current disturbances in Cotabato and the Lanao provinces have
been rendered more complex by the involvement of the CPP/NPA for, in mid-1971, a KM group
headed by Jovencio Esparagoza, contacted the Higa-onan tribes, in their settlement in Magsaysay,
Misamis Oriental, and offered them books, pamphlets and brochures of Mao Tse Tung, as well as
conducted teach-ins in the reservation; that Esparagoza was reportedly killed on September 22,
1971, in an operation of the PC in said reservation; and that there are now two (2) NPA cadres in
Mindanao.
It should, also, be noted that adherents of the CPP and its front organization are accordingly to
intelligence findings, definitely capable of preparing powerful explosives out of locally available
materials; that the bomb used in the Constitutional Convention Hall was a clay more mine, a
powerful explosive device used by the U.S. Arm believed to have been one of many pilfered from the
Subic Naval Base a few days before; that the President had received intelligence information to the
effect that there was a July-August Plan involving a wave of assassinations, kidnappings, terrorism
and miss destruction of property and that an extraordinary occurrence would signal the beginning of
said event; that the rather serious condition of peace and order in Mindanao, particularly in Cotabato
and Lanao, demanded the presence therein of forces sufficient to cope with the situation; that a
sizeable part of our armed forces discharges other functions; and that the expansion of the CPP
activities from Central Luzon to other parts of the country particularly Manila and its suburbs the
Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and Bicol Region, required that the rest of our
armed forces be spread thin over a wide area.
41
By virtue of these findings, the Court, led by Chief Justice Roberto Concepcion, unanimously upheld the suspension
of the privilege of the writ of habeas corpus. The Court said:
Considering that the President was in possession of the above data except those related to
events that happened after August 21, 1971 when the Plaza Miranda prompting, took place, the
Court is not prepared to held that the Executive had acted arbitrarily or gravely abused his discretion
when he then concluded that public safety and national security required the suspension of the
privilege of the writ, particularly if the NPA were to strike simultaneously with violent demonstrations
staged by the two hundred forty-five (245) KM chapters, all over the Philippines, with the assistance
and cooperation of the dozens of CPP front organizations, and the bombing of water mains and
conduits, as well as electric power plants and installations a possibility which, no matter how
remote, he was bound to forestall, and a danger he was under obligation to anticipate and at rest.
He had consulted his advisers and sought their views. He had reason to feel that the situation was
critical as, indeed, it was and demanded immediate action. This he took believing in good faith
that public safety required it. And, in the light of the circumstances adverted to above, he had
substantial grounds to entertain such belief."
42
The suspension of the privilege of the writ was lifted on January 7, 1972, but soon thereafter chaos engulfed the
nation again. A large area of the country was in open rebellion. The authority of the Government was frontally
challenged by a coalition of forces. It was against this backdrop of violence and anarchy that martial law was
proclaimed on September 21, 1972.
Personally I take notice of this condition, in addition to what the Court has found in cases that have come to it for
decision, and there is no cogent reason for me to say as a matter of law that the President exceeded his powers in
declaring martial law. Nor do I believe that the Solicitor Generals manifestation of May 13, 1974 to the effect that
while on the whole the military challenge to the Republic has been overcome there are still large areas of conflict
which warrant the continued imposition of law, can be satisfactorily controverted by or by any perceptive observer of
the national scene.
As I will point out in this opinion, the fact that courts are open be accepted as proof that the rebellion and which
compellingly called for the declaration of martial law, no longer imperil the public safety. Nor are the many surface
indicia adverted to by the petitioners (the increase in the number of tourists, the choice of Manila as the conferences
and of an international beauty contest) to be regarded as evidence that the threat to public safe has abated. There is
actual armed combat, attended by the somber panoply war, raging in Sulu and Cotabato, not to not mention the
region and Cagayan Valley.
43
I am hard put to say, therefore, that the Governments claim is baseless.
I am not insensitive to the plea made here in the name of individual liberty. But to paraphrase Ex parte Moyer,
44
if it
were the liberty alone of the petitioner Diokno that is. in issue we would probably resolve the doubt in his favor and grant
his application. But the Solicitor General, who must be deemed to represent the President and the Executive Department
in this case,
45
has manifested that in the Presidents judgment peace and tranquility cannot be speedily restored in the
country unless the petitioners and others like them meantime remain in military custody. For, indeed, the central matter
involved is not merely the liberty of isolated individuals, but the collective peace, tranquility and security of the entire
nation. V.
The 1935 Constitution committed to the President the determination of the public exigency or exigencies requiring
the proclamation of martial law. It provided in article VII, section 10(2) that
The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence,
46
invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or eminent
danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas
corpus, or place the Philippines or any part thereof under martial law.
47
In the 1934 Constitutional Convention it was proposed to vest the power to suspend the privilege of the writ
ofhabeas corpus in the National Assembly. The proposal, sponsored by Delegate Araneta, would give this power to
the President only in cases where the Assembly was not in session and then only with the consent of the Supreme
Court. But the majority of the delegates entertained the fear that the Government would be powerless in the face of
danger.
48
They rejected the Araneta proposal and adopted instead the provisions of the Jones Law of 1916. The framers
of the Constitution realized the need for a strong Executive, and therefore chose to retain the provisions of the former
organic acts,
49
which, adapted to the exigencies of colonial administration , naturally made the Governor General a strong
Executive.
Construing a similar provision of the Philippine Bill of 1902 which authorized the Governor General, with the
approval of the Philippine Commission, to suspend the privilege of the writ of habeas corpus "when in cases of
rebellion, insurrection, or invasion the public safety may require it," this Court held that the Governor Generals
finding as to the necessity for such action was "conclusive and final" on the judicial department.
50
This ruling was
affirmed in 1952 in Montenegro vs. Castaeda,
51
this Court stating that
the authority to decide whether the exigency has arisen requiring, the suspension belongs to the
President and his decision is final and conclusive upon the courts and upon all other persons.
It is true that in Lansang vs. Garcia
52
there is language that appears to detract from the uniform course of judicial
construction of the Commander-in-Chief Clause. But a close reading of the opinion in that case shows that in the main
there was adherence to precedents. To be sure, the Court there asserted the power to inquire into the "existence of the
factual bases [for the suspension of the privilege of the writ of habeas corpus] in order to determine the sufficiency
thereof," But this broad assertion of power is qualified by the Courts unambiguous statement that "the function of the
Court is, merely to check not to supplant the Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act." For
this reason this Court announced that the test was not whether the President acted correctly but whether he acted
arbitrarily. In fact this Court readBarcelon and Montenegro as authorizing judicial inquiry into "whether or not there really
was a rebellion, as stated in the proclamation therein contested."
Of course the judicial department can determine the existence of the conditions for the exercise of the Presidents
powers and is not bound by the recitals of his proclamation. But whether in the circumstances obtaining public
safety requires the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law is
initially for the President to decide. Considerations of commitment of the power to the executive branch of the
Government and the lack of accepted standards for dealing with incommensurable factors, suggest the wisdom of
considering the Presidents finding as to necessity persuasive upon the courts. This conclusion results from the
nature of the power vested in the President and from the evident object contemplated. For that power is intended to
enable the Government to cope with sudden emergencies and meet great occasions of state under circumstances
that may be crucial to the life of the nation.
53
The fact that courts are open and in the unobstructed discharge of their functions is pointed to as proof of the
absence of any justification for martial law. The ruling in Milligan
54
and Duncan
55
is invoked. In both cases the U.S.
Supreme Court reversed convictions by military commissions. In Milligan the Court stated that "martial law cannot arise
from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the
courts and deposes the civil administration." In Duncan a similar expression was made: "The phrase martial law ... while
intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense
of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by
military tribunals."
But Milligan and Duncan were decided on the basis of a widely disparate constitutional provision. What is more, to
the extent that they may be regarded as embodying what the petitioners call an "open court" theory, they are of
doubtful applicability in the context of present-day subversion.
Unlike the detailed provision of our Constitution, the U.S. Federal Constitution does not explicitly authorize the U.S.
President to proclaim martial law. It simply states in its article II, section 2 that "the President shall be Commander-
in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the
actual Service of the United States. ..." On the other hand, our Constitution authorizes the proclamation of martial
law in cases not only of actual invasion, insurrection or rebellion but also of "imminent danger" thereof.
It is true that in Duncan the U.S. Supreme Court dealt with a U.S. statute that in terms was similar to the Philippine
Constitution. Section 67 of the Hawaiian Organic Act provided that "[the Territorial Governor] may, in case of
invasion, or imminent danger thereof, when public safety requires it, suspend the privilege of the writ of habeas
corpus, or place the Territory, or any part thereof under martial law until communication can be had with the
President [of the United States] and his decision thereof made known." In fact the Hawaiian Organic Act, that of
Puerto Rico, and the Jones law of 1916, from which latter law, as I have earlier noted, the Commander-in-Chief
Clause of our Constitution was adopted, were part of the legislation of the U.S. Congress during the colonial period.
But again, unlike the Jones Law, the Hawaiian Organic Act also provided in its section 5 that the U.S. Federal
Constitution "shall have the same force and effect in the territory [of Hawaii] as elsewhere in the United States. For
this reason it was held in Duncan that "imminent danger" of invasion or rebellion was not a ground for authorizing
the trial of civilians by a military tribunal. Had Duncan been decided solely on the basis of section 67 of the Hawaiian
Organic Act and had the petitioners in that case been tried for offenses connected with the prosecution of the
war,
56
the prison sentences imposed by the military tribunals would in all probability had been upheld. As a matter of fact
those who argued in Duncan that the power of the Hawaiian governor to proclaim martial law comprehended not only
actual rebellion or invasion but also "imminent danger thereof" were faced with the problem of reconciling, the two parts of
the Hawaiian Organic Act. They contended that "if any paint of section 67 would otherwise be unconstitutional section 5
must be construed as extending the [U.S.] Constitution to Hawaii subject to the qualifications or limitations contained in
section 67."
57
Forsooth, if the power to proclaim martial law is at all recognized in American federal constitutional law, it is only by
implication from the necessity of self-preservation and then subject to the narrowest possible construction.
Nor is there any State Constitution in the United States, as the appended list indicates (see Appendix), which in
scope and explicitness can compare with the Commander-in-Chief Clause of our Constitution. The Alaska
Constitution, for example, authorizes the governor to proclaim martial law when the public safety requires it in case
of rebellion or actual or imminent invasion. But even then it also provides that martial law shall not last longer than
twenty days unless approved by a majority of the legislature in joint session. On the other hand, the present
Constitution of Hawaii does not grant to the State governor the power to suspend the writ of habeas corpus or to
proclaim martial law as did its Organic Act before its admission as a State to the American Union.
An uncritical reading of Milligan and Duncan is likely to overlook these crucial differences in textual concepts
between the Philippine Constitution, on the one hand, and the Federal and State Constitutions of the United States,
on the other. In our case then the inclusion of the "imminent danger" phrase as a ground for the suspension of the
privilege of the writ of habeas corpus and for the proclamation of martial law was a matter of deliberate choice and
renders the language of Milligan ("martial law cannot arise from a threatened invasion") inapposite and therefore
inapplicable.
The Philippine Bill of 1902 provided in its section 2, paragraph 7
that the privilege of the writ of habeas corpus shall not be suspended unless when in cases of
rebellion, insurrection, or invasion the public safety may require it, in either of which events the same
may be suspended by the President, or by the Governor General with the approval of the Philippine
Commission, wherever during such period the necessity for such suspension shall exist.
The Jones Law of 1916 substantially reenacted this provision. Thus section 3, paragraph 7 thereof provided:
That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of
rebellion, insurrection, or invasion the public safety may require it, in either of which events the same
may be suspended by the President or by the Governor General, wherever during such period the
necessity for such suspension shall exist.
In addition, the Jones Law provided in its section 21 that
... [The Governor General] may, in case of rebellion or invasion, or imminent danger thereof, when
the public safety requires it, suspend the privileges of the writ of habeas corpus or place the Islands,
or any part thereof, under martial law: Provided That whenever the Governor General shall exercise
this authority, he shall at once notify the President of the United States thereof, together with the
attending facts and circumstances, and the President shall have power to modify or vacate the
action of the Governor General.
Note that with respect to the suspension of the privilege of the writ of habeas corpus, section 21 mentions, as
ground therefor, "imminent danger" of invasion or rebellion. When the Constitution was drafted in 1934, its framers,
as I have already noted, decided to adopt these provisions of the Jones Law. What was section 3, paragraph 7, in
the Jones Law became section 1(14) of article III (Bill of Rights) of the Constitution; and what was section 21
became article VII, section 10(2) (Commander-in-Chief Clause). Thus, the Bill of Rights provision reads:
The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion,
insurrection, or rebellion, when the public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for such suspension shall exist.
On the other hand, the Commander-in-Chief Clause states:
The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence,
invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger
thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas
corpus, or place the Philippines or any part thereof under martial law.
The attention of the 1934 Convention was drawn to the apparent inconsistency between the Bill of Rights provision
and the Commander-in-Chief Clause. Some delegates tried to harmonize the two provisions by inserting the phrase
"imminent danger thereof" in the Bill of Rights provision, but on reconsideration the Convention deleted the phrase
from the draft of the Bill of Rights provision, at the same time retaining it in the Commander-in Chief Clause.
When this apparent inconsistency was raised in a suit
58
questioning the validity of President Quirino suspension of the
privilege of the writ of habeas corpus, this Court sustained the Presidents power to suspend the privilege of the writ even
on the ground of imminent danger of invasion, insurrection or rebellion. It held that as the Commander-in-Chief Clause
was last in the order of time and local position it should be deemed controlling. This rationalization has evoked the
criticism that the Constitution was approved as a whole and not in parts, but in result the decision in that case is certainly
consistent with the conception of a strong Executive to which the 1934 Constitutional Convention was committed.
The 1973 Constitution likewise authorizes the suspension of the privilege of the writ of habeas corpus on the ground
of imminent danger of invasion, insurrection and rebellion.
The so-called "open court" theory does not apply to the Philippine situation because our 1935 and 1973
Constitutions expressly authorize the declaration of martial law even where the danger to public safety arises merely
from the imminence of invasion, insurrection, or rebellion. Moreover, the theory is too simplistic for our day,what with
the universally recognized insidious nature of Communist subversion and its covert operations.
Indeed the theory has been dismissed as unrealistic by perceptive students of Presidential powers.
Charles Fairman says:
These measures are unprecedented but so is the danger that called them into being. Of course we
are not without law, even in time of crisis. Yet the cases to which one is cited in the digests disclose
such confusion of doctrine as to perplex a lawyer who suddenly tries to find his bearings. Hasty
recollection of Ex parte Milligan recalls the dictum that Martial rule cannot arise from a threatened
invasion. The necessity must be actual and present; the invasion real, such as effectually closes the
courts and deposes the civil administration. Not even the aerial attack upon Pearl Harbor closed the
courts or of its own force deposed the civil administration; yet it would be the common understanding
of men that those agencies which are charged with the national defense surely must have authority
to take on the spot some measures which in normal times would be ultra vires. And whilst college
sophomores are taught that the case stands as a constitutional landmark, the hard fact is that of late
governors have frequently declared martial law and war and have been judicially sustained in their
measures. Undoubtedly, many of these cases involving the suspension of strikers went much too
far. But just as certainly so it will be argued here the doctrine of the majority in Ex
parte Milligandoes not go far enough to meet the conditions of modern war.
59
Clinton Rossiter writes:
It is simply not true that martial law cannot arise from a threatened invasion, or that martial rule can
never exist where the courts are open. These statements do not present an accurate definition of
the allowable limits of the martial powers of the President and Congress in the face of alien threats
of internal disorder. Nor was Davis dictum on the specific power of Congress in this matter any more
accurate. And, however eloquent quotable his words on the untouchability of the Constitution in time
of actual crisis, and did not then, express the realities of American constitutional law.
60
William Winthrop makes these thoughtful observations:
It has been declared by the Supreme Court in Ex parte Milligan that martial law is confined to the
locality of actual war, and also that it can never exist when the courts are open and in the proper
and unobstructed exercise of their jurisdiction. But this ruling was made by a bare majority five
of the court, at a time of great political excitement and the opinion of the four other members, as
delivered by the Chief Justice, was to the effect that martial law is not necessarily limited to time of
war, but may be exercised at other periods of public danger, and that the fact that the civil courts
are open is not controlling against such exercise, since they might be open and undisturbed in the
execution of their functions and yet wholly incompetent to avert threatened danger or to punish with
adequate promptitude and certainty the guilty. It is the opinion of the author that the of the view of
the minority of the court is the sounder and more reasonable one, and that the dictum of the majority
was influenced by a confusing of martial law proper with that military government which exists only
at a time and on the theater of war, and which was clearly distinguished from martial law by the
Chief Justice in the dissenting opinion the first complete judicial definition of the
subject.
61
(emphasis supplied)
In Queen vs. Bekker (on the occasion of the Boer War) Justice Maasdorp categorically affirmed that "the existence
of civil courts is no proof that martial law has become unnecessary.
62
VI
Given then the validity of the proclamation of martial law, the arrest and detention of those reasonably believed to be
engaged in the disorder or in formenting it is well nigh beyond questioning. Negate the power to make such arrest
and detention, and martial law would be "mere parade, and rather encourage attack than repel it."
63
Thus, in Moyer
vs. Peabody,
64
the Court sustained the authority of a State governor to hold temporarily in custody one whom he believed
to be engaged in formenting trouble, and denied recovery against the governor for the imprisonment. It was said that, as
the governor "may kill persons who resist," he may use the milder measure of seizing the bodies of those whom he
considers in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to
prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are
needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he
is out of office on the ground that he had no reasonable ground for his belief."
It is true that in Sterling vs. Contantin
65
the same Court set aside the action of a State governor taken under martial law.
But the decision in that case rested on the ground that the action set aside had no direct relation to the quelling of the
uprising. There the governor of Texas issued a proclamation stating that certain counties were in a state of insurrection
and declaring martial law in that territory. The proclamation recited that there was an organized group of oil and gas
producers in insurrection against conservation laws of the State and that this condition had brought such a state of public
feeling that if the State government could not protect the publics interest they would take the law into their own hands.
The proclamation further recited that it was necessary that the Railroad Commission be given time to make orders
regarding oil production. When the Commission issued an order limiting oil production, the complainants brought suit iii
the District Court which issued restraining orders, whereupon Governor Sterling ordered General Wolters of the Texas
National Guards to enforce a limit on oil production. It was this order of the State governor that the District Court enjoined.
On appeal the U.S. Supreme Court affirmed. After assuming that the governor had the power to declare martial law, the
Court held that the order restricting oil production was not justified by the exigencies of the situation.
... Fundamentally, the question here is not the power of the governor to proclaim that a state of
insurrection, or tumult or riot, or breach of the peace exists, and that it is necessary to call military
force to the aid of the civil power. Nor does the question relate to the quelling of disturbance and the
overcoming of unlawful resistance to civil authority. The question before us is simply with respect to
the Governors attempt to regulate by executive order the lawful use of complainants properties in
the production of oil. Instead of affording them protection in the exercise of their rights as determined
by the courts, he sought, by his executive orders, to make that exercise impossible.
On the other hand, what is involved here is the validity of the detention order under which the petitioners were
ordered arrested. Such order is, as I have already stated, a valid incident of martial law. With respect to such
question Constantin held that "measures, conceived in good faith, in the face of the emergency and directly related
to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the
exercise of his authority to maintain peace."
In the cases at bar, the respondents have justified the arrest and detention of the petitioners on the ground of
reasonable belief in their complicity in the rebellion and insurrection. Except Diokno and Aquino, all the petitioners
have been released from custody, although subject to defined restrictions regarding personal movement and
expression of views. As the danger to public safety has not abated, I cannot say that the continued detention of
Diokno and Aquino and the restrictions on the personal freedoms of the other petitioners are arbitrary, just as I am
not prepared to say that the continued imposition of martial rule is unjustified.
As the Colorado Supreme Court stated in denying the writ of habeas corpus in Moyer:
66
His arrest and detention in such circumstances are merely to prevent him from taking part or aiding
in a continuation of the conditions which the governor, in the discharge of his official duties and in
the exercise of the authority conferred by law, is endeavoring to suppress.
VII
While courts may inquire into or take judicial notice of the existence of conditions claimed to justify the exercise of
the power to declare martial law,
67
the determination of the necessity for the exercise of such power is within the
periphery of the constitutional domain of the President; and as long as the measures he takes are reasonably related to
the occasion involved, interference by the courts is officious.
I am confirmed in this construction of Presidential powers by the consensus of the 1971 Constitutional Convention to
strengthen the concept of a strong Executive and by the confirmation of the validity of acts taken or done after the
proclamation of martial law in this country. The 1973 Constitution expressly authorizes the suspension of the
privilege of the writ of habeas corpus as well as the imposition of martial law not only on the occasion of actual
invasion, insurrection or rebellion, but also where the danger thereof is imminent. 68 Acrimonious discussion on this
matter has thus become pointless and should therefore cease.
The new Constitution as well provides that
All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and
effective even after lifting of martial law or the ratification of this constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of
the incumbent President, or unless expressly aid explicitly modified or repealed by the regular
National Assembly.
69
The effectivity of the new Constitution is now beyond all manner of debate in view of the Courts decision in the
Ratification Cases 70 as well as the demonstrated acquiescence therein by the Filipino people in the historic July
1973 national referendum.
VIII
It is thus evident that suspension of the privilege of the writ of habeas corpus is unavoidable subsumed in a
declaration of martial law, since one basic objective of martial rule is to neutralize effectively by arrest and
continued detention (and possibly trial at the proper and opportune time) those who are reasonably believed to
be in complicity or are particeps criminis in the insurrection or rebellion. That this is so and should be so is
ineluctable to deny this postulate is to negate the very fundamental of martial law: the preservation of society and
the survival of the state. To recognize the imperativeness and reality of martial law and at the same time dissipate
its efficacy by withdrawing from its ambit the suspension of the privilege of the writ of habeas corpus is a proposition
I regard as fatuous and therefore repudiate.
Invasion and insurrection, both of them conditions of violence, are the factual prerequisites of martial
law ... The rights of person and property present no obstruction to the authorities acting under such a
regime, if the acts which encroach upon them are necessary to the preservation or restoration of
public order and safety. Princeps et res publica ex justa causa possunt rem meam auferre. All the
procedures which are recognized adjuncts of executive crisis government ... are open to the persons
who bear official authority under martial law. The government may wield arbitrary powers of police to
allay disorder, arrest and detain without trial all citizens taking part in this disorder and even punish
them (in other words, suspend the [privilege of the] writ of habeas corpus), institute searches and
seizures without warrant, forbid public assemblies, set curfew hours, suppress all freedom of
expression, institute courts martial for the summary trial of crimes perpetrated in the course of this
regime and calculated to defeat its purposes ...
71
(emphasis supplied)
The point here is whether martial law is simply a shorthand expression denoting the suspension of
the writ, or whether martial law involves not only the suspension of the writ but much more besides.
... The latter view is probably sounder because martial law certainly in the present state of its
development, is not at all dependent on a suspension of the writ of habeas corpus. ... Where there
has been violence or disorder in fact, continued detention of offenders by the military is so far proper
as to result in a denial by the courts of writs releasing those detained. ...
72
IX.
Although the respondents, in their returns to the writs and in their answers to the several petitions, have insisted on
a disclaimer of the jurisdiction of this Court, on the basis of General Orders Nos. 3 and 3-A,
73
their subsequent
manifestations urging decision of these cases amount to an abandonment of this defense. In point of fact President Marco
has written, in unmistakable phrase, that "Our martial law is unique in that it is based on the supremacy of the civilian
authority over the military and on complete submission of the decision of the Supreme Court. ... For who is the dictator
who would submit himself to a higher body like the Supreme Court on the question of the constitutionality or validity of his
actions?"
74
Construing this avowal of the President and the repeated urgings of the respondents in the light of the
abovequoted provision of the 1973 Constitution (Art. XVII, sec. 3(2)), it is my submission that General Orders Nos. 3 and
3-A must be deemed revoked in so far as they tended to oust the judiciary of jurisdiction over cases involving the
constitutionality of proclamations, decrees, orders or acts issued or done by the President.
X
In sum and substance, I firmly adhere to these views: (1) that the proclamation of martial law in September 1972 by
the President was well within the aegis of the 1935 Constitution; (2) that because the Communist rebellion had not
abated and instead the evil ferment of subversion had proliferated throughout the archipelago and in many places
had exploded into the roar of armed and searing conflict with all the sophisticated panoply of war, the imposition of
martial law was an "imperative of national survival;" (3) that the arrest and detention of persons who were
"participants or gave aid and comfort in the conspiracy to seize political and state power and to take over the
government by force," were not unconstitutional nor arbitrary; (4) that subsumed in the declaration of martial law is
the suspension of the privilege of the writ of habeas corpus; (5) that the fact that the regular courts of justice are
open cannot be accepted as proof that the rebellion. and insurrection, which compellingly called for the declaration
of martial law, no longer imperil the public safety; (6) that actual armed combat has been and still is raging in
Cotabato, Lanao, Sulu and Zamboanga, not to mention the Bicol Region and Cagayan Valley, and nationwide
Communist subversion continues unabated; (7) that the host of doubts that had plagued this Court with respect to
the validity of the ratification and consequent effectivity of the 1973 Constitution has been completely dispelled by
every rational evaluation of the national referendum of July 1973, at which the people conclusively albeit quietly,
demonstrated nationwide acquiescence in. the new Constitution; and (8) that the issue of the validity and
constitutionality of the arrest and detention of all the petitioners and of the restrictions imposed upon those who were
subsequently freed, is now foreclosed by the transitory provision of the 1973 Constitution (Art, XVII. Sec. 3(2)) which
efficaciously validates all acts made, done or taken by the President, or by others upon his instructions, under the
regime of martial law, prior to the ratification of the said Constitution.
XI
It is not a mere surreal suspicion on the part of the petitioner Diokno that the incumbent members of this highest
Tribunal of the land have removed themselves from a level of conscience to pass judgment upon his petition
forhabeas corpus or afford him relief from his predicament. He has actually articulated it as a formal indictment. I
venture to say that his obsessional preoccupation on the ability of this Court to reach a fair judgment in relation to
him has been, in no small measure, engendered by his melancholy and bitter and even perhaps traumatic detention.
And even as he makes this serious indictment, he at the same time would withdraw his petition forhabeas corpus
hoping thereby to achieve martyrdom, albeit dubious and amorphous. As a commentary on this indictment, I here
that for my part and I am persuaded that all the other members of this Court are situated similarly I avow fealt
to the full intendment and meaning of the oath I have taken as a judicial magistrate. Utilizing the modest
endowments that God has granted me, I have endeavored in the past eighteen years of my judicial career and in
the future will always endeavor to discharge faithfully the responsibilities appurtenant to my high office, never
fearing, wavering or hesitating to reach judgments that accord with my conscience.
ACCORDINGLY, I vote to dismiss all the petitions.
APPENDIX to Separate Opinion of
Justice Fred Ruiz Castro
STATE CONSTITUTIONAL PROVISIONS
REGARDING MARTIAL LAW
ALASKA CONST., art. III, sec. 20:
Sec. 20. Martial Law. The governor may proclaim martial law when the public safety requires it in case of rebellion
or actual or imminent invasion. Martial law shall not continue for longer than twenty days without the approval of a
majority of the members of the legislature in joint session.
MAINE CONST., art. I, sec. 14:
Sec. 14. Corporal punishment under military law. No person shall be subject to corporal punishment under military
law, except such as are employed in the army or navy, or in the militia when in actual service in time of war or public
danger.
MARYLAND CONST., art. 32:
Art. 32. Martial Law. That no person except regular soldiers, marines, and mariners in the service of this State, or
militia, when in actual service, ought in any case, to be subject to, or punishable by Martial Law.
MASSACHUSETTS CONST., art. XXVIII:
Art. XXVIII. Citizens exempt from law martial. No person can in any case be subjected to law martial, or to any
penalties or pains, by virtue of that law, except those employed in the army or navy, and except the militia in actual
service, but by authority of the legislature.
NEW HAMPSHIRE, Pt II, arts. 34 and 51:
Art. 34th. Martial law limited. No person can, in any case, be subjected to law martial, or to any pains or penalties by
virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by
authority of the legislature.
Art. 51st. Powers and duties of governor as commander-in-chief; limitation. The governor of this state for the time
being. shall be commander-in-chief of the army and navy, and all the military forces of the state by sea and land;
and shall have full power by himself, or by any chief commander, or other officer, or officers, from time to time, to
train, instruct, exercise and govern the militia and navy; and for the special defense and safety of this state, to
assemble in martial array, and put in war-like posture, the inhabitants thereof, and to lead and conduct them, and
with them to encounter, repulse, repel resist and pursue by force of arms, as well by sea as by land, within and
without the limits of this state: and also kill, slay. destroy, if necessary, and conquer by all fitting ways, enterprise
and means, all and every such person and persons as shall, at any time hereafter, in a hostile manner, attempt or
enterprise the destruction, invasion, detriment or annoyance of this state; and to use and exercise over the army
and navy, and over the militia in actual service, the law martial in time of war invasion, and also in rebellion,
declared by the legislature to exist, as occasion shall necessarily require: And surprise, by all ways and means
whatsoever, all and every such person or persons, with their ships, arms, ammunition, and other goods, as shall in a
hostile manner invade, or attempt the invading, conquering or annoying this state; and in fine the governor hereby is
entrusted with all other powers incident to the office of the captain-general and commander-in-chief, and admiral, to
be exercised agreeably to the rules and regulations of the constitution, and the laws of the land; provided, that the
Governor shall not, at any time hereafter, by virtue of any power by this constitution granted, or hereafter to be
granted to him by the legislature, transport any of the inhabitants of this state, or oblige them to march out of the
limits of the same, without their free and voluntary consent, or the consent of the general court, nor grant
commissions for exercising the law martial in any case, without the advise and the consent of the council.
RHODE ISLAND CONST., art. I, sec. 18: .
Sec. 18. Military subordinate; martial law. The military shall be held in strict subordination to the civil authority. And
the law martial shall be used and exercised in such cases only as occasion shall necessarily require.
TENNESSEE CONST., art. 1, sec. 25:
Sec. 25. Punishment under martial and military law. That no citizen of this State, except such as are employed in the
army of the United States, or militia in actual service, shall be subjected to punishment under the martial or military
law. That martial law, in the sense of the unrestricted power of military officers, or others, to dispose of the persons,
liberties or property of the citizen, is inconsistent with the principles of free government, and is not confided to any
department of the government of this State.
VERMONT CONST., ch. 1, art. 17:
Art. 17th. Martial law restricted. That no person in this state can in any case be subjected to law martial, or to any
penalties or pains by virtue of that law except those employed in the army and the militia in actual service.
WEST VIRGINIA, art, III, sec. 12:
Art. III, sec. 12. Military subordinate to civil power. Standing armies, in time of peace, should be avoided as
dangerous to liberty. The military shall be subordinate to the civil power; and no citizen, unless engaged in the
military service of the State, shall be tried or punished by any military court, for any offense that is cognizable by the
civil courts of the State. No soldier shall, in time of peace, be quartered in any house, without the consent of the
owner, nor in time of war, except in the manner to be prescribed by law. .
FERNANDO, J ., concurring and dissenting:
The issue involved in these habeas corpus petitions is the pre-eminent problem of the times the primacy to be
accorded the claims of liberty during periods of crisis. There is much that is novel in what confronts the Court. A
traditional orientation may not suffice. The approach taken cannot be characterized by rigidity and inflexibility. There
is room, plenty of it, for novelty and innovation. Doctrines deeply rooted in the past, that have stood the test of time
and circumstance, must be made adaptable to present needs and, hopefully, serviceable to an unknown future, the
events of which, to recall Story, are locked tip in the inscrutable designs of a merciful Providence. It is essential then
that in the consideration of the petitions before us there be objectivity, calmness, and understanding. The deeper the
disturbance in the atmosphere of security, the more compelling is the need for tranquility of mind, if reason is to
prevail. No legal carrier is to be interposed to thwart the efforts of the Executive to restore normalcy. He is not to be
denied the power to take that for him may be necessary measures to meet emergency conditions. So the realities of
the situation dictate. There should be on the part of the judiciary then, sensitivity to the social forces at work,
creating conditions of grave unrest and turbulence and threatening the very stability not to say existence, of the
political order. It is in that setting that the crucial issue posed by these petitions is to be appraised. It may be that this
clash between the primacy of liberty and the legitimate defense of authority is not susceptible of an definite, clear-
cut solution. Nonetheless, an attempt has to be made. With all due recognition of the merit apparent in the
exhaustive, scholarly and eloquent dissertations of Justice Barredo and my other brethren as well as the ease and
lucidity with which the Chief Justice clarified the complex issues and the views of members of the Court, I would like
to give a brief expression to my thoughts to render clear the points on which I find myself, with regret, unable to be
of the same persuasion.
I concur in the dismissal of the habeas corpus petition of Benigno S. Aquino, Jr. solely on the ground that charges
had been filed and dissent in part in the dismissal of the petition of Francisco Rodrigo and others, * who joined him in his
plea for the removal of the conditions on their release, on the view that as far as freedom of travel is concerned, it should be, on principle, left unrestricted. As
originally prepared, this opinion likewise explained his dissent in the denial of the motion to withdraw in the petition filed on behalf of Jose W. Diokno, a matter now
moot and academic.
1. We have to pass on habeas corpus petitions. The great writ of liberty is involved. Rightfully, it is latitudinarian in
scope. It is wide-ranging and all-embracing in its reach. It can dig deep into the facts to assure that there be no
toleration of illegal restraint. Detention must be for a cause recognized by law. The writ imposes on the judiciary the
grave responsibility of ascertaining whether a deprivation of physical freedom is warranted. The party who is
keeping a person in custody has to produce him in court as soon as possible. What is more, he must justify the
action taken. Only if it can be demonstrated that there has been no violation of ones right to liberty will he be
absolved from responsibility. Failing that, the confinement must thereby cease. Nor does it suffice that there be a
court process, order, or decision on which it is made to rest. If there be a showing of a violation of constitutional
rights, the jurisdiction of the tribunal issuing it is ousted. Moreover, even if there be a valid sentence, it cannot, even
for a moment, be extended beyond the period provided for by law. When that time comes, he is entitled to be
released. It is in that sense then, as so well put by Holmes, that this great writ "is the usual remedy for unlawful
imprisonment."
1
It does afford to borrow from the language of Birkenhead "a swift and imperative remedy in all cases of
illegal restraint or confinement."
2
Not that there is need for actual incarceration. A custody for which there is no support in
law suffices for its invocation. The party proceeded against is usually a public official, the run-of-the-mill petitions often
coming from individuals who for one reason or another have run afoul of the penal laws. Confinement could likewise come
about because of contempt citations,
3
whether from the judiciary or from the legislature. It could also be due to statutory
commands, whether addressed to cultural minorities
4
or to persons diseased.
5
Then, too, this proceeding could be
availed of by citizens subjected to military discipline
6
as well as aliens seeking entry into or to be deported from the
country.
7
Even those outside the government service may be made to account for their action as in the case of wives
restrained by their husbands or children withheld from the proper parent or guardian.
8
It is thus apparent that any
deviation from the legal norms calls for the restoration of freedom. It cannot be otherwise. It would be sheer mockery of all
that such a legal order stands for, if any persons right to live and work where he is minded to, to move about freely, and to
be rid of any unwarranted fears that he would just be picked up and detained, is not accorded full respect. The
significance of the writ then for a regime of liberty cannot be overemphasized.
9
2. Nor does the fact that, at the time of the filing of these petitions martial law had been declared, call for a different
conclusion. There is of course imparted to the matter a higher degree of complexity. For it cannot be gainsaid that
the reasonable assumption is that the President exercised such an awesome power, one granted admittedly to cope
with an emergency or crisis situation, because in his judgment the situation as thus revealed to him left him with no
choice. What the President did attested to an executive determination of the existence of the conditions that called
for such a move. There was, in his opinion, an insurrection or rebellion of such magnitude that public safety did
require placing the country under martial law. That decision was his to make it; it is not for the judiciary. The
assessment thus made, for all the sympathetic consideration it is entitled to, is not, however, impressed with finality.
This Court has a limited sphere of authority. That, for me, is the teaching of Lansang.
10
The judicial role is difficult, but
it is unavoidable. The writ of liberty has been invoked by petitioners. They must be heard, and we must rule on their
petitions.
3. This Court has to act then. The liberty enshrined in the Constitution, for the protection of which habeas corpusis
the appropriate remedy, imposes that obligation. Its task is clear. It must be performed. That is a trust to which it
cannot be recreant Whenever the grievance complained of is deprivation of liberty, it is its responsibility to inquire
into the matter and to render the decision appropriate under the circumstances. Precisely, a habeas corpuspetition
calls for that response. For the significance of liberty in a constitutional regime cannot be sufficiently stressed.
Witness these words from the then Justice, later Chief Justice, Concepcion: "Furthermore, individual freedom is too
basic, to be denied upon mere general principles and abstract consideration of public safety. Indeed, the
preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its
enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted
[twelve other] paragraphs [thereof] to the protection of several aspect of freedom."
11
A similar sentiment was given
expression by the then Justice, later Chief Justice, Bengzon: "Let the rebels have no reason to apprehend that their
comrades now under custody are being railroaded into Muntinlupa without benefit of those fundamental privileges which
the experience of the ages has deemed essential for the protection of all persons accused of crime before the tribunals of
justice. Give them the assurance that the judiciary, ever mindful of its sacred mission will not, thru faulty cogitation or
misplaced devotion, uphold any doubtful claims of Governmental power in diminution of individual rights, but will always
cling to the principle uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the
Constitution, the Courts will favor personal liberty ...."
12
The pertinence of the above excerpt becomes quite manifest
when it is recalled that its utterance was in connection with a certiorari proceeding where the precise point at issue was
whether or not the right to bail could be availed of when the privilege of the writ of habeas corpus was suspended. There
was no decisive outcome, although there were five votes in favor of an affirmative answer to only four against.
13
Such
pronouncements in cases arising under the 1935 Constitution should occasion. no surprise. They merely underscore what
was so vigorously emphasized by the then Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, in
his sponsorship address of the draft provisions. Thus: "The history of the world is the history of man and his ardous
struggle for liberty. ... It is the history of those brave and able souls who, in the ages that are past, have labored, fought
and bled that the government of the lash that symbol of slavery and despotism - might endure no more. It is the history
of those great self-sacrificing men who lived and suffered in an age of cruelty, pain and desolation so that every man
might stand, under the protection of great rights and privileges, the equal of every other man.
14
So should it be under the
present Constitution. No less a person than President Marcos during the early months of the 1971 Constitutional
Convention categorically affirmed in his Todays Revolution: Democracy: "Without freedom, the whole concept of
democracy falls apart."
15
Such a view has support in history. A statement from Dr. Rizal has a contemporary ring: "Give
liberties, so that no one may have a right to conspire."
16
Mabini listed as an accomplishment of the ill-fated revolution
against the Americans the manifestation of "our love of freedom guaranteeing to each citizen the exercise of certain rights
which make our communal life less constricted, ...."
17
4. Equally so, the decisive issue is one of liberty not only because of the nature of the petitions but also because
that is the mandate of the Constitution. That is its philosophy. It is a regime of liberty to which our people are so
deeply and firmly committed.
18
The fate of the individual petitioners hangs in the balance. That is of great concern. What
is at stake however, is more than that much more. There is a paramount public interest involved. The momentous
question is how far in times of stress fidelity can be manifested to the claims of liberty. So it is ordained by the
Constitution, and it is the highest law. It must be obeyed. Nor does it make a crucial difference, to my mind, that martial
law exists. It may call for a more cautious approach. The simplicity of constitutional fundamentalism may not suffice for the
complex problems of the day. Still the duty remains to assure that the supremacy of the Constitution is upheld. Whether in
good times or bad, it must be accorded the utmost respect and deference. That is what constitutionalism connotes. It is its
distinctive characteristic. Greater restraints may of course be imposed. Detention, to cite the obvious example, is not ruled
out under martial law, but even the very proclamation thereof is dependent on public safety making it imperative. The
powers, rather expansive, perhaps at times even latitudinarian, allowable the administration under its aegis, with the
consequent diminution of the sphere of liberty, are justified only under the assumption that thereby the beleaguered state
is in a better position to protect, defend and preserve itself. They are hardly impressed with the element of permanence.
They cannot endure longer than the emergency that called for the executive having to make use of this extraordinary
prerogative. When it is a thing of the past, martial law must be at an end. It has no more reason for being. If its
proclamation is open to objection, or its continuance no longer warranted, there is all the more reason, to follow Laski, to
respect the traditional limitation of legal authority that freedom demands.
19
With these habeas corpus petitions precisely
rendering peremptory action by this Court, there is the opportunity for the assessment of liberty considered in a concrete
social context. With full appreciation then of the complexities of this era of turmoil and disquiet, it can hopefully contribute
to the delineation of constitutional boundaries. It may even be able to demonstrate that law can be timeless and yet timely.
5. There are relevant questions that still remain to be answered. Does not the proclamation of martial law carry with
it the suspension of the privilege of the writ of habeas corpus? If so, should not the principle above enunciated be
subjected to further refinement? I am not too certain that the first query. necessarily calls for an affirmative answer.
Preventive detention is of course allowable. Individuals who are linked with invasion or rebellion may pose a danger
to the public be safety. There is nothing inherently unreasonable in their being confined. Moreover, where it is the
President himself, as in the case of these petitioners, who personally directed that they be taken in, it is not easy to
impute arbitrariness. It may happen though that officers of lesser stature not impressed with the high sense of
responsibility would utilize the situation to cause the apprehension of persons without sufficient justification.
Certainly it would be, to my mind, to sanction oppressive acts if the validity of such detention cannot be inquired into
through habeas corpus petitions. It is more than just desirable therefore that if such be the intent, there be a specific
decree concerning the suspension of the privilege of the writ of habeas corpus. Even then, however, such
proclamation could be challenged. If vitiated by constitutional infirmity, the release may be ordered. Even if it were
otherwise, the applicant may not be among those as to whom the privilege of the writ has been suspended. It is
pertinent to note in this connection that Proclamation No. 1081 specifically states "that all persons presently
detained as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and
all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in
connection therewith, for crimes against national security and the law of nations, crime against the fundamental laws
of the State, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of
names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated
in Orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree,
order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention
until otherwise ordered released by me or by duly designated representative."
20
The implication appears at unless the
individual detained is included among those to whom any of the above crime or offense may be imputed, he is entitled to
judicial protection. Lastly, the question of whether or not there is warrant for the view that martial law is at an end may be
deemed proper not only in the light of radically altered conditions but also because of certain executive acts clearly
incompatible with its continued existence. Under such circumstances, an element of a justiciable controversy may be
discerned.
6. That brings me to the political question doctrine. Its accepted signification is that where the matter involved is left
to a decision by the people acting in their sovereign capacity or to the sole determination by either or both the
legislative or executive branch of the government, it is beyond judicial cognizance.
21
Thus it was that in suits where
the party proceeded against was either the President or Congress, or any of its branches for that matter, the courts
refused to act.
22
Unless such be the case, the action taken by any or both the political branches whether in the form of a
legislative act or an executive order could be tested in court. Where private rights are affected, the judiciary has the duty
to look into its validity. There is this further implication of the doctrine. A showing that plenary power is granted either
department of government may not be an obstacle to judicial inquiry. Its improvident exercise or the abuse thereof may
give rise to a justiciable controversy.
23
What is more, a constitutional grant of authority is not usually
unrestricted.
24
Limitations are provided for as to what may be done and how it is to he accomplished. Necessarily then, it
becomes the responsibility of the courts to ascertain whether the two coordinate branches have adhered to the mandate
of the fundamental law. The question thus posed is judicial rather than political.
7. Reference at this point to the epochal opinion in the aforecited Lansang v. Garcia decision, where the validity of
the suspension of the privilege of the writ of habeas corpus was sustained by this Court, is not amiss. For in both in
the 1935 and in the present Constitutions, the power to declare martial law is embraced in the same provision with
the grant of authority to suspend the privilege of the writ of habeas corpus, with the same limits to be observed in
the exercise thereof.
25
It would follow, therefore, that a similar approach commends itself on the question of whether or
not the finding made by the President in Proclamation No. 1081 as to the existence of "rebellion and armed action
undertaken by these lawless elements of the communist and other armed aggrupations organized to overthrow the
Republic of the Philippines by armed violence and force [impressed with the] magnitude of an actual state of war against
[the] people and the Republic ..."
26
is open to judicial inquiry. Reference to the opinion of Chief Justice Concepcion would
prove illuminating: "Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority
conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional.
The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the
former in the negative, evidently to stress its importance, by providing that (t)he privilege of the writ of habeas
corpus shall not be suspended. .... It is only by way of exception that it permits the suspension of the privilege in cases of
invasion, insurrection, or rebellion or, under Art. VII of the Constitution, "imminent danger thereof" when the public
safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such
suspension shall exist. Far from being full and plenary, the authority to suspend the privilege of the writ is thus
circumscribed, confined and restricted not only by the prescribed setting or the conditions essential to its existence, but
also as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or
conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist.
And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence
thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit
constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to
engage in such a wasteful exercise in futility."
27
Such a view was fortified by the high estate accorded individual freedom
as made clear in the succeeding paragraph of his opinion: "Much less may the assumption be indulged in when we bear
in mind that our political system is essentially democratic and republican in character and that the suspension of the
privilege affects the most fundamental element of that system, namely, individual freedom. Indeed, such freedom includes
and connotes, as well as demands, the right of every single member of our citizenry to freely discuss and dissent from, as
well as criticize and denounce, the views, the policies and the practices of the government and the party in power that he
deems unwise, improper or inimical to the commonwealth, regardless of whether his own opinion is objectively correct or
not. The untrammelled enjoyment and exercise of such right which, under certain conditions, may be a civic duty of the
highest order is vital to the democratic system and essential to its successful operation and wholesome growth and
development."
28
The writer wrote a concurring and dissenting opinion. He was fully in agreement with the rest of his brethren as to
the lack of conclusiveness attached to the presidential determination. Thus: "The doctrine announced inMontenegro
v. Castaeda that such a question is political has thus been laid to rest. It is about time too. It owed its existence to
the compulsion exerted by Barcelon v. Baker, a 1905 decision. This Court was partly misled by an undue reliance in
the latter case on what is considered to be authoritative pronouncement from such illustrious American jurists as
Marshall, Story, and Taney. That is to misread what was said by them. This is most evident in the case of Chief
Justice Marshall, whose epochal Marbury v. Madison was cited. Why that was so is difficult to understand. For it
speaks to the contrary. It was by virtue of this decision that the function of judicial review owes its origin
notwithstanding the absence of any explicit provision in the American Constitution empowering the courts to do so.
Thus: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the
rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the
courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the
constitution apply to a particular case, so that the court must either decide that case conformably to the law
disregarding the constitution; or conformably to the constitution, disregarding the law, the court must determine
which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are
to regard the constitution, and the constitution is superior to any ordinary act of legislature, the constitution, and not
such ordinary act, must govern the case to which they both apply."
29
8. To refer to Lansang anew, this Court sustained the presidential proclamation suspending the privilege of the writ
of habeas corpus as there was no showing of arbitrariness in the exercise of a prerogative belonging to the
executive, the judiciary merely acting as a check on the exercise of such authority. So Chief Justice Concepcion
made clear in this portion of his opinion: "Article VII of the Constitution vests in the Executive power to suspend the
privilege of the writ of habeas c under specified conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and
balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he
acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so
acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme. In the exercise
of such authority, the function of the Court is merely to check not to supplant the Executive, or toascertain merely
whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. To be sure, the power of the Court to determine the validity of the contested
proclamation is far from being identical to, or even comparable with, its power over ordinary civil or criminal cases
elevated thereto by ordinary appeal from inferior courts, in which cases the appellate court has all of the powers of
the court of origin."
30
The test then to determine whether the presidential action should be nullified according to the
Supreme Court is that of arbitrariness. Absent such a showing, there is no justification for annulling the presidential
proclamation.
On this point, the writer, in a separate opinion, had this to say: "With such presidential determination of the
existence of the conditions required by the Constitution to justify a suspension of the privilege of the writ no longer
conclusive on the other branches, this Court may thus legitimately inquire into its validity. The question before us, it
bears repeating, is whether or not Proclamation No. 889 as it now stands, not as it was originally issued, is valid.
The starting point must be a recognition that the power to suspend the privilege of the writ belongs to the Executive,
subject to limitations. So the Constitution provides, and it is to be respected. The range of permissible inquiry to be
conducted by this Tribunal is necessarily limited then to the ascertainment of whether or not such a suspension, in
the light of the credible information furnished the President, was arbitrary. Such a test met with the approval of the
chief counsel for petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question before the judiciary
is not the correctness but the reasonableness of the action taken. One who is not the Executive but equally
knowledgeable may entertain a different view, but the decision rests with the occupant of the office. As would be
immediately apparent even from a cursory perusal of the data furnished the President, so impressively summarized
in the opinion of the Chief Justice, the imputation of arbitrariness would be difficult to sustain. Moreover, the steps
taken by him to limit the area where the suspension operates as well as his instructions attested to a firm resolve on
his part to keep strictly within the bounds of his authority. Under the circumstances, the decision reached by the
Court that no finding of unconstitutionality is warranted commends itself for approval. The most that can be said is
that there was a manifestation of presidential power well-nigh touching the extreme borders of his conceded
competence, beyond which a forbidden domain lies. The requisite showing of either improvidence or abuse has not
been made."
31
9. The Lansang doctrine for me is decisive on the various issues raised in this case, my discussion being confined
to petitioner Rodrigo, as well as others similarly situated, for under my view that the petition in Aquino should be
dismissed because charges had been filed, and the petition in Diokno should be considered withdrawn, there need
be no further inquiry as to the merits of their respective contentions.
Now, first as to the validity of the proclamation itself. It would seem that it is beyond question in the light of this
particular transitory provision in the present Constitution: "All proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid,
legal, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent
President, or unless expressly and explicitly modified or repealed by the regular National Assembly."
32
Independently
of such provision, such presidential proclamation could not be characterized as arbitrary under the standard set forth in
the Lansang decision. He did act "on the basis of carefully evaluated and verified information, [which] definitely
established that lawless elements who are moved by a common or similar ideological conviction, design strategy and goal
and enjoying the active moral and material support of a foreign power and being guided and directed by intensely
devoted, well-trained, determined and ruthless groups of men and seeking refuge Linder the protection of our
constitutional liberties to promote and attain their ends, have entered into a conspiracy and have in fact joined and banded
their resources and forces together for the prime purpose of, and in fact they have been and are actually staging,
undertaking and waging an armed insurrection and rebellion against the Government of the Republic of the Philippines in
order to forcibly seize political state power in the country overthrow the duly constituted and supplant our existing political,
social, economic, and legal order with an entirely new one whose form of government, whose system of laws, whose
conception of God and religion, whose notion of individual rights and family relations, and whose political, social,
economic, legal and moral precepts are based on the Marxist-Leninist-Maoist teachings and beliefs; ...."
33
Subsequent events did confirm the validity of such appraisal. Even now, from the pleadings of the Solicitor General,
the assumption that the situation has not in certain places radically changed for the better cannot be stigmatized as
devoid of factual foundation. As of the present, even on the view that the courts may declare that the crisis
conditions have ended and public safety does not require the continuance of martial law, there is not enough
evidence to warrant such a judicial declaration. This is not to deny that in an appropriate case with the proper
parties, and, in the language of Justice Laurel, with such issue being the very lis mota, they may be compelled to
assume such an awesome responsibility. A sense of realism as well as sound juristic theory would place such
delicate task on the shoulders of this Tribunal, the only constitutional court. So I would read Rutter v.
Esteban.
34
There, while the Moratorium Act
35
was at first assumed to be valid, with this Court in such suit being
persuaded that its "continued operation and enforcement" under circumstances that developed later, became
"unreasonable and oppressive," and should not be prolonged a minute longer, ... [it was] "declared null and void and
without effect."
36
It goes without saying that before it should take such a step, extreme care should be taken lest the
maintenance of public peace and order, the primary duty of the Executive, be attended with extreme difficult . It is likewise
essential that the evidence of public safety no longer requiring martial law be of the clearest and most satisfactory
character. It cannot be too strongly stressed that while liberty is a prime objective and the judiciary is charged with the
duty of safeguarding it, on a matter of such gravity during periods of emergency, the executive appraisal of the situation is
deserving of the utmost credence. It suffices to recall the stress laid by Chief Justice Concepcion in Lansang that its
function "is merely to check not to supplant" the latter. The allocation of authority in the Constitution made by the
people themselves to the three departments of government must be respected. There is to be no intrusion by any one into
the sphere that belongs to another. Precisely because of such fundamental postulate in those cases, and there may be
such, but perhaps rather rare, it could amount to judicial abdication if no inquiry were deemed permissible and the
question considered political.
The last point is, while the detention of petitioners could have been validly ordered, as dictated by the very
proclamation itself, if it continued for an unreasonable length of time, then his release may be sought in a habeas
corpus proceeding. This contention is not devoid of plausibility. Even in times of stress, it cannot just be assumed
that the indefinite restraint of certain individuals as a preventive measure is unavoidable. It is not to be denied that
where such a state of affairs could be traced to the wishes of the President himself, it carries with it the presumption
of validity. The test is again arbitrariness as defined in Lansang. It may happen that the continued confinement may
be at the instance merely of a military official, in which case there is more leeway for judicial scrutiny.
10. A word more on the withdrawal of a habeas corpus petition. On the basic assumption that precisely the great
writ of liberty is available to a person subjected to restraint so that he could challenge its validity, I find it difficult not
to yield assent to a plea by the applicant himself that he is no longer desirous or pursuing such remedy. He had a
choice of whether or not to go to court. He was free to act either way. The fact that at first he did so, but that later he
was of a different mind, does not, in my opinion, alter the situation. The matter, for me, is still one left to his free and
unfettered will. The conclusion then for me at least, is that a court must accede to his wishes. It could likewise be
based on his belief that the realities of the situation compel the conclusion that relief could come from the Executive.
That decision was his to make. It must be respected. Moreover, if only because of humanitarian considerations,
considering the ill-effects of confinement on his state of health, there is equally legal support for the view that his
conditional release as in the case of the other detainees would not be inappropriate.
If his motion for withdrawal contained phraseology that is offensive to the dignity of the court, then perhaps the
corresponding disciplinary action may be taken. For that purpose, and for that purpose alone, the petition may be
considered as still within judicial cognizance. It is true in certain cases that the issues raised may be so
transcendental that there is wisdom in continuing the proceeding. The withdrawal, even then, for me, is not fraught
with pernicious consequences. If the matter were that significant or important, the probability is that the question will
soon be ventilated in another petition. There is, to deal briefly with another point, the matter of the rather harsh and
bitter language in which the motion for withdrawal was couched. That is a matter of taste. Even if it went beyond the
bounds of the permissible, the withdrawal should be granted. This for me is the principle that should obtain. The
rather uncharitable view expressed concerning the ability of certain members of the Court to act justly on the matter
should not give rise, in my opinion, to undue concern. That is ones belief, and one is entitled to it. It does not follow
that thereby the person thus unjustifiably maligned should suffer any loss of self-esteem. After all, it is a truism to
say that a man on the bench is accountable only to his conscience and, in the ultimate analysis, to his Maker. There
is all the more reason then not to be unduly bothered by the remarks in question. Moreover, they emanated from a
source suffering from the pangs of desperation born of his continued detention. It could very well be that the
disappointment of expectations and frustration of hopes did lead to such an intemperate outburst. There is, for meat
least, relevance to this excerpt from an opinion by Justice Frankfurter: "Since courts, although representing the law,
... are also sitting in judgment, as it were, on their own function in exercising their power to punish for contempt, it
should be used only in flagrant cases and with the utmost forbearance. It is always better to err on the side of
tolerance and even of disdainful indifference."
37
11. There is novelty in the question raised by petitioner Rodrigo. Nor is that the only reason why it matters. It is
fraught with significance not only for him but also for quite a number of others in a like predicament. They belong to
a group released from confinement. They are no longer detained. Ordinarily that should suffice to preclude resort to
the remedy of habeas corpus. Offhand, it may be plausibly asserted that the need no longer exists. The prison wall,
to paraphrase Chafee is no longer there; it has on function in exercising their power to punish for contempt, it should
be used only in flagrant cases and with the utmost forbearance. It is always better to err on the side of tolerance and
even of disdainful indifference."
37
11. There is novelty in the question raised by petitioner Rodrigo. Nor is that the only reason why it matters. It is
fraught with significance not only for him but also for quite a number of others in a like predicament. They belong to
a group released from confinement. They are no longer detained. Ordinarily that should suffice to preclude resort to
the remedy of habeas corpus. Offhand, it may be plausibly asserted that the need no longer exists. The prison wall,
to paraphrase Chafee is no longer there; it has fallen down. What is there to penetrate? That is just the point,
petitioner Rodrigo complains. That is not really true, or only true partially. There are physical as well as intellectual
restraints on his freedom. His release is conditional. There are things he cannot say places he cannot go. That is not
liberty in a meaningful sense. This great writ then has not lost its significance for him, as well as for others similarly
situated. The way he developed his argument calls to mind Cardozos warning that in a world of reality, a juridical
concept may not always be pressed to the limit of its logic. There are countervailing considerations. The fact that he
was among those whose detention was ordered by the President is one of them. There was then an executive
determination on the highest level that the state of affairs marked by rebellious activities did call for certain
individuals being confined as a preventive measure. Unless there is a showing of the arbitrariness of such a move,
the judiciary has to respect the actuation. It must be assumed that what was to be done with them thereafter must
have been given some attention. At one extreme, their preventive detention could be terminated and their full
freedom restored. At the other, it could be continued if circumstances did so warrant. Here, there was a middle way
chosen. Petitioner Rodrigo as well as several others were released subject to conditions. It cannot be dogmatically
maintained that such a solution was an affront to reason. Not only for the person locked up, but perhaps even more
so for his family, the end of the incarceration was an eagerly awaited and highly welcome event. That is quite
understandable. It did justify petitioners assertion that in so agreeing to the conditions imposed, he was not acting
of his own free will. Realistically, be had no choice or one minimal at most. Nonetheless, it cannot be denied that he
was a recipient of what at the very least was a clear manifestation of the Philippine brand of martial law being
impressed with a mild character.
This being a habeas corpus petition, the appropriate question for judicial inquiry is the validity of the limits set to the
conditional release of petitioner Rodrigo. The guiding principle is supplied by this ringing affirmation of Justice
Malcolm: "Any restraint which will preclude freedom of action is sufficient."
38
The implication for me is that there may
be instances of the propriety of the invocation of the writ even without actual incarceration. This is one of them. It is
heartening that the Court so view it. It is, to my mind, regrettable though that there appears to be full acceptance of the
power of the military to impose restrictions on petitioner Rodrigos physical liberty. There is need, it would seem to me, for
a more discriminating appraisal, especially where it could be shown that the order to that effect proceeds from a source
lower than the President. The extremely high respect justifiably accorded to the action taken by the highest official of the
land, who by himself is a separate and independent department, not to mention the one constitutional official authorized to
proclaim martial law, is not indicated. There should be, of course, no casual or unreasoned disregard for what the military
may deem to be the appropriate measure under the circumstances. This reflection, though, gives me pause. Petitioner
Rodrigo and others similarly situated were released. That step would not have been taken if circumstances did not justify
it. It seems then reasonable to assume that full, rather than restricted, freedom was warranted. The matter may be put
forth more categorically, but I refrain from doing so. The reason is practical. To insist that it should be thus may curb what
appears to be the commendable tendency to put an end to the preventive detention of those in actual confinement. As for
restraints on intellectual liberty embraced in freedom of speech and of press, of assembly, and of association, deference
to controlling authorities compel me to say that the writ of habeas corpus is not the proper case for assailing them. It does
not mean that judicial inquiry is foreclosed. Far from it. All that is intended to be conveyed is that this remedy does not
lend itself to that purpose. In so advocating this approach, I am not unmindful that it might be looked upon as lack of
awareness for the mischief that may be caused by irresponsible elements, not to say the rebels themselves. The words of
Willoughby, whose view on martial law is the most sympathetic to the primacy of liberty, furnish the antidote: "As long as
the emergency lasts then, they must upon pain of arrest and subsequent punishment refrain from committing acts that will
render more difficult the restoration of a state of normalcy and the enforcement of law.
39
12. Reliance, as is quite evident from the foregoing, is wellnigh solely placed on Philippine authorities. While the
persuasive character of American Constitutional law doctrines is not entirely a thing of the past, still, the novelty of
the question before us, compels in my view deference to the trend indicated by our past decisions, read in the light
not only of specific holdings but also of the broader principles on which they are based. Even if they do not precisely
control, they do furnish a guide. Moreover, there seems to be a dearth of United States Supreme Court
pronouncements on the subject of martial law, due no doubt to absence in the American Constitution of any
provision concerning it. It is understandable why no reference was made to such subject in the earliest classic on
American constitutional law written by Justice Story.
40
When the landmark 1866 Milligan case
41
made its appearance,
and much more so after Sterling
42
followed in 1932 and Duncan
43
in 1946, a discussion thereof became unavoidable. So
it is evident from subsequent commentaries and case books.
44
Cooley though, in his equally famous work that was first
published in 1868 contented himself with footnote references to Milligan.
45
Watson viewed it in connection with the
suspension of the privilege of the writ of habeas corpus.
46
In the nineteen twenties, there was a fuller treatment of the
question of martial law. Burdick anticipated Willoughby with this appraisal: "So-called martial law, except in occupied
territory of an enemy, is merely the calling in of the aid of military forces by the executive, who is charged with the
enforcement of the law, with or without special authorization by the legislature. Such declaration of martial law does not
suspend the civil law, though it may interfere with the exercise of ones ordinary rights. The right to call out the military
forces to maintain order and enforce the law is simply part of the police power. It is only justified when it reasonably
appears necessary, and only justifies such acts as reasonably appear necessary to meet the exigency, including the
arrest, or in extreme cases the killing of those who create the disorder or oppose the authorities. When the exigency is
over the members of the military forces are criminally and civilly liable for acts done beyond the scope of reasonable
necessity. When honestly and reasonably coping with a situation of insurrection or riot a member of the military forces
cannot be made liable for his acts, and persons reasonably arrested under such circumstances will not, during the
insurrection or riot, be free by writ of habeas corpus.
47
Willoughby, as already noted, was partial to the claims of liberty. This is quite evident in this excerpt in his opus:
"There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby military law
is substituted for civil law. So-called declarations of martial law are, indeed, often made but their legal effect goes no
further than to warn citizens that the military powers have been called upon by the executive to assist him in the
maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment
not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law.
Some of the authorities stating substantially this doctrine are quoted in the footnote below."
48
Willis spoke similarly:
"Martial law proper, that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil law, but
is rather an aid to the execution of civil law. Declarations of martial law go no further than to warn citizens that the
executive has called upon the military power to assist him in the maintenance of law and order. While martial law is in
force, no new powers are given to the executive and no civil rights of the individual, other than the writ of habeas corpus,
are suspended. The relations between the citizen and his state are unchanged."
49
It is readily evident that even when Milligan supplied the only authoritative doctrine, Burdick and Willoughby did not
ignore the primacy of civil liberties. Willis wrote after Sterling. It would indeed be surprising if his opinion were
otherwise. After Duncan, such an approach becomes even more strongly fortified. Schwartz, whose treatise is the
latest to be published, has this summary of what he considers the present state of American law:
"The Milligan andDuncan cases show plainly that martial law is the public law of necessity. Necessity alone calls it
forth; necessity justifies its exercise; and necessity measures the extent and degree to which it may be employed. It
is, the high Court has affirmed, an unbending rule of law that the exercise of military power, where the rights of the
citizen are concerned, may never be pushed beyond what the exigency requires. If martial rule survives the
necessity on which alone it rests, for even a single minute, it becomes a mere exercise of lawless
violence."
50
Further: "Sterling v. Constantin is of basic importance. Before it, a number of decisions, including one by the
highest Court, went on the theory that the executive had a free hand in taking martial-law measures. Under them, it had
been widely supposed that a martial-law proclamation was so far conclusive that any action taken under it was immune
from judicial scrutiny. Sterling v. Constantin, definitely discredits these earlier decisions and the doctrine of conclusiveness
derived from them. Under Sterling v. Constantin, where martial law measures impinge upon personal or property rights
normally beyond the scope of military power, whose intervention is lawful only because an abnormal situation has made it
necessary the executives ipse dixit is not of itself conclusive of the necessity."
51
It is not to be lost sight of that the basis for the declaration of martial law in the Philippines is not mere necessity but
an explicit constitutional provision. On the other hand, Milligan, which furnished the foundation for Sterling
52
and
Duncan
53
had its roots in the English common law. There is pertinence therefore in ascertaining its significance under that
system. According to the noted English author, Dicey: " Martial law, in the proper sense of that term, in which it means
the suspension of ordinary law and the temporary government of a country or parts of it by military tribunals, is unknown
to the law of England. We have nothing equivalent to what is called in France the Declaration of the State of Siege, under
which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army
(autorite militaire). This is an unmistakable proof of the permanent supremacy of the law under our constitution."
54
There
was this qualification: "Martial law is sometimes employed as a name for the common law right of the Crown and its
servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law.
This right, or power, is essential to the very existence of orderly government, and is most assuredly recognized in the
most ample manner by the law of England. It is a power which has in itself no special connection with the existence of an
armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier,
whether what is called a servant of the government, such for example as a policeman, or a person in no way connected
with the administration, not only has the right, but is, as a matter of legal duty, bound to assist in putting down breaches of
the peace. No doubt policemen or soldiers are the persons who, as being specially employed in the maintenance of order,
are most generally called upon to suppress a riot, but it is clear that all loyal subjects are bound to take their part in the
suppression of riots."
55
The picture would be incomplete, of course, if no reference were made to Rossiter. In his work on Constitutional
Dictatorship, where he discussed crisis governments in the French Republic, in Great Britain and in the United State
he spoke of martial rule. For him, it "is an emergency device designed for use in the crises of invasion or rebellion. It
may be most precisely defined as an extension of military government to the civilian population, the substitution of
the will of a military commander for the will of the peoples elected government. In the event of an actual or imminent
invasion b a hostile power, a constitutional government may declare martial rule in the menaced area. The result is
the transfer of all effective powers of government from the civil authorities to the military, or often merely the
assumption of such powers by the latter when the regular government has ceased to function. In the event of a
rebellion its initiation amounts to a governmental declaration of war on those citizens in insurrection against the
state. In either case it means military dictatorship government by the army, courts-martial, suspension of civil
liberties, and the whole range of dictatorial action of an executive nature. In the modern democracies the military
exercises such dictatorship while remaining subordinate and responsible to the executive head of the civil
government. Martial rule has a variety of forms and pseudonyms, the most important of which aremartial law, as it is
known in the civil law countries of the British Empire and the United States, and the state of siege, as it is known in
the civil law countries of continental Europe and Latin America. The state of siege and martial law are two edges to
the same sword, and in action they can hardly be distinguished. The institution of martial rule is a recognition that
there are times in the lives of all communities when crisis has so completely disrupted the normal workings of
government that the military is the only power remaining that can restore public order and secure the execution of
the laws.
56
Happily for the Philippines, the declaration of martial law lends itself to the interpretation that the Burdick,
Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty possess relevance. It cannot
be said that the martial rule concept of Rossiter, latitudinarian in scope, has been adopted, even on the assumption
that it can be reconciled with our Constitution. What is undeniable is that President Marcos has repeatedly
maintained that Proclamation No. 1081 was precisely based on the Constitution and that the validity of acts taken
thereunder could be passed upon by the Supreme Court. For me, that is quite reassuring, persuaded as I am
likewise that the view of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on
freedom. No undue concern need then be felt as to the continuing reliance on Moyer v. Peabody,
57
where Justice
Holmes speaking for the Court, stated that the test of the validity of executive arrest is that they be made "in good faith
and in the honest belief that they are needed in order to head the insurrection off ..."
58
He did state likewise: "When it
comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to
what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial
process. See Keely v. Sanders, 99 US 441, 446, 25 L ed. 327, 328, This was admitted with regard to killing men in the
actual clash of arms and we think it obvious, although it was disputed, that the same is true of temporary detention to
prevent apprehended harm."
59
Nor was this to manifest less than full regard for civil liberties. His other opinions indicated
the contrary. More specifically, it was from his pen, in Chastleton Corporation v. Sinclair,
60
where the doctrine that the
judiciary may inquire into whether the emergency was at an end, was given expression. Thus: "We repeat what was
stated inBlock v. Hirsh, ..., as to the respect due to a declaration of this kind by the legislature so far as it relates to
present facts. But, even as to them, a court is not a liberty to shut its eyes to an obvious mistake, when the validity of the
law depends upon the truth of what is declared. ... And still more obviously, so far as this declaration looks to the future, it
can be no more than prophecy, and is liable to be controlled by events. A law depending upon the existence of an
emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change,
even though valid when passed."
61
13. It may safely be concluded therefore that the role of American courts concerning the legality of acts taken during
a period of martial law is far from minimal. Why it must he so was explained by Dean Rostow in this wise: "Unless
the courts require a showing, in cases like these, of an intelligible relationship between means and ends, society has
lost its basic protection against the abuse of military power. The generals good intention must be irrelevant. There
should be evidence in court that his military judgment had a suitable basis in fact. As Colonel Fairman, a strong
proponent of widened military discretion, points out: When the executive fails or is unable to satisfy the court of the
evident necessity for the extraordinary measures it has taken, it can hardly expect the court to assume it on
faith."
62
This is the way Lasswell would summarize the matter: "On the whole, we can conclude that the courts of this
country have a body of ancient principles and recent precedents that can be used to keep at a minimum unnecessary
encroachments upon private rights by the executive, civil or military. The vigor and sensitiveness with which the due
process clause has been affirmed in the last two decades is, in particular, an important development."
63
14. It may be that the approach followed may for some be indicative of lack of full awareness of todays stern
realities. It is my submission that to so view the transcendental issues before us is to adhere as closely as possible
to the ideal envisioned in Ex parte Milligan: "The Constitution is a law for rulers and for people equally in war and
peace and covers with the shield of its protection all classes of men at all times and under all circumstances."
64
It is
ever timely to reiterate that at the core of constitutionalism is a robust concern for individual rights. This is not to deny that
the judicial process does not take place in a social void. The questions that call for decision are to be examined in the total
social context with full appreciation of the environmental facts, whether viewed in its temporal or other relevant aspects.
They have to reconcile time-tested principles to contemporary problems. Legal norms cannot always stand up against the
pressure of events. The great unquestioned verities may thus prove to be less than adequate. So much is conceded.
Nonetheless, even with the additional difficulty that the Court today is compelled to enter terrain with boundaries not so
clearly defined, carrying with it the risk of exceeding the normal limits of judicial imprecision, I find myself unable to resist
the compulsion of constitutional history and traditional doctrines. The facts and issues of the petitions before us and the
mandates of the fundamental law, as I view them in the light of accepted concepts, blunt the edge of what otherwise could
be considerations of decisive impact. I find myself troubled by the thought that, were it otherwise, it would amount to
freezing the flux of the turbulent present with its grave and critical problems in the icy permanence of juristic doctrines. As
of now, such an uncomfortable thought intrudes. Hence this brief concurring and dissenting opinion.
* The other petitioners are Joaquin P. Roces, Teodoro M. Locsin, Rolando Fadul, Rosalina Galang, Go Eng Guan,
Maximo V. Soliven, Renato Constantino, Luis R. Mauricio, Napoleon G. Rama, Jose Mari Velez, Ramon V. Mitra,
Juan L. Mercado, Roberto Ordoez, Manuel Almario, and Ernesto Rondon.
TEEHANKEE, J .:
Prefatory statement: This separate opinion was prepared and scheduled to be promulgated with the judgment of the
Court (penned by the Chief Justice) on September 12, 1974. Such promulgation was however overtaken by the
welcome news of the release from detention on September 11, 1974 of petitioner Jose W. Diokno upon the order of
President Ferdinand E. Marcos, and the Court then resolved to defer promulgation until the following week. Hence,
Part I of this opinion dealing with the Diokno petition should be read in such time context.
The two other parts thereof dealing with the Aquino and Rodrigo cases are to be read as of the actual date of
promulgation, since they reiterate a main theme of the opinion that the Court should adhere to the well-grounded
principle of not ruling on constitutional issues except when necessary in an appropriate case. In the writers view,
the gratifying development in the Diokno case which rendered his petition moot by virtue of his release once more
demonstrates the validity of this principle.
I. On the Diokno petition: I vote for the granting of petitioner Jose W. Dioknos motion of December 29, 1973 to
withdraw the petition for habeas corpus filed on September 23, 1972 on his behalf and the supplemental petition
and motions for immediate release and for oral argument of June 29, 1973 and August 14, 1973 filed in support
thereof, as prayed for.
1. The present action is one of habeas corpus and the detainees own withdrawal of his petition is decisive. If the
detainee himself withdraws his petition and no longer wishes this Court to pass upon the legality of his detention and
cites the other pending habeas corpus cases which have not been withdrawn and wherein the Court can rule on the
constitutional issues if so minded,
1
such withdrawal of a habeas corpus petition should be granted practically as a
matter of absolute right (whatever be the motivations therefor) in the same manner that the withdrawal motions of the
petitioners in the other- cases were previously granted by the Court.
2
Since there were seven (7) members of the Court who voted for granting the withdrawal motion as against five (5)
members who voted for denying the same and rendering a decision,
3
submit that this majority of seven (7) out of the
Courts membership of twelve (12) is a sufficient majority for granting the withdrawal prayed for. A simple majority of
seven is legally sufficient for the granting of a withdrawal of a petition, since it does not involve the rendition of a decision,
on the merits. It is only where a decision is to be rendered on the merits by the Court en banc that the 1973 Constitution
requires the concurrence of at least eight (8) members.
4
I therefore dissent from the majoritys adhering to the five-member minority view that the majority of seven members
is not legally sufficient for granting withdrawal and that a decision on the merits be rendered notwithstanding the
withdrawal of the petition.
2. The granting of the withdrawal of the petition is but in consonance with the fundamental principle on the exercise
of judicial power which, in the words of the Solicitor-General, "as Justice Laurel emphasized, is justifiable only as a
necessity for the resolution of an actual case and controversy and therefore should be confined to the very lis mota
presented."
5
Such withdrawal is furthermore in accord with the respondents stand from the beginning urging the Court not to
take cognizance (for want of jurisdiction or as a matter of judicial restraint citing Brandeis injunction that "The most
important thing we decide is what not to decide"
6
) or that "at the very least, this Court should postpone consideration of
this case until the present emergency is over."
7
Many of the other petitioners in the habeas corpus cases at bar were granted leave to withdraw their petitions.
Petitioner Dioknos withdrawal motion should likewise be granted in line with the well-established doctrine that the
Court will not rule on constitutional issues except when necessary in an appropriate case.
3. But the Solicitor-General now objects to the withdrawal on the ground of public interest and that "this Tribunal ...
has been used as the open forum for underground propaganda by those who have political axes to grind" with the
circulation of the withdrawal motion and that this Court would be "putting the seal of approval" and in effect admit the
"unfair, untrue and contemptuous" statements made in the withdrawal motion should this Court grant the
withdrawal.
8
I see no point in the position taken by the Solicitor-General of urging the Court to deny the withdrawal
motion only to render a decision that would after all dismiss the petition and sustain respondents defense of political
question and have the Court declare itself without jurisdiction to adjudicate the constitutional issues presented
9
and
asking the Court to embrace the "pragmatic method" of William James which "rejects ... the a priori assumption that there
are immutable principles of justice. It tests a proposition by its practical consequences."
10
The objections are untenable.
The public interest objection is met by the fact that there are still pending. other cases (principally the prohibition
case of petitioner Benigno S. Aquino, Jr. in another case, L-37364 questioning the filing of grave charges under the
Anti-Subversion Act, etc. against him with a military commission
11
and which is not yet submitted for decision) where
the same constitutional issues may be resolved.
The other objections are tenuous: The Solicitor-General refutes his own objections in his closing statement in his
comment that "for their part, respondents are confident that in the end they would be upheld in their defense, as
indeed petitioner and counsel have practically confessed judgment in this case."
12
The propaganda objection is not a valid ground for denying the withdrawal of the petition and should not be held
against petitioner who had nothing whatsoever to do with it. The objection that granting the withdrawal motion would
amount to an admission of the "unfair, untrue and contemptuous statements" made therein is untenable since it is
patent that granting the withdrawal motion per se (regardless of petitioners reasons) does not amount to an
admission of the truth or validity of such reasons and as conceded by the Solicitor-General, neither will denying the
withdrawal motion per se disprove the reasons.
13
The untruth, unfairness or costumacy of such reasons may best be
dealt with, clarified or expounded by the Court and its members in the Courts resolution granting withdrawal or in the
separate opinions of the individual Justices (as has actually been done and which the writer will now proceed to do).
4. Petitioners first reason for withdrawal is subjective. After mentioning various factors, particularly, the fact that five
of the six Justices (including the writer) who held in the Ratification cases
14
that the 1973 Constitution had not been
validly ratified had taken on October 29, 1973 an oath to import and defend the new Constitution, he expresses his feeling
that "(I) cannot reasonably expect either right or reason, law or justice, to prevail in my case," that "the unusual length of
the struggle also indicates that its conscience is losing the battle" and that "since I do not wish to be a party to an I
adverse decision, I must renounce every possibility of favorable judgment."
15
A partys subjective evaluation of the Courts
action is actually of no moment, for it has always been recognized that this Court, possessed of neither the sword nor the
purse, must ultimately and objectively rest its authority on sustained public confidence in the truth, justice, integrity and
moral force of its judgments."
16
Petitioners second reason for withdrawal reads: "(S)econd, in view of the new oath that its members have taken,
the present Supreme Court is a new Court functioning under a new Constitution, different from the Court and the
Constitution under which I applied for my release. I was willing to be judged by the old Court under the old
Constitution, but not by the new Court under the new Constitution, ...."
17
Petitioner is in error in his assumption that this Court is "new Court functioning under a new Constitution different
from the Court and the Constitution under which [he] applied for [his] release." The same Supreme Court has
continued save that it now operates under Article X of the 1973 Constitution which inter alia increased its component
membership from eleven to fifteen and transferred to it administrative supervision over all courts and personnel
thereof with the power of discipline and dismissal over judges of inferior courts, in the same manner that the same
Republic of the Philippines (of which the Supreme Court is but a part) has continued in existence but now operates
under the 1973 Constitution.
18
During the period of ninety days that the Ratification cases were pending before the Court until its dismissal of the
cases per its resolution of March 31, 1973 became final on April 17, 1973, the Executive Department was operating
under the 1973 Constitution in accordance with President Ferdinand E. Marcos Proclamation No. 1102 on January
17, 1973 announcing the ratification and corning into effect of the 1973 Constitution while this Court as the only
other governmental department continued to operate tinder the 1935 Constitution pending its final resolution on the
said cases challenging the validity of Proclamation No. 1102 and enforcement of the new Constitution. (As per the
Court resolution of January 23, 1973, it declined to take over from the Department of Justice the administrative
supervision over all inferior courts expressing its sense that "it is best that the status quobe maintained until the
case aforementioned (Javellana vs. Exec. Secretary) shall have been finally resolved...")
Such a situation could not long endure wherein the only two great departments of government, the Executive and
the Judicial,
19
for a period of three months were operating under two different Constitutions (presidential and
parliamentary). When this Courts resolution of dismissal of the Ratification cases by a majority of six to four Justices
became final and was entered on April 18, 1973 "with the result that there (were) not enough votes to declare that the new
Constitution is not in force,"
20
the Court and particularly the remaining three dissenting Justices (notwithstanding their
vote with three others that the new Constitution had not been validly ratified
21
had to abide under the Rule of Law by the
decision of the majority dismissing the cases brought to enjoin the enforcement by the Executive of the new Constitution
and had to operate under it as the fundamental charter of the government, unless they were to turn from legitimate dissent
to internecine dissidence for which they have neither the inclination nor the capability.
The Court as the head of the Judicial Department thenceforth assumed the power of administrative supervision over
all courts and all other functions and liabilities imposed on it under the new Constitution. Accordingly, this and all
other existing inferior courts continue to discharge their judicial function and to hear and determine all pending cases
under the old (1935)Constitution
22
as well as new cases under the new (1973) Constitution with the full support of the
members of the Integrated Bar of the Philippines (none of whom has made petitioners claim that this is a "new Court"
different from the "old Court").
A major liability imposed upon all members of the Court and all other officials and employees was that under Article
XVII, section 9 of the Transitory Provisions
23
which was destructive of their tenure and called upon them "to vacate their
respective offices upon the appointment and qualification of their successors." Their taking the oath on October 29, 1973
"to preserve and defend the new Constitution" by virtue of their "having been continued in office"
24
on the occasion of the
oath-taking of three new members of the Court
25
pursuant to Article XV, section 4
26
was meant to assure their "continuity
of tenure" by way of the President having exercised the power of replacement under the cited provision and in effect
replaced them with themselves as members of the Court with the same order of seniority.
27
5. The withdrawal in effect gives cause for judicial abstention and further opportunity (pending submittal for decision
of the Aquino prohibition case in L-37364) to ponder and deliberate upon the host of grave and fundamental
constitutional questions involved which have thereby been rendered unnecessary to resolve here and now.
In the benchmark case of Lansang vs. Garcia
28
when the Court declared that the President did not act arbitrarily in
issuing in August, 1971 Proclamation No. 889, as amended, suspending the privilege of the writ of habeas corpus for
persons detained for the crimes of insurrection or rebellion and other overt acts committed by them in furtherance thereof,
the Court held through then Chief Justice Concepcion that "our next step would have been the following: The Court, or a
commissioner designated by it, would have received evidence on whether as stated in respondents Answer and
Return said petitioners had been apprehended and detained on reasonable belief that they had participated in the
crime of insurrection or rebellion.
(However, since in the interval of two months during the pendency of the case, criminal complaints had been filed in
court against the petitioners-detainees (Luzvimindo David, Gary Olivar, et al.), the Court found that "it is best to let
said preliminary examination and/or investigation be completed, so that petitioners release could be ordered by the
court of first instance, should it find that there is no probable cause against them, or a warrant for their arrest could
be issued should a probable cause be established against them ."
29
The Court accordingly ordered the trial court "to
act with utmost dispatch" in conducting the preliminary investigation for violation of the Anti-Subversion Act and "to issue
the corresponding warrants of arrest, if probable cause is found to exist against them, or otherwise, to order their
release.")
Can such a procedure for reception of evidence on the controverted allegations concerning the detention as
indicated in Lansang be likewise applied to petitioners case considering his prolonged detention for almost two
years now without charges?
30
It should also be considered that it is conceded that even though the privilege of the writ
ofhabeas corpus has been suspended, it is suspended only as to certain specific crimes and the "answer and return" of
the respondents who hold the petitioner under detention is not conclusive upon the courts which may receive evidence
and determine as held in Lansang (and as also provided in the Anti-Subversion Act [Republic Act 1700]) whether a
petitioner has been in fact apprehended and detained arbitrarily or "on reasonable belief" that he has "participated in the
crime of insurrection or rebellion" or other related offenses as may be enumerated in the proclamation suspending the
privilege of the writ.
Pertinent to this question is the Courts adoption in Lansang of the doctrine of Sterling vs. Constantin
31
enunciated
through U.S. Chief Justice Hughes that even when the state has been placed under martial law "... (W)hen there is
asubstantial showing that the exertion of state power has overridden private rights secured by that Constitution, the
subject isnecessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the
transgression. To such a case the Federal judicial power extends (Art. 3, sec. 2) and, so extending, the court has all the
authority appropriate to its exercise. ...
Equally pertinent is the Courts statement therein announcing the members unanimous conviction that "it has the
authority to inquire into the existence of said factual bases [stated in the proclamation suspending the privilege of
the writ of habeas corpus or placing the country under martial law as the case may be, since the requirements for
the exercise of these powers are the same and are provided in the very same clause] in order to determine the
constitutional sufficiency thereof."
32
The Court stressed therein that "indeed, the grant of power to suspend the privilege
is neither absolute nor unqualified. The authority conferred upon by the Constitution, both under the Bill of Rights and
under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as
well as an exception thereto. what is more, it postulates the former in the negative, evidently to stress its importance, by
providing that (t)he privilege of the writ of habeas corpus shall not be suspended .... It is only by way of exception that it
permits the suspension of the privilege in cases of invasion, insurrection, or rebellion or under Art. VII of the
Constitution, imminent danger thereof when the public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for such suspension shall exist. Far from being full and plenary, the
authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed
setting or the conditions essential to its existence, but also, as regards the time when and the place where it may be
exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines
and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the
Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper
bounds, be inquired into by the courts of justice. Otherwise, the explicit constitutional provisions thereon would be
meaningless. Surely, the frames of our Constitution could not have intended to engage in such a wasteful exercise in
futility."
33
While a state of martial law may bar such judicial inquiries under the writ of habeas corpus in the actual theater of
war, would the proscription apply when martial law is maintained as an instrument of social reform and the civil
courts (as well as military commissions) are open and freely functioning? What is the extent and scope of the
validating provision of Article XVII, section 3 (2) of the Transitory Provisions of the 1973 Constitution?
34
Granting the validation of the initial preventive detention, would the validating provision cover indefinite detention
thereafter or may inquiry be made as to its reasonable relation to meeting the emergency situation?
What rights under the Bill of Rights, e.g. the rights to due process and to "speedy, impartial and public trial"
35
may
be invoked under the present state of martial law?
Is the exercise of martial law powers for the institutionalization of reforms incompatible with recognizing the
fundamental liberties granted in the Bill of Rights?
The President is well aware of the laymans view of the "central problem of constitutionalism in our contemporary
society ... whether or not the Constitution remains an efficient instrument for the moderation of conflict within society.
There are two aspects of this problem. One is the regulation of freedom in order to prevent anarchy. The other is the
limitation of power in order to prevent tyranny."
36
Hence, he has declared that "The New Society looks to individual rights as a matter of paramount concern, removed
from the vicissitudes of political controversy and beyond the reach of majorities. We are pledged to uphold the Bill of
Rights and as the exigencies may so allow, we are determined that each provision shall be executed to the
fullest,"
37
and has acknowledged that "martial law necessarily creates a command society ... [and] is
atemporary constitutional expedient of safeguarding the republic ..."
38
He has thus described the proclamation of martial law and "the setting up of a corresponding crisis government" as
constitutional authoritarianism," which is a recognition that while his government is authoritarian it is essentially
constitutional and recognizes the supremacy of the new Constitution.
He has further declared that "martial law should have legally terminated on January 17, 1973 when the new
Constitution was ratified" but that "the Popular clamor manifested in the referendum [was] that the National
Assembly he temporarily suspended" and the reaction in the July, 1973 referendum "was violently against stopping
the use of martial law powers," adding that "I intend to submit this matter at least notice a year to the people, and
when they say we should shift to the normal functions of government, then we will do so."
39
The realization of the prospects for restoration of normalcy and full implementation of each and every provision of
the Bill of Rights as pledged by the President would then hopefully come sooner rather than later and provides an
additional weighty reason for the exercise of judicial abstention under the environmental circumstances and for the
granting of the withdrawal motion.
II. In the Aquino case: I maintain my original vote as first unanimously agreed by the Court for dismissal of
thehabeas corpus petition of Benigno S. Aquino, Jr. on the ground that grave charges against him for violation of the
Anti-Subversion Act (Republic Act 1700), etc. were filed in August, 1973 and hence the present petition has been
superseded by the prohibition case then filed by him questioning the filing of the charges against him with a military
commission rather than with the civil courts (which case is not yet submitted for decision).
The said prohibition case involves the same constitutional issues raised in the Diokno case and more, concerning
the constitutionality of having him tried by a military commission for offenses allegedly committed by him long before
the declaration of martial law. This is evident from the special and affirmative defenses raised in respondents
answer which filed just last August 21, 1974 by the Solicitor which reiterate the same defenses in his answer to the
petition at bar. Hence, the same constitutional issues may well be resolved if necessary in the decision yet to be
rendered by the Court in said prohibition case.
I therefore dissent from the subsequent vote of the majority to instead pass upon and resolve in advance the said
constitutional issues unnecessarily in the present case.
III. In the Rodrigo case: I submit that the habeas corpus petition of Francisco "Soc" Rodrigo as well as the petitions
of those others similarly released should be dismissed for having been rendered moot and academic by virtue of
their release from physical confinement and detention. That their release has been made subject to certain
conditions (e.g. not being allowed to leave the Greater Manila area without specific authorization of the military
authorities) does not mean that their action would survive, since "(T)he restraint of liberty which would justify the
issuance of the writ must be more than a mere moral restraint; it must be actual or physical ."
40
They may have some
other judicial recourse for the removal of such restraints but their action for habeas corpus cannot survive since they are
no longer deprived of their physical liberty. For these reasons and those already expounded hereinabove, I dissent from
the majority vote to pass upon and resolve in advance the constitutional issues unnecessarily in the present case.
BARREDO, J ., concurring:
It is to my mind very unfortunate that, for reasons I cannot comprehend or do not deem convincing, the majority of
the Court has agreed that no main opinion be prepared for the decision in these, cases. Honestly, I feel that the
grounds given by the Chief Justice do not justify a deviation from the regular practice of a main opinion being
prepared by one Justice even when the members of the Court are not all agreed as to the grounds of the judgment
as long as at least a substantial number of Justices concur in the basic ones and there are enough other Justices
concurring in the result to form the required majority. I do not see such varying substantial disparity in the views of
the members of the Court regarding the different issues here as to call for a summarization like the one that was
done, with controversial consequences, in Javellana. * Actually, the summarization made by the Chief Justice does not in my opinion portray
accurately the spectrum of our views, if one is to assay the doctrinal value of this decision. The divergences stated are I think more apparent than real.
In any event, it is my considered view that a historical decision like this, one likely to be sui generis, at the same time
that it is of utmost transcendental importance because it revolves around the proper construction of the
constitutional provisions securing individual rights as they may be, affected by those empowering the Government to
defend itself against the threat of internal and external aggression, as these are actually operating in the setting of
the Official proclamation of the Executive that rebellion endangering public safety actually exists, deserves better
treatment from the Court. Indeed, I believe that our points of seeming variance respecting the questions before us
could have been threshed out, if only enough effort in that direction had been exerted by all. The trouble is that from
the very beginning many members of the Court, myself included, announced our desire to have our views recorded
for history, hence, individualization rather than consensus became the order of the day. In consequence, the
convenient solution was forged that as long as there would be enough votes to support a legally binding judgment,
there need not be any opinion of the Court, everyone could give his own views and the Chief Justice would just try
to analyze the opinions of those who would care to prepare one and then make a certification of the final result of
the voting. It was only at the last minute that, at my suggestion, supported by Justice Castro, the Chiefs prepared
certification was modified to assume the form of a judgment, thereby giving this decision a better semblance of
respectability.
As will be seen, this separate opinion of concurrence is not due to any irreconcilable conflict of conviction between
me and any other member of the Court. Truth to tell, at the early stages of our efforts to decide these but after the
Court had more or less already arrived at a consensus as to the result, I was made to understand that I could
prepare the opinion for the Court. Apparently, however, for one reason or another, some of our colleagues felt that it
is unnecessary to touch on certain matters contained in the draft I had submitted, incomplete and unedited as it was,
hence, the plan was abandoned. My explanation that a decision of this import should be addressed in part to the
future and should attempt to answer, as best we can, not only the questions raised by the parties but also the
relevant ones that we are certain are bothering many of our countrymen, not to speak of those who are interested in
the correct juridical implications of the unusual political developments being witnessed in the Philippines these days,
failed to persuade them. I still feel very strongly, however, the need for articulating the thoughts that will enable the
whole world to visualize and comprehend the exact length, breath and depth of the juridical foundations of the
current constitutional order and thus be better positioned to render its verdict thereon.
The following then is the draft of the opinion I prepared for the Court. I feel I need not adjust it to give it the tenor of
an individual opinion. Something inside me dictates that I should let it stand as I had originally prepared it. I am
emboldened to do this by the conviction that actually, when properly analyzed, it will be realized that whatever
differences there might be in the various opinions we are submitting individually, such differences lie only in the
distinctive methods of approach we have each preferred to adopt rather than in any basically substantial and
irreconcilable disagreement. If we had only striven a little more, I am confident, we could have even found a
common mode of approach. I am referring, of course, only to those of us who sincerely feel the urgency of resolving
the fundamental issues herein, regardless of purely technical and strained reasons there might be to apparently
justify an attitude of indifference, if not concealed antagonism, to the need for authoritative judicial clarification of the
juridical aspects of the New Society in the Philippines.
On September 11, 1974, petitioner Diokno was released by the order of the President, "under existing rules and
regulations." The Court has, therefore, resolved that his particular case has become moot and academic, but this
development has not affected the issues insofar as the other petitioners, particularly Senator Aquino, are concerned.
And inasmuch as the principal arguments of petitioner Diokno, although presented only in the pleadings filed on his
behalf, apply with more or less equal force to the other petitioners, I feel that my reference to and discussion of said
arguments in my draft may well be preserved, if only to maintain the purported comprehensiveness of my treatment
of all the important aspects of these cases.
Before proceeding any further, I would like to explain why I am saying we have no basic disagreements.
Except for Justices Makasiar and Esguerra who consider the recitals in the Proclamation to be absolutely conclusive
upon the courts and of Justice Teehankee who considers it unnecessary to express any opinion on the matter at this
point, the rest or eight of us have actually inquired into the constitutional sufficiency of the Proclamation. Where we
have differed is only as to the extent and basis of the inquiry. Without committing themselves expressly as to
whether the issue is justiciable or otherwise, the Chief Justice and Justice Castro unmistakably appear to have
actually conducted an inquiry which as far as I can see is based on facts which are uncontradicted in the record plus
additional facts of judicial notice. No independent evidence has been considered, nor is any reference made to the
evidence on which the President had acted. On their part, Justices Antonio, Fernandez and Aquino are of the view
that the Proclamation is not subject to inquiry by the courts, but assuming it is, they are of the conviction that the
record amply supports the reasonableness, or lack of arbitrariness, of the Presidents action. Again, in arriving at
this latter conclusion, they have relied exclusively on the same factual bases utilized by the Chief Justice and
Justice Castro. Justices Fernando and Muoz Palma categorically hold that the issue is justiciable and, on that
premise, they made their own inquiry, but with no other basis than the same undisputed facts in the record and facts
of judicial notice from which the others have drawn their conclusions. For myself, I am just making it very clear that
the inquiry which the Constitution contemplates for the determination of the constitutional sufficiency of a
proclamation of martial law by the President should not go beyond facts of judicial notice and those that may be
stated in the proclamation, if these are by their very nature capable of unquestionable demonstration. In other
words, eight of us virtually hold that the Executives Proclamation is not absolutely conclusive but it is not to be
interfered with whenever it with facts undisputed in the record as well as those of judicial notice or capable of
unquest demonstration. Thus, it is obvious that although we are split between upholding justiciability or non-
justiciability, those who believe in the latter have nonetheless conducted an inquiry, while those who adhere to the
former theory, insisting on following Lansang, have limited their inquiry to the uncontroverted facts and facts of
judicial notice. Indeed, the truth is that no one has asked for inquiry into the evidence before the President which is
what the real import of justiciability means. In the final analysis, none of us has gone beyond what in my humble
opinion the Constitution permits in the premises. In other words, while a declaration of martial law is not absolutely
conclusive, the Courts inquiry into its constitutional sufficiency may not, contrary to what is implied in Lansang,
involve the reception of evidence to be weighed against those on which the President has acted, nor may it extend
to the investigation of what evidence the President had before him. Such inquiry must be limited to what is
undisputed in the record and to what accords or does not accord with facts of judicial notice.
Following now is my separate concurring opinion which as I have said is the draft I submitted to the Courts
approval:
This is a cluster of petitions for habeas corpus seeking the release of petitioners from detention, upon the main
ground that, allegedly, Proclamation 1081 issued by President Ferdinand E. Marcos on September 21, 1972 placing
the whole country under martial law as well as the general orders subsequently issued also by the President by
virtue of the said proclamation, pursuant to which petitioners have been apprehended and detained, two of them
until the present, while the rest have been released conditionally, are unconstitutional and null and void, hence their
arrest and detention have no legal basis.
The petitioners in G. R. No. L-35538 are all journalists, namely, Joaquin P. Roces, Teodoro M. Locsin, Rolando
Fadul, Rosalind Galang, Go Eng Guan, Maximo M. Soliven, Renato Constantino and Luis R. Mauricio. Their petition
was filed at about noon of September 23, 1972.
Almost three hours later of the same day, the petition in G. R. No. L-35539 was filed, with Carmen I. Diokno, as
petitioner, acting on behalf of her husband, Jose W. Diokno, a senator, who is one of those still detained.
Two days later, early in the morning of September 25, 1972, the petition of Maximo V. Soliven, Napoleon G. Rama
and Jose Mari Velez, all media men, was docketed as G. R. No. L-35540. The last two were also delegates to the
Constitutional Convention of 1971.
In all the three foregoing cases, the proper writs of habeas corpus were issued returnable not later than 4:00 p.m. of
September 25, 1972, and hearing of the petitions was held on September 26, 1972.
1
Late in the afternoon of September 25, 1972, another petition was filed on behalf of Senators Benigno S. Aquino, Jr.
and Ramon V. Mitra, Jr., and former Senator Francisco "Soc" Rodrigo, also a TV commentator. (Delegate Napoleon
Rama also appears as petitioner in this case.) It was docketed as G. R. No. L-35546.
The next day, September 26, 1972, a petition was filed by Voltaire Garcia II, another delegate to the Constitutional
Convention, as G. R. No. L- 35547.
2
In this two cases the writs prayed for were also issued and the petitions were heard together on September 29,
1972.
In G. R. No. L-35556, the petition was filed by Tan Chin Hian and Veronica L. Yuyitung on September 27, 1972, but
the same was withdrawn by the latter on October 6, 1972 and the former on October 9, 1972, since they were
released from custody on September 30, 1972 and October 9, 1972, respectively. The Court allowed the
withdrawals by resolution on October 11, 1972.
On October 2, 1972, the petition of journalists Amando Doronila, Juan L. Mercado, Hernando J. Abaya, Ernesto
Granada, Luis Beltran, Tan Chin Hian, (already a petitioner in G. R. No. L-35556) Bren Guiao, (for whom a
subsequent petition was also filed by his wife in G. R. No. L-35571, but both petitions on his behalf were
immediately withdrawn with the approval of the Court which was given by resolution on October 11, 1972) Ruben
Cusipag, Roberto Ordoez, Manuel Almario and Willie Baun was filed in G. R. No.
L-35567. All these petitioners, except Juan L. Mercado, Manuel Almario, and Roberto Ordoez withdrew their
petition and the Court allowed the withdrawals by resolution of October 3, 1972.
And on October 3, 1972, Ernesto Rondon, also a delegate to the Constitutional Convention and a radio
commentator, filed his petition in G. R. No.
L-35573.
Again, in all these last four cases, G. R. Nos., L-35556, 35567, 35571 and 35573, the corresponding writs were
issued and a joint hearing of the petition was held October 6, 1972, except as to the petitioners who had as of then
announced the withdrawal of their respective petitions.
The returns and answers of the Solicitor General in all these nine cases, filed on behalf of the principal respondents,
the secretary of National Defense, Hon. Juan Ponce Enrile, the Chief of Staff of the Armed Forces of the Philippines,
General Romeo Espino, and the Chief of the Philippine Constabulary, General Fidel V. Ramos, were practically
identical as follows:
RETURN TO WRIT
and
ANSWER TO THE PETITION
COME NOW respondents, by the undersigned counsel, and appearing before this Honorable Court only for
purposes of this action, as hereunder set forth, hereby state by way of return to the writ and answer to the petition,
as follows:
ADMISSIONS/DENIALS
1. They ADMIT the allegation in paragraphs I and V of the Petition;
2. They ADMIT the allegations in paragraph II of the Petition that the petitioners were arrested on
September 22, 1972 and are presently detained at Fort Bonifacio, Makati, Rizal, but SPECIFICALLY
DENY the allegation that their detention is illegal, the truth being that stated in Special and
Affirmative Defenses of this Answer and Return;
3. They SPECIFICALLY DENY the allegations in paragraphs III, IV, VI and VII, of the Petition, the
truth of the matter being that stated in the Special and Affirmative Defenses of this Answer and
Return.
Respondents state by way of
SPECIAL AND AFFIRMATIVE DEFENSES
4. On September 21, 1972, the President of the Philippines, in the exercise of the powers vested in
him by Article VII, section 10, paragraph 2 of the Constitution, issued Proclamation No. 1081 placing
the entire Philippines under martial law;
5. Pursuant to said Proclamation , the President issued General Orders Nos. 1, 2, 3, 3-A, 4, 5, 6,
and 7 and Letters of Instruction Nos. 1, 2 and 3. True copies of these documents are hereto
attached and made integral parts hereof as Annexes 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11. A copy of the
Presidents statement to the country on September 23, 1972 is also attached as Annex 12;
6. Finally, the petition states no cause of action.
P R A Y E R
IN VIEW WHEREOF, it is respectfully prayed of this Honorable Supreme Court that the petition be
dismissed.
Manila, Philippines, September 27, 1972.
At the hearings, the following well-known and distinguished members of the bar appeared and argued for the
petitioners: Petitioner Diokno argued on his own behalf to supplement the arguments of his counsel of record; Attys.
Joker D. Arroyo appeared and argued for the petitioners in L-35538 and L35567; Francis E. Garchitorena, assisted
by Oscar Diokno Perez, appeared and argued for the petitioner in L-35539; Ramon A. Gonzales, assisted by
Manuel B. Imbong appeared and argued for the petitioners in
L-35540; Senators Gerardo Roxas and Jovito R. Salonga, assisted by Attys. Pedro L. Yap, Sedfrey A. Ordoez,
Custodio O. Parlade, Leopoldo L. Africa, Francisco Rodrigo Jr., Magdaleno Palacol and Dakila F. Castro, appeared
and argued for the petitioners in
L-35546; Atty. E. Voltaire Garcia Sr. appeared and argued in behalf of his petitioner son in L-35547; Attys. Raul I.
Goco and Teodulo R. Dino appeared for the petitioners in
L-35556; Atty. Roberto P. Tolentino appeared for the petitioner in L-35571; and Atty. Aquilino Pimentel Jr. assisted
by Atty. Modesto R. Galias Jr. appeared and argued for the petitioner in L-35578.
On October 31, 1972, former Senator Lorenzo M. Taada, together with his lawyer-sons, Attorneys Renato and
Wigberto Taada, entered their appearance as counsel for all the petitioners in G. R. No. L-35538, except Fadul,
Galang and Go Eng Guan, for petitioner Diokno in G. R. No. L-35539 and for petitioners Aquino, Mitra, Rodrigo and
Rama in G. R. No. L35546.
For the respondents, Solicitor General Estelito P. Mendoza, Assistant Solicitors General Bernardo P. Pardo and
Rosalio A. de Leon (both of whom are judges now), Solicitor Reynato S. Puno (now Assistant Solicitor General) and
Solicitors Jose A. R. Melo and Jose A. Janolo appeared in all the cases, but only the Solicitor General argued.
Later, Assistant Solicitor General Vicente V. Mendoza also appeared and co-signed all the subsequent pleadings
and memoranda for respondents.
After the hearings of September 26 and 29 and October 6, 1972, the parties were required to file their respective
memoranda. On November 9, 1972 petitioners in all the filed their consolidated 109-page memorandum, together
with the answers, contained in 86 pages, to some 33 questions posed by the Court in its resolution of September
29, 1972, and later, on December 1, 1972, an 88-page reply to the memorandum of respondents, with annexes. In a
separate Manifestation of Compliance and Submission filed simultaneously with their reply, petitioners stressed that:
4. That undersigned counsel for Petitioners did not ask for any extension of the period within which
to file the Reply Memorandum for Petitioners, despite overwhelming pressure of work, because
a. every day of delay would mean one day more of indescribable misery and anguish on the part of
Petitioners and their families; .
b. any further delay would only diminish whatever time is left more than a months time within
which this Court can deliberate on and decide these petitions, having in mind some irreversible
events which may plunge this nation into an entirely new constitutional order, namely, the approval
of the draft of the proposed Constitution by the Constitutional Convention and the plebiscite was
scheduled on January 15, 1973;
c. the proposed Constitution, if ratified might prejudice these petitions, in view of the following
transitory provision:
All proclamations, orders, decrees , instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and
effective even after the lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by the regular National
Assembly. (Article XVII, sec. 3, par. 2 of the proposed Constitution).
5. In view of the fact that they were arrested and detained allegedly in keeping with the existing
Constitution, it is only humane and just that these petitions to be accorded preference under Rule
22, section 1 of the Rules of Court be disposed of while there is still time left, in accordance with
the present Constitution and not in accordance with a new constitutional order being ushered in,
under the aegis of a martial rule, the constitutionality and validity of which is the very point at issue in
the instant petitions;
6. Since, according to the unanimous view of the authorities, as cited in their Memorandum, the
overriding purpose of martial law is and cannot go beyond the preservation of the constitutional
status quo, and not to alter it or hasten its alteration, it would be extremely unjust and inhuman, to
say the least, to allow these petitions for the great writ of liberty to be imperiled, by virtue of a new
Constitution submission and ratification of which are being pressed under martial law that
would purportedly ratify all Executive edicts issued and acts done under said regime something that
has never been done as far as is known in the entire history of the Anglo-American legal system;
(pp. 414-416, Rollo, L-35539.)
At this juncture, it may be stated that as of October 11, 1972, the following petitioners had already withdrawn:
Amando Doronila, Hernando J. Abaya, Ernesto Granada, Luis Beltran, Bren Guiao, Ruben Cusipag, Willie Baun,
Tan Chin Hian and Veronica L. Yuyitung; hence, of the original nine cases with a total of 32 petitioners,
3
only the six
above-entitled cases remain with 18 petitioners.
4
The remaining petitioners are: Joaquin P. Roces, Teodoro M. Locsin,
Sr., Rolando Fadul, Rosalind Galang, Go Eng Guan, Maximo V. Soliven, Renato Constantino, Luis R. Mauricio, Jose W.
Diokno thru Carmen Diokno, Napoleon G. Rama, Jose Mari Velez, Benigno S. Aquino, Ramon V. Mitra, Jr., Francisco S.
Rodrigo, Juan L. Mercado, Roberto Ordoez, Manuel Almario and Ernesto Rondon but only Senators Diokno and Aquino
are still in confinement, the rest having been released under conditions hereinafter to be discussed. The case of petitioner
Garcia in G. R. No. L-35547 is deemed abated on account of his death.
Over the opposition of these remaining petitioners, respondents counsel was given several extensions of their
period to file their memorandum, and it was not until January 10, 1973 that they were able to file their reply of 35
pages. Previously, their memorandum of 77 pages was filed on November 17, 1972. Thus, the cases were declared
submitted for decision only on February 26, 1973, per resolution of even date, only to be reopened later, as will be
stated anon.
In the meanwhile, practically the same counsel for petitioners in these cases engaged the government lawyers in
another and separate transcendental judicial tussle of two stages relative to the New Constitution. On December 7,
1972, the first of the so-called Plebiscite Cases (G. R. No. L-35925, Charito Planas vs. Comelec, G. R. No.
L-35929, Pablo C. Sanidad vs. Comelec, G. R. No. L-35940, Gerardo Roxas et al. vs. Comelec, G. R. No. L-35941,
Eddie B. Monteclaro vs. Comelec, G. R. No. L-35942, Sedfrey A. Ordoez vs. Treasurer, G. R. No. L-35948, Vidal
Tan vs. Comelec, G. R. No. L-35953, Jose W. Diokno et als. vs. Comelec, G. R. No. L-35961, Jacinto Jimenez vs.
Comelec, G. R. No. L-35965, Raul M. Gonzales vs. Comelec and G. R. No. L-35979, Ernesto Hidalgo vs. Comelec)
was filed. These cases took most of the time of the Court until January 22, 1973, when they were declared moot and
academic because of the issuance of Proclamation 1102 on January 17, 1973, but on January 20, 1973, as a
sequel to the Plebiscite Cases, Josue Javellana filed Case No. G. R. No. L-36142 against the Executive Secretary
and the Secretaries of National Defense, Justice and Finance. This started the second series of cases known as the
Ratification Cases, namely, said G. R. No. L36142 and G. R. No. L-36164, Vidal Tan vs. The Executive Secretary et
al., G. R. No.
L-36165, Gerardo Roxas et al. vs. Alejandro Melchor etc. et al., G. R. No. L-36236, Eddie B. Monteclaro vs. The
Executive Secretary, and G. R. No. L-36283, Napoleon V. Dilag vs. The Honorable Executive Secretary. The main
thrust of these petitions was that the New Constitution had not been validly ratified, hence the Old Constitution
continued in force and, therefore, whatever provisions the New Constitution might contain tending to validate the
proclamations, orders, decrees, and acts of the incumbent President which are being relied upon for the
apprehension and detention of petitioners, have no legal effect. In any event, the advent of a new constitution
naturally entailed the consequence that any question as to the legality of the continued detention of petitioners or of
any restraint of their liberties may not be resolved without taking into account in one way or another the pertinent
provisions of the new charter. Accordingly, the resolution of these two series of cases became a prejudicial matter
which the Court had to resolve first. It was not until March 31, 1973 that they were decided adversely to the
petitioners therein and it was only on April 17, 1973 that entry of final judgment was made therein.
From April 18, 1973, the membership of the Court was depleted to nine, in view of the retirement, effective on said
date, of then Chief Justice Roberto Concepcion. With its nine remaining members, doubts were expressed as to
whether or not the Court could act on constitutional matters of the nature and magnitude of those raised in these
cases, the required quorum for the resolution of issues of unconstitutionality under the New Constitution being ten
members. (Section 2 (2), Article IX, Constitution of the Philippines of 1973). Prescinding from this point, it is a fact
that even if it is not required expressly by the Constitution, by the Courts own policy which the Constitution
authorizes it to adopt, all cases involving constitutional questions are beard en banc in which the quorum and at the
same time the binding vote is of eight Justices. With only nine members out of a possible membership of fifteen, it
was not exactly fair for all concerned that the court should act, particularly in a case which in truth does not involve
only those who are actual parties therein but the whole people as well as the Government of the Philippines. So, the
Court, even as it went on informally discussing these cases from time to time, preferred to wait for the appointment
and qualification of new members, which took place only on October 29, 1973, when Justices Estanislao Fernandez,
Cecilia Muoz Palma and Ramon Aquino joined the Court.
Meantime, subsequent to the resolution of February 26, 1973, declaring these cases submitted for decision, or,
more particularly on June 29, 1973, counsel for petitioner Carmen I. Diokno in G. R. No. filed a 99-page
Supplemental Petition and Motion for Immediate Release which the Court had to refer to the respondents, on whose
behalf, the Solicitor General filed an answer on July 30, 19,73. On August 14, 1973, counsel for petitioner Diokno
filed a motion asking that the said petition and motion be set for hearing, which the Court could not do, in view
precisely of the question of quorum. As a matter of fact, in the related case of Benigno S. Aquino, Jr. vs. Military
Commission No. 2 et al., G. R. No. L-37364, further reference to which will be made later, a preliminary hearing had
to be held by the Court on Sunday, August 24, 1973, on the sole question of whether or not with its membership of
nine then, the Court could act on issues of constitutionality of the acts of the President.
At this point, it may be mentioned incidentally that thru several repeated manifestations and motions, Counsel
Francis E. Garchitorena of Petitioner Diokno invited the attention of the Court not only to alleged denial to his client
of "the essential access of and freedom to confer and communicate with counsel" but also to alleged deplorable
sub-human conditions surrounding his detention. And in relation to said manifestations and motions, on February
19,1973, said petitioner, Diokno, together with petitioner Benigno S. Aquino and joined by their common counsel,
Senator Lorenzo M. Taada filed with this Court a petition for mandamus praying that respondents be commanded
"to permit petitioner Taada to visit and confer freely and actively with petitioners Diokno and Aquino at reasonable
hours pursuant to the provisions of RA 857 and RA 1083 and in pursuance of such decision, (to direct said
respondents) (1) to clear the conference room of petitioners of all representatives of the Armed Forces and all
unwanted third persons, and prohibit their presence; (2) to remove or cause the removal of all listening devices and
other similar electronic equipment from the conference room of petitioners, with the further direction that no such
instruments be hereafter installed, and (3) to desist from the practice of examining (a) the notes taken by petitioner
Taada of his conferences with petitioners Diokno and Aquino; and (b) such other legal documents as petitioner
Taada may bring with him for discussion with said petitioners." (G. R. No. L-36315). For obvious reasons, said
petition will be resolved in a separate decision. It may be stated here, however, that in said G. R. No. L-36315, in
attention to the complaint made by Senator Taada in his Reply dated April 2, 1973, that Mesdames Diokno and
Aquino were not being allowed to visit their husbands, and, worse, their very whereabouts were not being made
known to them, on April 6, 1973, after hearing the explanations of counsel for therein respondents, the Court issued
the following resolution:
Upon humanitarian considerations the Court RESOLVED unanimously to grant, pending further
action by this Court, that portion of the prayer in petitioners Supplement and/or Amendment to
Petition filed on April 6, 1973 that the wives and minor children of petitioners Diokno and Aquino be
allowed to visit them, subject to such precautions as respondents may deem necessary.
We have taken pains to recite all the circumstances surrounding the progress of these cases from their inception in
order to correct the impression conveyed by the pleadings of petitioner Diokno, that their disposition has been
unnecessarily, it not deliberately, delayed. The Court cannot yield to anyone in being concerned that individual rights
and liberties guaranteed by the fundamental law of the land are duly protected and safeguarded. It is fully cognizant
of how important not only to the petitioners but also to the maintainance of the rule of law is the issue of legality of
the continued constraints on the freedoms of petitioners. Under ordinary circumstances, it does not really take the
Court much time to determine whether a deprivation of personal liberty is legal or illegal. But, aside from the unusual
procedural setbacks related above, it just happens that the basic issues to resolve here do not affect only the
individual rights of petitioners. Indeed, the importance of these cases transcends the interests of those who, like
petitioners, have come to the Court. Actually, what is directly involved here is the issue of the legality of the existing
government itself. Accordingly, We have to act with utmost care. Besides, in a sense, the legality of the Courts own
existence is also involved here, and We do not want anyone to even suspect We have hurried precipitately to
uphold Ourselves.
In addition to these considerations, it must be borne in mind that there are thousands of other cases in the Court
needing its continued attention. With its clogged docket. the Court, could ill afford to give petitioners any preference
that. would entail corresponding injustice to other litigants before it.
What is more, under the New Constitution, the administrative jurisdiction overall lower courts, including the Court
Appeals, has been transferred from the Department of Justice to the Supreme Court, and because that Department
refrained from attending to any administrative function over the courts since January 17, 1973, on April 18, 1973,
after the Ratification Cases became final, We found in Our hands a vast accumulation of administrative matters
which had to be acted upon without further delay, if the smooth and orderly functioning of the courts had to be
maintained. And, of course. the Court has to continuously attend to its new administrative work from day to day,
what with all kinds of complaints and charges being filed daily against judges, clerks of court and other officers and
employees of the different courts all over the country, which the Court en banc has to tackle. It should not be
surprising at all that a great portion of our sessions en banc has to be devoted to the consideration and disposition
of such administrative matters.
Furthermore, in this same connection, account must also be taken of the fact that the transfer of the administrative
functions of the Department to the Court naturally entailed problems and difficulties which consumed Our time, if
only because some of the personnel had to acquaint themselves with the new functions entrusted to them, while
corresponding adjustments had to be made in the duties and functions of the personnel affected by the transfer.
PRELIMINARY ISSUES
Now, before proceeding to the discussion and resolution of the issues in the pending petitions, two preliminary
matters call for disposition, namely, first, the motion of petitioner Jose W. Diokno, thru counsel Senator Taada, to
be allowed to withdraw his basic petition and second, the objection of petitioner, Francisco "Soc" Rodrigo, to the
Courts considering his petition as moot and academic as a consequence of his having been released from his place
of confinement in Fort Bonifacio. Related to the latter is the express manifestation of the other petitioners: Joaquin
P. Roces, Teodoro M. Locsin, Sr., Rolando Fadul, Rosalind Galang, Go Eng Guan, Maximo V. Soliven, Renato
Constantino, Luis R. Mauricio, Napoleon G. Rama, Jose Mari Velez. Ramon V. Mitra, Jr., Juan L. Mercado, Roberto
Ordoez, Manuel Almario and Ernesto Rondon to the effect that they remain as petitioners, notwithstanding their
having been released (under the same conditions as those imposed on petitioner Rodrigo thereby implying that they
are not withdrawing, as, in fact, they have not withdrawal their petitions and would wish them resolved on their
merits.(Manifestation of counsel for petitioners dated March 15, 1974.)
I
Anent petitioner Dioknos motion to withdraw, only seven members of the Court, namely, Chief Justice Makalintal
and Justices Zaldivar, Fernando, Teehankee, Muoz Palma, Aquino and the writer of this opinion, voted to grant the
same. Said number being short of the eight votes required for binding action of the Court en banc even in an
incident, pursuant to Section 11 of Rule 56, the said motion is denied, without prejudice to the right of each member
of the Court to render his individual opinion in regard to said motion.
5
One of the reason vigorously advanced by petitioner Diokno in his motion to withdraw is that he cannot submit his
case to the Supreme Court as it is presently constituted, because it is different from the one in which he filed his
petition, and that, furthermore, he is invoking, not the present or New Constitution of the Philippines the incumbent
Justices have now sworn to protect and defend but the Constitution of 1935
6
under which they were serving before.
Indeed, in the "Manifestation of Compliance and Submission" filed by his counsel as early as December 1, 1973, a similar
feeling was already indicated, as may be gathered from the portions thereof quoted earlier in this opinion.
Had petitioner reiterated and insisted on the position asserted by him in said manifestation shortly after the
ratification of the New Constitution on January 17, 1973 or even later, after the decision of this Court in the
Ratification Cases became final on April 17, 1973, perhaps, there could have been some kind of justification for Our
then and there declaring his petition moot and academic, considering his personal attitude of refusing to recognize
the passing out of the 1935 constitution and of the Supreme Court under it. But the fact is that as late as June 29,
1973, more than six months after the ratification of the New Constitution and more than two months after this Court
had declared that "there is no more judicial obstacle to the New Constitution being considered as in force and
effect", petitioner Diokno, thru counsel Taada, riled a "Supplemental Petition and Motion for Immediate Release"
wherein nary a word may be found suggesting the point that both the Constitution he is invoking and the Court he
has submitted his petition to have already passed into inexistence. On the contrary, he insisted in this last motion
that "an order be issued (by this Court) directing respondents to immediately file charges against him if they have
evidence supporting the same." Be it noted, in this connection, that by resolution of the Court of June 1, 1973, it had
already implemented the provisions on the Judiciary of the New Constitution and had constituted itself with its nine
members into the First Division, thereby making it unmistakably clear that it was already operating as the Supreme
Court under the New Constitution. The fact now capitalized by petitioner that the Justices took the oath only on
October 29, 1973 is of no signer, the truth being that neither the Justices continuation in office after the New
Constitution took effect nor the validity or propriety of the Courts resolution of June 1, 1973 just mentioned were
questioned by him before. Accordingly, the Motion in his motion to withdraw relative to the New Constitution and the
present Supreme Court appear to be obvious afterthoughts intended only to tend color to his refusal to have the
issue of alleged illegality of his detention duly resolved, realizing perchance the untenability thereof and the
inevitability of the denial of his petition, albeit none of this will ever be admitted, as may be gathered from his
manifestation that he would not want to have anything to do with any ruling of the Court adverse to his pretensions.
Just the same, the new oaths of the Justices and the applicability hereto of the Old and the New Constitution will be
discussed in another part of this opinion, if only to satisfy the curiosity of petitioner.
Although the other petitioners have not joined the subject withdrawal motion, it might just as well be stated, for
whatever relevant purpose it may serve, that, with particular reference to petitioner Rodrigo, as late as November
27,1973, after three new justices were added to the membership of the Court in partial obedience to the mandate of
the New Constitution increasing its total membership to fifteen, and after the Court had, by resolution of November
15, 1973, already constituted itself into two divisions of six Justices each, said petitioner filed a Manifestation "for the
purpose of showing that, insofar as (he) herein petitioner is concerned, his petition forhabeas corpus is not moot and
academic." Notably, this manifestation deals specifically with the matter of his "conditional release" as being still a
ground for habeas corpus but does not even suggest the fundamental change of circumstances relied upon in
petitioner Dioknos motion to withdraw. On the contrary, said manifestation indicates unconditional submission of
said petitioner to the jurisdiction of this Court as presently constituted. Of similar tenor is the manifestation of
counsel for the remaining petitioners in these cases dated March 15, 1974. In other words, it appears quite clearly
that petitioners should be deemed as having submitted to the jurisdiction of the Supreme Court as it is presently
constituted in order that it may resolve their petitions for habeas corpus even in the light of the provisions of the New
Constitution.
II
Coming now to the conditions attached to the release of the petitioners other than Senators Diokno and Aquino, it is
to be noted that they were all given identical release papers reading as follows:
HEADQUARTERS
5TH MILITARY INTELLIGENCE GROUP, ISAFP
Camp General Emilio Aguinaldo
Quezon City
M56P 5 December 1972
SUBJECT: Conditional Release
TO: Francisco Soc Rodrigo
1. After having been arrested and detained for subversion pursuant to Proclamation No. 1081 of the
President of the Philippines in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines, dated 21 September 1972, you are hereby conditionally released.
2. You are advised to abide strictly with the provisions of Proclamation No. 1081 and the ensuing
L0Is. Any violation of these provisions would subject you to immediate arrest and confinement.
3. Your investigation will continue following a schedule which you will later on be informed. You are
advised to follow this schedule strictly.
4. You are not allowed to leave the confines of Greater Manila Area unless specifically authorized by
this Office indicating the provincial address and expected duration of stay thereat. Contact this Office
through telephone No. 97-17-56 when necessary.
5. You are prohibited from giving or participating in any interview conducted by any local or foreign
mass media representative for purpose of publication and/or radio/TV broadcast.
6. Be guided accordingly.
(SGD.) MARIANO G. MIRANDA
Lt. Colonel PA
Group Commander
P L E D G E
THIS IS TO CERTIFY that I have read and understood the foregoing conditional release.
I HEREBY PLEDGE to conduct myself accordingly and will not engage in any subversive activity. I will immediately
report any subversive activity that will come to my knowledge.
(SGD.) F. RODRIGO
Address: 60 Juana Rodriguez
Quezon City
Tel No. 70-25-66; 7049-20
70-27-55
It is the submission of these petitioners that their release under the foregoing conditions is not absolute, hence their
present cases before the Court have not become moot and academic and should not be dismissed without
consideration of the merits thereof. They claim that in truth they have not been freed, because actually, what has
been done to them is only to enlarge or expand the area of their confinement in order to include the whole Greater
Manila area instead of being limited by the boundaries of the army camps wherein they were previously detained.
They say that although they are allowed to go elsewhere, they can do so only if expressly and specifically permitted
by the army authorities, and this is nothing new, since they could also go out of the camps before with proper
passes. They maintain that they never accepted the above conditions voluntarily. In other words, it is their position
that they are in actual fact being still so detained and restrained of their liberty against their will as to entitle them in
law to the remedy of habeas corpus.
We find merit in this particular submittal regarding the reach of habeas corpus. We readily agree that the
fundamental law of the land does not countenance the diminution or restriction of the individual freedoms of any
person in the Philippines without due process of law. No one in this country may suffer, against his will, any kind or
degree of constraint upon his right to go to any place not prohibited by law, without being entitled to this great writ of
liberty, for it has not been designed only against illegal and involuntary detention in jails, prisons and concentration
camps, but for all forms and degrees of restraint, without authority of law or the consent of the person concerned,
upon his freedom to move freely, irrespective of whether the area within which he is confined is small or large, as
long as it is not co-extensive with that which may be freely reached by anybody else, given the desire and the
means. More than half a century ago in 1919, this Court already drew the broad and all-encompassing scope
of habeas corpus in these unequivocal words: "A prime specification of an application for a writ of habeas corpus is
restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manners of
involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient."
6
* There is no reason at all at this time, hopefully there will
never be any in the future, to detract a whit from this noble attitude. Definitely, the conditions under which petitioners have
been released fall short of restoring to them the freedom to which they are constitutionally entitled. Only a showing that
the imposition of said conditions is authorized by law can stand in the way of an order that they be immediately and
completely withdrawn by the proper authorities so that the petitioners may again be free men as we are.
And so, We come to the basic question in these cases: Are petitioners being detained or otherwise restrained of
liberty, evidently against their will, without authority of law and due process?
THE FACTS
Aside from those already made reference to above, the other background facts of these cases are as follows:
On September 21, 1972, President Ferdinand E. Marcos
7
signed the following proclamation:
PROCLAMATION NO. 1081
PROCLAIMING A STATE OF MARTIAL LAW
IN THE PHILIPPINES
WHEREAS, on the basis of carefully evaluated and verified information, it is definitely established
that lawless elements who are moved by a common or similar ideological conviction, design,
strategy and goal and enjoying the active moral and material support of a foreign power and being
guided and directed by intensely devoted, well trained, determined and ruthless groups of men and
seeking refuge under the protection of our constitutional liberties to promote and attain their ends,
have entered into a conspiracy and have in fact joined and banded their resources and forces
together for the prime purpose of, and in fact they have been and are actually staging, undertaking
and waging an armed insurrection and rebellion against the Government of the Republic of the
Philippines in order to forcibly seize political and state power in this country, overthrow the duly
constituted Government, and supplant our existing political, social, economic and legal order with an
entirely new one whose form of government, whose system of laws, whose conception of God and
religion, whose notion of individual rights and family relations, and whose political, social, economic,
legal and moral precepts are based on the Marxist-Leninist-Maoist teachings and beliefs;
WHEREAS, these lawless elements, acting in concert through seemingly innocent and harmless,
although actually destructive, front organizations which have been infiltrated or deliberately formed
by them, have continuously and systematically strengthened and broadened their memberships
through sustained and careful recruiting and enlistment of new adherents from among our
peasantry, laborers, professionals, intellectuals, students, and mass media personnel, and through
such sustained and careful recruitment and enlistment have succeeded in spreading and expanding
their control and influence over almost every segment and level of our society throughout the land in
their ceaseless effort to erode and weaken the political, social, economic, legal and moral
foundations of our existing Government, and to influence, manipulate and move peasant, labor,
student and terroristic organizations under their influence or control to commit, as in fact they have
committed and still are committing, acts of violence, depredations, sabotage and injuries against our
duly constituted authorities, against the members of our law enforcement agencies, and worst of all,
against the peaceful members of our society;
WHEREAS, in the fanatical pursuit of their conspiracy and widespread acts of violence,
depredations, sabotage and injuries against our people, and in order to provide the essential
instrument to direct and carry out their criminal design and unlawful activities, and to achieve their
ultimate sinister objectives, these lawless elements have in fact organized, established and are now
maintaining a Central Committee, composed of young and dedicated radical students and
intellectuals, which is charged with guiding and directing the armed struggle and propaganda
assaults against our duly constituted Government, and this Central Committee is now imposing its
will and asserting its sham authority on certain segments of our population, especially in the rural
areas, through varied means of subterfuge, deceit, coercion, threats, intimidations, machinations,
treachery, violence and other modes of terror, and has been and is illegally exacting financial and
other forms of contributes from our people to raise funds and material resources to support its
insurrectionary and propaganda activities against our duly constituted Government and against our
peace-loving people;
WHEREAS, in order to carry out, as in fact they have carried out, their premeditated plan to stage,
undertake and wage a full scale armed insurrection and rebellion in this country, these lawless
elements have organized, established and are now maintaining a well trained, well armed and highly
indoctrinated and greatly expanded insurrectionary force, popularly known as the New Peoples
Army which has since vigorously pursued and still is vigorously pursuing a relentless and ruthless
armed struggle against our duly constituted Government and whose unmitigated forays, raids,
ambuscades assaults and reign of terror and acts of lawlessness in the rural areas and in our urban
centers brought about the treacherous and cold-blooded assassination of innocent civilians, military
personnel of the Government and local public officials in many parts of the country, notably in the
Cagayan Valley, in Central Luzon, in the Southern Tagalog Region, in the Bicol Area, in the Visayas
and in Mindanao and whose daring and wanton guerrilla activities have generated and fear and
panic among our people, have created a climate of chaos and disorder, produced a state of political,
social, psychological and economic instability in our land, and have inflicted great suffering and
irreparable injury to persons and property in our society;
WHEREAS, these lawless elements, their cadres, fellowmen, friends, sympathizers and supporters
have for many years up to the present time been mounting sustained, massive and destructive
propaganda assaults against our duly constituted Government its intrumentalities, agencies and
officials, and also against our social, political, economic and religious institutions, through the
publications, broadcasts and disseminations of deliberately slanted and overly exaggerated news
stories and news commentaries as well as false , vile, foul and scurrilous statements, utterances,
writings and pictures through the press-radio-television media and through leaflets, college campus
newspapers and some newspapers published and still being published by these lawless elements,
notably the Ang Bayan, Pulang Bandila and the Ang Komunista, all of which are clearly well-
conceived, intended and calculated to malign and discredit our duly constituted Government, its
instrumentalities, agencies and officials before our people, and thus undermine and destroy the faith
and loyalty and allegiance of our people in and alienate their support for their duly constituted
Government, its instrumentalities, agencies and officials, and thereby gradually erode and weaken
as in fact they had so eroded and weakened the will of our people to sustain and defend our
Government and our democratic way of life;
WHEREAS, these lawless elements having taken up arms against our duly constituted Government
and against our people, and having committed and are still committing acts of armed insurrection
and rebellion consisting of armed raids, forays, sorties, ambushes, wanton acts of murders,
spoilage, plunder, looting, arsons, destruction of public and private buildings, and attacks against
innocent and defenseless civilian lives and property, all of which activities have seriously
endangered and continue to endanger public order and safety and the security of the nation, and
acting with cunning and manifest precision and deliberation and without regard to the health, safety
and well-being of the people, are now implementing their plan to cause wide spread, massive and
systematic destruction and paralyzation of vital public utilities and service particularly water systems,
sources of electrical power, communication and transportation facilities, to the great detriment,
suffering, injury and prejudice of our people and the nation and to generate a deep psychological
fear and panic among our people;
WHEREAS, the Supreme Court in the cases brought before it, docketed as G. R. Nos. L-33964, L-
33965, L-33973, L-33982, L-34004, L-34013, L-34039, L-34265, and L-34339, as a consequence of
the suspension of the privilege of the writ of habeas corpus by me as President of the Philippines in
my Proclamation No. 889, dated August 21, 1971, as amended, has found that in truth and in fact
there exists an actual insurrection and rebellion in the country by a sizeable group of men who have
publicly risen in arms to overthrow the Government. Here is what the Supreme Court said in its
decision promulgated on December 11, 1971:
... our jurisprudence attests abundantly to the Communist activities in the Philippines, especially in Manila, from the
late twenties to the early thirties, then aimed principally at incitement to sedition or rebellion, as the immediate
objective. Upon the establishment of the Commonwealth of the Philippines, the movement seemed to have warned
notably; but, the outbreak of World War II in the Pacific and the miseries, the devastation and havoc, and the
proliferation of unlicensed firearms concomitant with the military occupation of the Philippines and its subsequent
liberation, brought about, in the late forties, a resurgence of the Communist threat, with such vigor as to be able to
organize and operate in Central Luzon an army called HUKBALAHAP, during the occupation, and renamed
Hukbong Mapagpalaya ng Bayan (HMB) after liberation which clashed several times with the Armed Forces of
the Republic. This prompted then President Quirino to issue Proclamation No. 210, dated October 22, 1950,
suspending the privilege of the writ of habeas corpus the validity of which was upheld in Montenegro v. Castaeda.
Days before the promulgation of said Proclamation, or on October 18, 1950, members of the Communist Politburo in
the Philippines were apprehended in Manila. Subsequently accused and convicted of the crime of rebellion, they
served their respective sentences.
The fifties saw a comparative lull in Communist activities, insofar as peace and order were
concerned. Still, on June 20, 1957, Republic Act No. 1700, otherwise known as the Anti-Subversion
Act, was approved, upon the grounds stated in the very preamble of said statute that
... the Communist Party of the Philippines, although purportedly a political party, is in fact an
organized conspiracy to overthrow the Government of the Republic of the Philippines, not only by
force and violence but also by deceit, subversion and other illegal means, for the purpose of
establishing in the Philippines a totalitarian regime subject to alien domination and control,
... the continued existence and activities of the Communist Party of the Philippines constitutes a
clear, present and grave danger to the security of the Philippines; and
... in the face of the organized, systematic and persistent subversion, national in scope but
international in direction, posed by the Communist Party of the Philippines and its activities, there is
urgent need for special legislation to cope with this continuing menace to the freedom and security of
the country ....
In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the Senate Ad
Hoc Committee of Seven copy of which Report was filed in these cases by the petitioners herein

The years following 1963 saw the successive emergence in the country of several mass
organizations, notably the Lapiang Manggagawa (now the Socialist Party of the Philippines) among
the workers, the Malayang Samahan ng mga Magsasaka (MASAKA) among the peasantry; the
Kabataang Makabayan (KM) among the youth/students; and the Movement for the Advancement of
Nationalism (MAN) among the intellectuals/professionals, the PKP has exerted all-out effort to
infiltrate, influence and utilize these organizations in promoting its radical brand of nationalism.
Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups, one of
which composed mainly of young radicals, constituting the Maoist faction reorganized the
Communist Party of the Philippines early in 1969 and established a New Peoples Army. This faction
adheres to the Maoist concept of the Protracted Peoples War or War of National Liberation. Its
Programme for a Peoples Democratic Revolution states, inter alia:
The Communist Party of the Philippines is determined to implement its general programme for a
peoples democratic revolution. All Filipino communists are ready to sacrifice their lives for the
worthy cause of achieving the new type of democracy, of building a new Philippines that is genuinely
and completely independent, democratic, united, just and prosperous ...
The central task of any revolutionary movement is to seize political power. The Communist Party of
the Philippines assumes this task at a time that both the international and national situations are
favorable, to taking the road of armed
revolution ...
In the year 1969, the NPA had according to the records of the Department of National Defense
conducted raids, resorted to kidnappings and taken part in other violent incidents numbering over
230, in which it inflicted 404 casualties, and, in turn, suffered 243 losses. In 1970, its record of
violent incidents was about the same, but the NPA casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists, whether they belong to the traditional
group or to the Maoist faction, believe that force and violence are indispensable to the attainment of
their main and ultimate objective, and act in accordance with such belief, although they disagree on
the means to be used at a given time and in a particular place; and (b) there is a New Peoples
Army, other, of course, than the Armed Forces of the Republic and antagonistic thereto. Such New
Peoples Army is per se proof of the existence of the rebellion, especially considering that its
establishment was announced publicly by the reorganized CPP. Such announcement is in the nature
of a public challenge to the duly constitution Authorities and may be likened to a declaration of war,
sufficient to establish a war status or a condition of belligerency even before the actual
commencement of hostilities.
We entertain therefore, no doubts about the existence of a sizeable group of men who have publicly
risen in arms to overthrow the Government and have thus been and still are engage in rebellion
against the Government of the Philippines.
WHEREAS, these lawless elements have to a considerable extent succeeded in impeding our duly
constituted authorities from performing their functions and discharging their duties and
responsibilities in accordance with our laws and our Constitution to the great damage, prejudice and
detriment of the people and the nation;
WHEREAS, it is evident that there is throughout the land a state of anarchy and lawlessness, chaos
and disorder, turmoil and destruction of a magnitude equivalent to an actual war between the forces
of our duly constituted Government and the New Peoples Army and their satellite organizations
because of the unmitigated forays, raids, ambuscades, assaults, violence, murders, assassinations,
acts of terror, deceits, coercions, threats, intimidations, treachery, machinations, arsons, plunders
and depredations committed and being committed by the aforesaid lawless elements who have
pledged to the whole nation that they will not stop their dastardly effort and scheme until and unless
they have fully attained their primary and ultimate purpose of forcibly seizing political and state
power in this country by overthrowing our present duly constituted Government, by destroying our
democratic way of life and our established secular and religious institutions and beliefs, and by
supplanting our existing political, social, economic, legal and moral order with an entirely new one
whose form of government, whose motion of individual rights and family relations, and whose
political, social, economic and moral precepts are based on the Marxist-Leninist-Maoist teachings
and beliefs;
WHEREAS, the Supreme Court in its said decision concluded that the unlawful activities of the
aforesaid lawless elements actually pose a clear, present and grave danger to public safety and the
security of the nation and in support of that conclusion found that:
... the Executive had information and reports subsequently confirmed, in many by the above-
mentioned Report of the Senate Ad Hoc Committee of Seven - to the effect that the Communist
Party of the Philippines does not merely adhere to Lenins idea of a swift armed uprising that it has,
also, adopted Ho Chi Minhs terrorist tactics and resorted to the assassination of uncooperative local
officials that, in line with this policy, the insurgents have killed 5 mayors, 20 barrio captains and 3
chiefs of police; that there were fourteen (14) meaningful bombing incidents in the Greater Manila
Area in 1970; that the Constitutional Convention Hall was bombed on June 12, 1971; that, soon after
the Plaza Miranda incident, the NAWASA main pipe at the Quezon City-San Juan boundary was
bombed; that this was followed closely by the bombing of the Manila City Hall, the COMELEC
Building, the Congress Building and the MERALCO sub-station at Cubao, Quezon City; and that the
respective residences of Senator Jose J. Roy and Congressman Eduardo Cojuangco were, likewise,
bombed, as were the MERALCO main office premises, along Ortigas Avenue, and the Doctors
Pharmaceuticals, Inc. Building, in Caloocan City.
... the reorganized Communist Party of the Philippines has, moreover, adopted Maos concept of
protracted peoples war, aimed at the paralyzation of the will to resist of the Government, of the
political, economic and intellectual leadership, and of the people themselves; that conformably to
such concept, the Party has placed special emphasis upon a most extensive and intensive program
of subversion be the establishment of front organizations in urban centers, the organization of armed
city partisans and the infiltration in student groups, labor unions, and farmer and professional
groups; that the CPP has managed to infiltrate or establish and control nine (9) major labor
organizations; that it has exploited the youth movement and succeeded in making Communist fronts
of eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30)
mass organizations actively advancing the CPP interests, among which are the Malayang Samahan
ng Magsasaka(MASAKA), the Kabataang Makabayan (KM), the Movement for the Advancement of
Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM)
and the Malayang Pagkakaisa ng Kabataang Pilipino (MPKP); that, as of August, 1971, the KM had
two hundred forty-five (245) operational chapters throughout the Philippines of which seventy-three
(73) were in the Greater Manila Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon,
forty-two (42) in the Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had
recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-three (33) ended
in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these
actions were organized, coordinated or led by the aforementioned front organizations; that the
violent demonstrations were generally instigated by a small, but well-trained group of armed
agitators; that the number of demonstrations heretofore staged in 1971 has already exceeded those
of 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of
fifteen (15) persons and the injury of many more.
Subsequent events ... have also proven ... the threat to public safety posed by the New Peoples
Army. Indeed, it appears that, since August 21, 1971, it had in Northern Luzon six (6) encounters
and staged one (1) raid, in consequences of which seven soldiers lost their lives and two (2) others
were wounded, whereas the insurgents suffered five (5) casualties; that on August 26, 1971, a well-
armed group of NPA, trained by defector Lt. Victor Corpus, attacked the very command post of TF
LAWIN in Isabela, destroying two (2) helicopters and one (1) plane, and wounding one (1) soldier;
that the NPA had in Central Luzon a total of four (4) encounters, with two (2) killed and three (3)
wounded on the side of the Government, one (1) BSDU killed and three (3) KMSDK leader, an
unidentified dissident, and Commander Panchito, leader of the dissident group were killed that on
August 26, 1971, there was an encounter in the barrio of San Pedro, Iriga City, Camarines Sur,
between the PC and the NPA, in which a PC and two (2) KM members were killed; that the current
disturbances in Cotabato and the Lanao provinces have been rendered more complex by the
involvement of the CPP/NPA, for, in mid-1971, a KM group, headed by Jovencio Esparagoza,
contacted the Higaonan tribes, in their settlement in Magsaysay, Misamis Oriental, and offered them
books, pamphlets and brochures of Mao Tse Tung, as well as conducted teach-ins in the
reservation; that Esparagoza was reportedly killed on September 22, 1971, in an operation of the PC
in said reservation; and that there are now two (2) NPA cadres in Mindanao.
It should, also be noted that adherents of the CPP and its front organizations are, according to
intelligence findings, definitely capable of preparing powerful explosives out of locally available
materials; that the bomb used in the Constitutional Convention Hall was a Claymore mine, a
powerful explosive device used by the U.S. Army, believed to have been one of many pilfered from
the Subic Naval Base a few days before; that the President had received intelligence information to
the effect that there was a July-August Plan involving a wave of assassinations, kidnappings,
terrorism and mass destruction of property and that an extraordinary occurrence would signal the
beginning of said event; that the rather serious condition of peace and order in Mindanao,
particularly in Cotabato and Lanao, demanded the presence therein of forces sufficient to cope with
the situation; that a sizeable part of our armed forces discharges other functions, and that the
expansion of the CPP activities from Central Luzon to other parts of the country, particularly Manila
and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and the Bicol Region,
required that the rest of our armed forces be spread thin over a wide area.
WHEREAS, in the unwavering prosecution of their revolutionary war against the Filipino people and
their duly constituted Government, the aforesaid lawless elements have, in the months of May, June
and July, 1972, succeeded in bringing and introducing into the country at Digoyo Point, Palanan,
Isabela and at other undetermined points along the Pacific coastline of Luzon, a substantial quantity
of war material consisting of M-14 rifles estimated to be some 3,500 pieces, several dozens of 40
mm rocket launchers which are said to be Chicom copies of a Russian prototype rocket launcher,
large quantities of 80 mm rockets and ammunitions, and other combat paraphernalia, of which war
material some had been discovered and captured by government military forces, and the bringing
and introduction of such quantity and type of war material into the country is a mute but eloquent
proof of the sinister plan of the aforesaid lawyers elements to hasten the escalation of their present
revolutionary war against the Filipino people and their legitimate Government;
WHEREAS, in the execution of their overall revolutionary plan, the aforesaid lawless elements have
prepared and released to their various field commanders and Party workers a document captioned
REGIONAL PROGRAM OF ACTION 1972, a copy of which was captured by elements of the 116th
and 119th Philippine Constabulary Companies on June 18, 1972 at Barrio Taringsing, Cordon,
Isabela, the text of which reads as follows:
REGIONAL PROGRAM OF ACTION 1972
The following Regional Program of Action 1972 is prepared to be carried out as part of the overall plan of the party
to foment discontent and precipitate the tide of nationwide mass revolution. The fascist Marcos and his reactionary
of Congress is expected to prepare themselves for the 1973 hence:
January June:
1. Intensify recruitment of new party members especially from the workers-farmers class. Cadres are
being trained in order to organize the different regional bureaus. These bureaus must concentrate on
mass action and organization to advancement of the mass revolutionary movement. Reference is to
the Borador ng Programa sa Pagkilos at Ulat ng Panlipunang Pagsisiyasat as approved by the
Central Committee.
2. Recruit and train armed city partisans and urban guerrillas and organize them into units under
Party cadres and activities of mass organizations. These units must undergo specialized training on
explosives and demolition and other and other forms of sabotage.
3. Intensify recruitment and training of new members for the New Peoples Army in preparation for
limited offensive in selected areas in the regions.
4. Support a more aggressive program of agitation and proraganda against the reactionary armed
forces and against the Con-Con.
July August:
During this period the Party expects the puppet Marcos government to allow increase in bus rates
thus aggravating further the plight of students, workers and the farmers.
1. All Regional Party Committees must plan for a general strike movement. The Regional
Operational Commands must plan for armed support if the fascist forces of Marcos will try to
intimidate the oppressed Filipino masses.
2. Conduct sabotage against schools, colleges and universities hiking tuition fees.
3. Conduct sabotage and agitation against puppet judges and courts hearing cases against top party
leaders.
4. Create regional chaos and disorder to dramatize the inability of the fascist Marcos Government to
keep and maintain peace and order thru:
a) Robbery and hold-up of banks controlled by American imperialists and those
belonging to the enemies of the people.
b) Attack military camps, US bases and towns.
c) More violent strikes and demonstrations.
September October:
Increase intensity of violence, disorder and confusion:
1. Intensify sabotage and bombing of government buildings and embassies and other utilities:
a) Congress.
b) Supreme Court.
c) Con-Con.
d) City Hall.
e) US Embassy.
f) Facilities of US Bases.
g) Provincial Capitols.
h) Power Plants.
i) PLDT.
j) Radio Stations.
2. Sporadic attacks on camps, towns and cities.
3. Assassinate high Government officials of Congress, Judiciary, Con-Con and private individuals
sympathetic to puppet Marcos.
4. Establish provisional revolutionary government in towns and cities with the support of the masses.
5. With the sympathetic support of our allies, establish provisional provincial revolutionary
governments.
CENTRAL COMMITTEE
COMMUNIST PARTY OF THE
PHILIPPINES
WHEREAS, in line with their REGIONAL PROGRAM OF ACTION 1972, the aforesaid lawless
elements have of late been conducting intensified acts of violence and terrorisms during the current
year in the Greater Manila Area such as the bombing of the Arca building at Taft Avenue, Pasay
City, on March 15; of the Filipinas Orient Airways board room at Domestic Road, Pasay City on April
23; of the Vietnamese Embassy on May 30; of the Court of Industrial Relations on June 23; of the
Philippine Trust Company branch office in Cubao, Quezon City on June 24; of the Philamlife building
at United Nations Avenue, Manila, on July 3; of the Tabacalera Cigar & Cigarette Factory Compound
at Marquez de Comillas, Manila on July 27; of the PLDT exchange office at East Avenue, Quezon
City, and of the Philippine Sugar Institute building at North Avenue, Diliman, Quezon City, both on
August 15; of the Department of Social Welfare building at San Rafael Street, Sampaloc, Manila, on
August 17; of a water main on Aurora Boulevard and Madison Avenue, Quezon City on August 19;
of the Philamlife building again on August 30; this time causing severe destruction on the Far East
Bank and Trust Company building nearby of the armored car and building of the Philippine Banking
Corporation as well as the buildings of the Investment Development, Inc. and the Daily Star
Publications when another explosion took place on Railroad Street, Port Area, Manila also on
August 30; of Joes Department Store on Cariedo Street, Quiapo, Manila, on September 5, causing
death to one woman and injuries to some 38 individuals; and of the City Hall of Manila on September
8; of the water mains in San Juan, Rizal on September 12; of the San Miguel Building in Makati,
Rizal on September 14; and of the Quezon City Hall on September 18, 1972, as well as the
attempted bombing of the Congress Building on July 18, when an unexploded bomb was found in
the Senate Publication Division and the attempted bombing of the Department of Foreign Affairs on
August 30;
WHEREAS, in line with the same REGIONAL PROGRAM OF ACTION 1972, the aforesaid lawless
elements have also fielded in the Greater Manila area several of their Sparrow Units or Simbad
Units to undertake liquidation missions against ranking government officials, military personnel and
prominent citizens and to further heighten the destructions and depredations already inflicted by
them upon our innocent people, all of which are being deliberately done to sow terror, fear and
chaos amongst our population and to make the Government look so helpless and incapable of
protecting the lives and property of our people;
WHEREAS, in addition to the above-described social disorder, there is also the equally serious
disorder in Mindanao and Sulu resulting from the unsettled conflict between certain elements of the
Christian and Muslim population of Mindanao and Sulu, between the Christian Ilagas and the
Muslim Barracudas, and between our Government troops, and certain lawless organizations such
as the Mindanao Independence Movement;
WHEREAS, the Mindanao Independence Movement with the active material and financial
assistance of foreign political and economic interests, is engaged in an open and unconcealed
attempt to establish by violence and force a separate and independent political state out of the
islands of Mindanao and Sulu which are historically, politically and by law parts of the territories and
within the jurisdiction and sovereignty of the Republic of the Philippines;
WHEREAS, because of the aforesaid disorder resulting from armed clashes, killings, massacres,
arsons, rapes, pillages, destruction of whole villages and towns and the inevitable cessation of
agricultural and industrial operations, all of which have been brought about by the violence inflicted
by the Christians, the Muslims, the Ilagas, the Barracudas, and the Mindanao Independence
Movement against each other and against our government troops, a great many parts of the islands
of Mindanao and Sulu are virtually now in a state of actual war;
WHEREAS, the violent disorder in Mindanao and Sulu has to date resulted in the killing of over
1,000 civilians and about 2,000 armed Muslims and Christians, not to mention the more than five
hundred thousand of injured displaced and homeless persons as well as the great number of
casualties among our government troops, and the paralyzation of the economy of Mindanao and
Sulu;
WHEREAS, because of the foregoing acts of armed insurrection, wanton destruction of human and
lives and property, unabated and unrestrained propaganda attacks against the Government and its
institutions, instrumentalities, agencies and officials, and the rapidly expanding ranks of the aforesaid
lawless elements, and because of the spreading lawlessness and anarchy throughout the land all of
which prevented the Government to exercise its authority, extend its citizenry the protection of its
laws and in general exercise its sovereignty overall of its territories, caused serious demoralization
among our people and have made the apprehensive and fearful, and finally because public order
and safety and the security of this nation demand that immediate, swift, decisive and effective action
be taken to protect and insure the peace, order and security of the country and its population and to
maintain the authority of the Government;
WHEREAS, in cases of invasion, insurrection or rebellion or imminent danger thereof, I, as President
of the Philippines, have under the Constitution, three course of action open to me, namely: (a) call
out the armed forces to suppress the present lawless violence; (b) suspend the privilege of the writ
ofhabeas corpus to make the arrest and apprehension of these lawless elements easier and more
effective; or (c) place the Philippines or any part thereof under martial law;
WHEREAS, I have already utilized the first two courses of action, first, by calling upon the armed
forces to suppress the aforesaid lawless violence, committing to that specific job almost 50% of the
entire armed forces of the country and creating several task forces for that purpose such as Task
Force Saranay, Task Force Palanan, Task Force Isarog, Task Force Pagkakaisa and Task Force
Lancaf and, second, by suspending the privilege of the writ of habeas corpus on August 21, 1971 up
to January 11, 1972, but in spite of all that, both courses of action were found inadequate and
ineffective to contain, much less solve, the present rebellion and lawlessness in the country as
shown by the fact that:
1. The radical left has increased the number and area of operation of its front organizations and has
intensified the recruitment and training of new adherents in the urban and rural areas especially from
among the youth;
2. The Kabataang Makabayan (KM), the most militant and outspoken front organization of the radical
left, has increased the number of its chapters from 200 as of the end of 1970 to 317 as of July 31,
1972 and its membership from 10,000 as of the end of 1970 to 15,000 as of the end of July, 1972,
showing very clearly the rapid growth of the communist movement in this country;
3. The Samahang Demokratiko ng Kabataan (SDK), another militant and outspoken front
organization of the radical left, has also increased the number of its chapters from an insignificant
number at the end of 1970 to 159 as of the end of July, 1972 and has now a membership of some
1,495 highly indoctrinated, intensely committed and almost fanatically devoted individuals;
4. The New Peoples Army, the most active and the most violent and ruthless military arm of the
radical left, has increased its total strength from an estimated 6,500 composed of 560 regulars,
1,500 combat support and 4,400 service support) as of January 1, 1972 to about 7,900 (composed
of 1,028 regulars, 1,800 combat support and 5,025 service support) as of July 31, 1972, showing a
marked increase in its regular troops of over 100% in such a short period of six months;
5. The establishment of sanctuaries for the insurgents in Isabela, in Zambales, in Camarines Sur,
and in some parts of Mindanao, a development heretofore unknown in our campaign against
subversion and insurgency in this country;
6. The disappearance and dropping out of school of some 3,000 high school and college students
and who are reported to have joined with the insurgents for training in the handling of firearms and
explosives;
7. The bringing and introduction into the country of substantial war material consisting of military
hardware and supplies through the MV Karagatan at Digoyo Point, Palanan, Isabela, and the fact
that many of these military hardware and supplies are now in the hands of the insurgents and are
being used against our Government troops;
8. The infiltration and control of the media by persons who are sympathetic to the insurgents and the
consequent intensification of their propaganda assault against the Government and the military
establishment of the Government;
9. The formation at the grass-root level of political power organs, heretofore unknown in the history
of the Communist movement in this country, composed of Barrio Organizing Committees (BOCs) to
mobilize the barrio people for active involvement in the revolution; the Barrio Revolutionary
Committees (BRCs) to act as local governments in barrios considered as CPP/NPA bailiwicks; the
Workers Organizing Committees (WOCs) to organize workers from all sectors; the School
Organizing Committees (SOCs) to conduct agitation and propaganda activities and help in the
expansion of front groups among the studentry; and the Community Organizing Committees (COCs)
which operate in the urban areas in the same manner as the (BOCs);
WHEREAS, the rebellion and armed action undertaken by these lawless elements of the communist
and other armed aggrupations organized to overthrow the Republic of the Philippines by armed
violence and force have assumed the magnitude of an actual state of war against our people and the
Republic of the Philippines;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place
the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in
my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines,
to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my direction.
In addition, I do hereby order that all persons presently detained, as well as all others who may
hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and
offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection
therewith, for crimes against national security and the law of nations, crimes against public order,
crimes involving usurpation of authority, rank, title and improper use of names, uniforms and
insignia, crimes committed by public officers, and for such other crimes as will be enumerated in
orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of
any decree, order or regulation promulgated by me personally or promulgated upon my direction
shall be kept under detention until otherwise ordered released by me or by my duly designated
representative.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.
Done in the City of Manila, this 21st day of September, in the year of Our Lord, nineteen hundred
and seventy-two,
(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines
On September 22, 1972 at 9 oclock in the evening, clearance for the implementation of the proclamation was
granted, and for with, the following general order, among others, was issued:
GENERAL ORDER NO. 2
(ORDERING THE SECRETARY OF NATIONAL DEFENSE TO ARREST THE PERSONS NAMED
IN THE ATTACHED LIST, AS WELL AS OTHER PERSONS WHO MAY HAVE COMMITTED
CRIMES AND OFFENSES ENUMERATED IN THE ORDER).
Pursuant to Proclamation No. 1081, dated September 21, 1972, in my capacity as Commander-in-
Chief of all the Armed Forces of the Philippines and for being active participants in the conspiracy
and state power in the country and to take over the Government by force, the extent of which has
now assumed the proportion of an actual war against our people and their legitimate Government
and in order to prevent them from further committing acts that are inimical or injurious to our people,
the Government and our national interest, I hereby order you as Secretary of National Defense to for
with arrest or cause the arrest and take into your custody the individuals named in the attached list
and to hold them until otherwise so ordered by me or by my duly designated representative.
Likewise, I do hereby order you to arrest and take into custody and to hold them until otherwise
ordered released by me or by my duly authorized representative, such persons as may have
committed crimes and offenses in furtherance or on the occasion of or incident to or in connection
with the crimes of insurrection or rebellion, as well as persons who have committed crimes against
national security and the law of nations, crimes against the fundamental laws of the state, crimes
against public order, crimes involving usurpation of authority, title, improper use of name, uniform
and insignia, including persons guilty of crimes as public officers, as well as those persons who may
have violated any decree or order promulgated by me personally or promulgated upon my direction.
Done in the City of Manila, this 22nd day of September, in the year of Our Lord, nineteen hundred
and seventy-two.
(SGD.) FERDINAND E. MARCOS PRESIDENT
REPUBLIC OF THE PHILIPPINES
In the list referred to in this order were the names, among others, of all the petitioners herein. Thus, from shortly
after midnight of September 22, 1972 until they were all apprehended, petitioners were taken one by one, either
from their homes or places of work, by officers and men of the Armed Forces of the Philippines, without the usual
warrant of arrest, and only upon orders of the respondent Secretary of National Defense directed to his co-
respondent, the Chief of Staff of the Armed Forces. They have been since then confined either at Camp Bonifacio,
Camp Crame or some other military camp, until, as earlier adverted to, they were released subject to certain
conditions, with the exception of petitioners Diokno and Aquino, who are still in custody up to the present.
The particular case of
petitioner, Aquino.
As regards petitioner Aquino, it appears from his allegations in his petition and supplemental petition for prohibition
in G. R. No. L-37364, already referred to earlier, (1) that on August 11, 1973, six criminal charges, for illegal
possession of firearms, etc., murder and violation of RA 1700 or the Anti-Subversion Act, were filed against him with
Military Commission No. 2, created under General Orders Nos. 8, 12 and 39, (2) that on August 28, 1973, the
President created, thru Administrative Order No. 355, a special committee to undertake the preliminary investigation
or reinvestigation of said charges, and (3) that he questions the legality of his prosecution in a military commission
instead of in a regular civilian court as well as the creation of the special committee, not only because of alleged
invalidity of Proclamation 1081 and General Order No. 2 and the orders authorizing the creation of military
commissions but also because Administrative Order No. 355 constitutes allegedly a denial of the equal protection of
the laws to him and to the others affected thereby.
From the procedural standpoint, these developments did not warrant the filing of a separate petition. A supplemental
petition in G.R. No. L-35546, wherein he is one of the petitioners, would have sufficed. But inasmuch as petitioner
Aquino has chosen to file an independent special civil action for prohibition in said G.R. No. L-37364 without
withdrawing his petition for habeas corpus in G.R. No. L-35546, We wish to make it clear that in this decision, the
Court is going to resolve, for purposes of the habeas corpus petition of said petitioner, only the issues he has raised
that are common with those of the rest of the petitioners in all these cases, thereby leaving for resolution in G.R. No.
L-37364 all the issues that are peculiar only to him. In other words, insofar as petitioner Aquino is concerned, the
Court will resolve in this decision the question of legality of his detention by virtue of Proclamation 1081 and General
Order No. 2, such that in G.R. No. L-37364, what will be resolved will be only the constitutional issues related to the
filing of charges against him with Military Commission No. 2, premised already on whatever will be the Courts
resolution in the instant cases regarding Proclamation 1081 and General Order
No. 2.
With respect to the other petitioners, none of them stands charged with any offense before any court or military
commission. In fact, they all contend that they have not committed any act for which they can be held criminally
liable.
Going back to the facts, it may be mentioned, at this juncture, that on the day Proclamation 1081 was signed, the
Congress of the Philippines was actually holding a special session scheduled to end on September 22, 1972. It had
been in uninterrupted session since its regular opening in January, 1972. Its regular session was adjourned on May
18, 1972, followed by three special session of thirty days each,
8
from May 19 to June 22, June 23 to July 27 and July
28 to August 31, and one special session of twenty days, from September 1 to September 22. As a matter of fact,
petitioner Aquino was in a conference of a joint committee of the Senate and the House of Representatives when he was
arrested in one of the rooms of the Hilton Hotel in Manila.
It must also be stated at this point that on November 30, 1972, the Constitutional Convention of 1971, which
convened on June 1, 1971 and had been in continuous session since then, approved a New Constitution; that on
January 17, 1973, Proclamation 1102 was issued proclaiming the ratification thereof; and that in the Ratification
Cases aforementioned, the Supreme Court rendered on March 31, 1973, a judgment holding that "there is no further
judicial obstacle to the New Constitution being considered in force and effect." Among the pertinent provisions of the
New Constitution is Section 3 (2) of Article XVII which reads thus:
(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the law of the land, and shall remain valid legal, binding, and
effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of
the incumbent President, or unless expressly and explicitly modified or repeated by the regular
National Assembly.
Before closing this narration of facts, it is relevant to state that relative to petitioner Dioknos motion to withdraw,
respondent filed under date of May 13, 1974 the following Manifestation:
COME NOW respondents, by the undersigned counsel, and to this Honorable Court respectfully submit this
manifestation:
1. In a Motion dated December 29, 1973 petitioner, through counsel, prayed for the withdrawal of the
above-entitled case, more particularly the pleadings filed therein, Respondents Comments dated
January 17, 1974, petitioners Reply dated March 7, 1974, and respondents Rejoinder dated March
27, 1974 were subsequently submitted to this Honorable Court:
2. The motion to withdraw has been used for propaganda purposes against the Government,
including the Supreme. Court Lately, the propaganda has been intensified and the detention of
petitioner and the pendency of his case in this Court have been exploited;
3. We are aware that the issues raised in this case are of the utmost gravity and delicacy. This is the
reason we said that the decision in these cases should be postponed until the emergency, which
called for the proclamation of martial law, is over. While this position is amply supported by
precedents and is based on sound policy considerations, we now feel that to protect the integrity of
government institutions, including this Court, from scurrilous propaganda now being waged with
relentlessness, it would be in the greater interest of the Nation to have the motion to withdraw
resolved and if denied, to have the petition itself decided;
4. This is not to say that the emergency is over, but only to express a judgment that in view of recent
tactics employed in the propaganda against the Government, it is preferable in the national interest
to have the issues stirred by this litigation settled in this forum. For, indeed, we must state and
reiterate that:
a. Pursuant to the Presidents constitutional powers, functions, and responsibilities in
a state of martial law, he periodically requires to be conducted a continuing
assessment of the factual situation which necessitated the promulgation of
Proclamation No. 1081 on September 21, 1972 and the continuation of martial law
through Proclamation No. 1104, dated January 17, 1973;
b. The Governments current and latest assessment of the situation, including
evidence of the subversive activities of various groups and individuals, indicates that
there are still pockets of actual armed insurrection and rebellion in certain parts of the
country. While in the major areas of the active rebellion the military challenge to the
Republic and its duly constituted Government has been overcome and effective
steps have been and are being taken to redress the centuries-old and deep-seated
causes upon which the fires of insurrection and rebellion have fed, the essential
process of rehabilitation and renascence is a slow and delicate process. On the basis
of said current assessment and of consultations with the people, the President
believes that the exigencies of the situation, the continued threat to peace, order, and
security, the dangers to stable government and to democratic processes and
institutions, the requirements of public safety, and the actual and imminent danger of
insurrection and rebellion all require the continuation of the exercise of powers
incident to martial law;
c. The majority of persons who had to be detained upon the proclamation of martial
law have been released and are now engaged in their normal pursuits. However, the
President has deemed that, considering the overall situation described above and in
view of adequate evidence which can not now be declassified, the continued
detention of certain individuals without the filing of formal charges in court for
subversive and other criminal acts is necessary in the interest of national security
and defense to enable the Government to successfully meet the grave threats of
rebellion and insurrection. In this regard, the Secretary of National Defense and his
authorized representatives have acted in accordance with guidelines relating to
national security which the President has prescribed.
Respectfully submitted.
Manila, Philippines, May 13, 1974.
(Vol. II, Rollo, L-35539.)
and that earlier, in connection with the issue of jurisdiction of the Supreme Court over the instant cases, the
respondents invoked General Orders Nos. 3 and 3-A reading, as follows:
GENERAL ORDER NO. 3
WHEREAS, martial law having been declared under Proclamation No. 1081, dated September 21,
1972 and is now in effect throughout the land;
WHEREAS, martial law, having been declared because of wanton destruction of lives and property,
widespread lawlessness and anarchy and chaos and disorder now prevailing throughout the country,
which condition has been brought about by groups of men who are actively engaged in a criminal
conspiracy to seize political and state power in the Philippines in order to take over the Government
by force and violence, they extent of which has now assumed the proportion of an actual war against
our people and their legitimate Government; and
WHEREAS, in order to make more effective the implementation of the aforesaid Proclamation No.
1081 without unduly affecting the operations of the Government, and in order to end the present
national emergency within the shortest possible time;
NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed Forces of
the Philippines, and pursuant to Proclamation No. 1081, dated September 21, 1972, do hereby order
that henceforth all executive departments, bureaus, offices, agencies and instrumentalities of the
National Government, government-owed or controlled corporations, as well as all governments of all
the provinces, cities, municipalities and barrios throughout the land shall continue to function under
their present officers and employees and in accordance with existing laws, until otherwise ordered
by me or by my duly designated representative.
I do hereby further order that the Judiciary shall continue to function in accordance with its present
organization and personnel, and shall try and decide in accordance with existing laws all criminal
and civil cases, except the following cases:
1. Those involving the validity, legality or constitutionality of any decree, order or acts issued,
promulgated or performed by me or by my duly designated representative pursuant to Proclamation
No. 1081, dated September 21, 1972.
2. Those involving the validity or constitutionality of any rules, orders, or acts issued, promulgated or
performed by public servants pursuant to decrees, orders, rules and regulations issued and
promulgated by me or by my duly designated representative pursuant to Proclamation No. 1081,
dated September 21, 1972.
3. Those involving crimes against national security and the law of nations.
4. Those involving crimes against the fundamental laws of the State.
5. Those involving crimes against public order.
6. Those crimes involving usurpation of authority, rank, title, and improper use of names, uniforms,
and insignia.
7. Those involving crimes committed by public officers.
Done in the City of Manila, this 22nd day of September, in the year of Our Lord, nineteen hundred and seventy-two.
(SGD.) FERDINAND E. MARCOS President Republic of the Philippines
GENERAL ORDER NO. 3-A .
Sub-paragraph 1 of the second paragraph of the dispositive portion of General Order No. 3, dated
September 22, 1972, is hereby amended to read as follows:
xxx xxx xxx
1. Those involving the validity, legality, or constitutionality of Proclamation No. 1081, dated
September 21, 1972, or of any decree, order or acts issued, promulgated or performed by me or by
my duly designated representative pursuant thereto.
xxx xxx xxx
Done in the City of Manila, this 24th day of September, in the year of Our Lord, nineteen hundred
and seventy-two.
(SGD.) FERDINAND E. MARCOS President
Republic of the Philippines
Likewise relevant are the issuance by the President on January 17, 1973 of Proclamation 1104 reading thus:
PROCLAMATION NO. 1104
DECLARING THE CONTINUATION OF MARTIAL LAW.
WHEREAS, Barangays (Citizens Assemblies) were created in barrios in municipalities and in
districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972,
composed of all persons who are residents of the barrio, district or ward for at least six months,
fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen
Assembly members kept by the barrio, district or ward secretary;
WHEREAS, the said Barangays were established precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunities for the citizenry to express
their views on important national issues;
WHEREAS, pursuant to Presidential Decree No. 86-A, dated January 5, 1973 and Presidential
Decree No. 86-B, dated January 7, 1973, the question was posed before the Barangays: Do you
want martial law to continue?
WHEREAS, fifteen million two hundred twenty-four thousand five hundred eighteen (15,224,518)
voted for the continuation of martial law as against only eight hundred forty-three thousand fifty-one
(843,051) who voted against it;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers in me vested by the Constitution, do hereby declare that martial law shall continue in
accordance with the needs of the time and the desire of the Filipino people.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and
seventy-three.
(SGD.) FERDINAND E. MARCOS President
Republic of the Philippines
and the holding of a referendum on July 27-28, 1973 which as evidenced by the COMELEC proclamation of August
3, 1973 resulted in the following:
Under the present constitution the President, if he so desires, can continue in office beyond 1973.
Do you want President Marcos to continue beyond 1973 and finish the reforms he has initiated
under Martial Law?
18,052,016 - YES
1,856,744 - NO
(Phil. Daily Express, August 4, 1973)
THE FUNDAMENTAL ISSUES
First of all, petitioners challenge the factual premises and constitutional sufficiency of Proclamation 1081. Invoking
the Constitution of 1935 under which it was issued, they vigorously maintain that "while there may be rebellion in
some remote as in Isabela, there is no basis for the nationwide imposition of martial law, since: (a) no large scale
rebellion or insurrection exists in the Philippines; (b) public safety does not require it, inasmuch as no department of
the civil government is shown to have been unable to open or function because of or due to, the activities of the
lawless elements described in the Proclamation; (c) the Executive has given the nation to understand and there
exists no evidence to the contrary that the armed forces can handle the situation without utilizing the
extraordinary of the President etc.; and (d) the problem in the Greater Manila Area ... where petitioners were seized
and arrested was, at the time martial law was, plain lawlessness and criminality." (pp. 69-70 Petitioners
Memorandum). In his supplemental petition, petitioner Diokno individually posits that especially these days, with the
improved conditions of peace and order, there is no more constitutional justification for the continuance of martial
law. In other words, petitioners question not only the constitutional sufficiency both in fact and in law of the
proclamation but also the legality of their detention and constraints, independently of any finding of validity of the
proclamation, while in his supplemental petition petitioner Diokno individually submits that the Court should declare
that it has already become illegal to continue the present martial law regime because the emergency for which it
was proclaimed, if it ever existed, has already ceased, as attested by various public and official declaration of no
less than the President himself. On the other hand, respondents would want the Court to lay its hands off the instant
petitions, claiming that under General Orders Nos. 3 and 3-A, aforequoted, the President has ordered that the
Judiciary shall not try and decide cases "involving the validity, legality or constitutionality" of Proclamation 1081 and
any order, decree or acts issued or done pursuant to said Proclamation. They contend most vehemently that this
Court has no jurisdiction to inquire into the factual bases of the proclamation, any question as to the propriety or
constitutional sufficiency of its issuance being, according to them, political and non-justiciable. They point out, in this
connection, that in the above-mentioned referendum of January 10-15, 1973 and more so in that of July 27-28,
1973, the sovereign people impressed their seal of approval on the continuation of martial law for as long as the
President may deem it wise to maintain the same. And on the assumption the Court can make an inquiry into the
factual bases of the Proclamation, they claim there was more than efficient justification for its issuance, in the light of
the criterion of arbitrariness sanctioned by Us in Lansang vs. Garcia, 42 SCRA 448. Respondents further maintain
that it is only by another official proclamation by the President, not by a declaration, that martial law may be lifted.
Additionally, in their answer of July 26, 1973 to petitioner Dioknos supplemental petition, respondents contend that
the express provisions of the above-quoted transitory provision of the New Constitution, have made indubitable that
Proclamation 1081 as well as all the impugned General Orders are constitutional and valid.
Thus, the fundamental questions presented for the Courts resolution are:
1. Does the Supreme Court have jurisdiction to resolve the merits of the instant petitions? Put differently, are not the
issues herein related to the propriety or constitutional sufficiency of the issuance of the Proclamation purely political,
which are not for the judiciary, but for the people and the political departments of the government to determine? And
viewed from existing jurisprudence in the Philippines, is not the doctrine laid down by this Court inLansang vs.
Garcia, supra, applicable to these cases?
2. Even assuming Lansang to be applicable, and on the basis of the criterion of arbitrariness sanctioned therein, can
it be said that the President acted arbitrarily, capriciously or whimsically in issuing Proclamation 1081?
3. Even assuming also that said proclamation was constitutionally issued, may not the Supreme Court declare upon
the facts of record and those judicially known to it now that the necessity for martial law originally found by the
President to exist has already ceased so as to make further continuance of the present martial law regime
unconstitutional?
4. Even assuming again that the placing of the country under martial law is constitutional until the President himself
declares otherwise, is there any legal justification for the arrest and detention as well as the other constraints upon
the individual liberties of the petitioners, and, in the affirmative, does such justification continue up to the present,
almost two years from the time of their apprehension, there being no criminal charges of any kind against them nor
any warrants of arrest for their apprehension duly issued pursuant to the procedure prescribed by law?
5. Finally, can there still be any doubt regarding the constitutionality of the issuance of Proclamation 1081 and all the
other proclamations and orders, decrees, instructions and acts of the President issued or done by him pursuant to
said Proclamation, considering that by the terms of Section 3 (2) of Article XVII of the Constitution of the Philippines
of 1973, "all proclamations, orders, decrees, instructions and acts promulgated, issued or done by the incumbent
President shall be part of the law of the land, and shall remain valid, legal, binding and effective" until revoked or
superseded by the incumbent President himself or by the regular National Assembly established under the same
Constitution?
I
THE ISSUE OF JURISDICTION
By its very nature, the issue of jurisdiction vigorously urged by the Solicitor General calls for prior resolution. Indeed,
whenever the authority of the Court to act is seriously challenged, it should not proceed any further until that
authority is clearly established. And it goes without saying that such authority may be found only in the existing laws
and/or the Constitution.
For a moment, however, there was a feeling among some members of the Court that the import of the transitory
provisions of the New Constitution referred to in the fifth above has made the issue of jurisdiction posed by the
question respondents of secondary importance, if not entirely academic. Until, upon further reflection, a consensus
emerged that for Us to declare that the transitory provision invoked has rendered moot and academic any
controversy as to the legality of the impugned acts of the President is to assume that the issue is justiciable, thereby
bypassing the very issue of jurisdiction. We are asked to resolve. We feel that while perhaps, such reliance on the
transitory provision referred to may legally suffice to dispose of the cases at bar, it cannot answer persistent queries
regarding the powers of the Supreme Court in a martial law situation. It would still leave unsettled a host of
controversies related to the continued exercise of extraordinary powers by the President. Withal, such assumption of
justiciability would leave the Court open to successive petitions asking that martial law be lifted, without Our having
resolved first the correctness of such assumption. Indeed, nothing short of a categorical and definite ruling of this
Court is imperative regarding the pretended non-justiciability of the issues herein, if the people are to know, as they
must, whether the present governmental order has legitimate constitutional foundations or it is supported by nothing
more than naked force and self-created stilts to keep it above the murky waters of unconstitutionality. Thus, it is but
proper that We tackle first the questions about the authority of the Court to entertain and decide these cases before
discussing the materiality and effects of the transitory provision relied upon by respondents.
As a matter of fact, it is not alone the matter of jurisdiction that We should decide. Beyond the purely legal issues
placed before Us by the parties, more fundamental problems are involved in these proceedings. There are all-
important matters which a historical decision like this cannot ignore on the pretext that Our duty in the premises is
exclusively judicial. Whether all the members of the Court like it or not, the Court has to play its indispensable and
decisive role in resolving the problems confronting our people in the critical circumstances in which they find
themselves. After all, we cannot dissociate ourselves from them, for we are Filipinos who must share the common
fate to which the denouement of the current situation will consign our nation. The priority issue before Us is whether
We will subject the assailed acts of the President to judicial scrutiny as to its factual bases or We will defer to his
findings predicated on evidence which are in the very nature of things officially available only to him, but in either
case, our people must know that Our decision has democratic foundations and conforms with the great principles for
which our nation exists.
The New Constitution itself is in a large sense a product of the political convulsion now shaking precariously the
unity of the nation. Upon the other hand, that those presently in authority had a hand in one way or another in its
formulation, approval and ratification can hardly be denied. To justify, therefore, the restraint upon the liberties of
petitioners through an exclusive reliance on the mandates of the new charter, albeit logically and technically tenable,
may not suffice to keep our people united in the faith that there is genuine democracy in the existing order and that
the rule of law still prevails in our land. Somehow the disturbing thought may keep lingering with some, if not with
many, of our countrymen that by predicating Our decision on the basis alone of what the New Constitution ordains,
We are in effect allowing those presently in authority the dubious privilege of legalizing their acts and exculpating
themselves from their supposed constitutional transgressions through a device which might yet have been of their
own furtive making.
Besides, We should not be as naive as to ignore that in troublous times like the present, simplistic solutions,
however solidly based, of constitutional controversies likely to have grave political consequences would not sound
cogent enough unless they ring in complete harmony with the tune set by the founders of our nation when they
solemnly consecrated it to the ideology they considered best conducive to the contentment and prosperity of all our
people. And the commitment of the Philippines to the ideals of democracy and freedom is ever evident and
indubitable. It is writ in the martyrdom of our revolutionary forbears when they violently overthrow the yoke of
Spanish dispotism. It is an indelible part of the history of our passionate and zealous observance of democratic
principles and practices during the more than four decades that America was with us. It is reaffirmed in bright
crimson in the blood and the lives of the countless Filipinos who fought and died in order that our country may not
be subjugated under the militarism and totalitarianism of the Japanese then, who were even enticing us with the
idea of a Greater East Asia Co-Prosperity Sphere. And today, that our people are showing considerable disposition
to suffer the imposition of martial law can only be explained by their belief that it is the last recourse to save
themselves from the inroads of ideologies antithetic to those they cherish and uphold.
Withal, the eyes of all the peoples of the world on both sides of the bamboo and iron curtains are focused on what
has been happening in our country since September 21, 1972. Martial law in any country has such awesome
implications that any nation under it is naturally an interesting study subject for the rest of mankind. Those who
consider themselves to be our ideological allies must be keeping apprehensive watch on how steadfastly we shall
remain living and cherishing our common fundamental political tenets and ways of life, whereas those of the
opposite ideology must be eagerly anticipating how soon we will join them in the conviction that, after all, real
progress and development cannot be achieved without giving up individual freedom and liberty and unless there is
concentration of power in the exercise of government authority. It is true the Philippines continues to enjoy
recognition of all the states with whom it had diplomatic relations before martial law was proclaimed but it is not
difficult to imagine that soon as it has became definite or anyway apparent to those concerned that the Philippines
has ceased to adhere to the immutable concepts of freedom and democracy enshrined in its own fundamental law
corresponding reactions would manifest themselves in the treatment that will be given us by these states.
In our chosen form of government, the Supreme Court is the department that most authoritatively speaks the
language of the Constitution. Hence, how the present martial law and the constraints upon the liberties of petitioners
can be justified under our Constitution which provides for a republican democratic government will be read by the
whole world in the considerations of this decision. From them they will know whither we are going as a nation. More
importantly, by the same token, history and the future generations of Filipinos will render their own judgment on all
of us who by the will of Divine Providence have to play our respective roles in this epochal chapter of our national
life. By this decision, everyone concerned will determine how truly or otherwise, the Philippines of today is keeping
faith with the fundamental precepts of democracy and liberty to which the nation has been irrevocably committed by
our heroes and martyrs since its birth.
And we should not gloss over the fact that petitioners have come to this Court for the protection of their rights under
the provisions of the Old Charter that have remained unaltered by the New Constitution. It would not be fair to them,
if the provisions invoked by them still mean what they had always meant before, to determine the fate of their
petitions on the basis merely of a transitory provision whose consistency with democratic principles they vigorously
challenge.
In this delicate period of our national life, when faith in each other and unity among all of the component elements of
our people are indispensable, We cannot treat the attitude and feelings of the petitioners, especially Senator
Diokno * who is still under detention without formal charges, with apathy and indifferent unconcern. Their pleadings evince quite distinctly an apprehensive, nay
a fast dwindling faith in the capacity of this Court to render them justice. Bluntly put, their pose is that the justice they seek may be found only in the correct
construction of the 1935 Constitution, and they make no secret of their fears that because the incumbent members of the Court have taken an oath to defend and
protect the New Constitution, their hopes of due protection under the Bill of Rights of the Old Charter may fall on deaf ears. Petitioner Diokno, in particular, with the
undisguised concurrence of his chief counsel, former Senator Taada, despairingly bewails that although they are "convinced beyond any nagging doubt that (they
are) on the side of right and reason and law and justice, (they are) equally convinced that (they) cannot reasonably expect either right or reason, law or justice, to
prevail in (these) case(s)."
To be sure, We do not feel bound to soothe the subjective despondency nor to cool down the infuriated feelings of
litigants and lawyers by means other than the sheer objectiveness and demonstrated technical accuracy of our
decisions. Under the peculiar milieu of these cases, however, it is perhaps best that We do not spare any effort to
make everyone see that in discharging the grave responsibility incumbent upon Us in the best light that God has
given Us to see it, We have explored every angle the parties have indicated and that We have exhausted all
jurisprudential resources within our command before arriving at our conclusions and rendering our verdict. In a way,
it could indeed be part of the nobility that should never be lost in any court of justice that no party before it is left
sulking with the thought that he lost because not all his important arguments in which he sincerely believes have
been duly considered or weighed in the balance.
But, of course, petitioners emotional misgivings are manifestly baseless. It is too evident for anyone to ignore that
the provisions of the Old Constitution petitioners are invoking remain unaltered in the New Constitution and that
when it comes to the basic precepts underlying the main portions of both fundamental laws, there is no disparity,
much less any antagonism between them, for in truth, they are the same identical tenets to which our country, our
government and our people have always been ineradicably committed. Insofar, therefore, as said provisions and
their underlying principles are concerned, the new oath taken by the members of the Court must be understood, not
in the disturbing sense petitioners take them, but rather as a continuing guarantee of the Justices unswerving fealty
and steadfast adherence to the self-same tenets and ideals of democracy and liberty embodied in the oaths of
loyalty they took with reference to the 1935 Constitution.
Contrary to what is obviously the erroneous impression of petitioner Diokno, the fundamental reason that impelled
the members of the Court to take the new oaths that are causing him unwarranted agony was precisely to regain
their independence from the Executive, inasmuch as the transitory provisions of the 1973 Constitution had, as a
matter of course, subjected the judiciary to the usual rules attendant in the reorganization of governments under a
new charter. Under Sections 9 and 10 of Article XVII, "incumbent members of the Judiciary may continue in office
until they reach the age of seventy years unless sooner replaced" by the President, but "all officials whose
appointments are by this Constitution vested in the (President) shall vacate their offices upon the appointment and
qualification of their successors." In other words, under said provisions, the Justices ceased to be permanent. And
that is precisely why our new oaths containing the phrase "na pinagpapatuloy sa panunungkulan", which petitioner
Diokno uncharitably ridicules ignoring its real import, was prepared by the Secretary of Justice in consultation with
the Court, and not by the President or any other subordinate in the Executive office, purposely to make sure that the
oath taking ceremony which was to be presided by the President himself would connote and signify that thereby, in
fact and in contemplation of law, the President has already exercised the power conferred upon him by the
aforequoted transitory constitutional provisions to replace anyone of us with a successor at anytime.
There was no Presidential edict at all for the Justices to take such an oath. The President informed the Court that he
was determined to restore the permanence of the respective tenures of its members, but there was a feeling that to
extend new appointments to them as successors to themselves would sound somehow absurd, And so, in a
conference among the President, the Secretary of Justice and all the Justices, a mutually acceptable construction of
the pertinent transitory provision was adopted to the effect that an official public announcement was to be made that
the incumbent Justices would be continued in their respective offices without any new appointment, but they would
take a fittingly worded oath the text of which was to be prepared in consultation between the Secretary of Justice
and the Court. Thus, by that oath taking, all the members of the Court, other than the Chief Justice and the three
new Associate Justices, who because of their new appointment are not affected by the transitory provisions, are
now equally permanent with them in their constitutional tenures, as officially and publicly announced by the
President himself on that occasion. Otherwise stated, the reorganization of the Supreme Court contemplated in the
transitory provisions referred to, which, incidentally was also a feature of the transitory provisions of the 1935
Constitution, albeit, limited then expressly to one year, (Section 4, Article XVI) has already been accomplished, and
all the Justices are now unreachably beyond the presidential prerogative either explicit or implicit in the terms of the
new transitory provisions.
It is, therefore, in these faith and spirit and with this understanding, supported with prayers for guidance of Divine
Providence, that We have deliberated and voted on the issues in these cases certainly, without any claim of
monopoly of wisdom and patriotism and of loyalty to all that is sacred to the Philippines and the Filipino people.
II
As already stated, the Governments insistent posture that the Supreme Court should abstain from inquiring into the
constitutional sufficiency of Proclamation 1081 is predicated on two fundamental grounds, namely, (1) that under
General Order No. 3, as amended by General Order No. 3-A, "the Judiciary(which includes the Supreme Court)
shall continue to function in accordance with its present organization and personnel, and shall try and decide in
accordance with existing laws all criminal and civil cases, except the following: 1. Those involving the validity,
legality or constitutionality of Proclamation 1081 dated September 21, 1972 or of any decree, order or acts issued,
promulgated or performed by (the President) or by (his) duly designated representative pursuant thereto," and (2)
the questions involved in these cases are political and non-justiciable and, therefore, outside the domain of judicial
inquiry.
A
GENERAL ORDERS NOS. 3 AND 3-A HAVE CEASED TO BE OPERATIVE INSOFAR AS THEY ENJOIN THE
JUDICIARY OF JURISDICTION OVER CASES INVOLVING THE VALIDITY OF THE PROCLAMATIONS,
ORDERS OR ACTS OF THE PRESIDENT.
Anent the first ground thus invoked by the respondents, it is not without importance to note that the Solicitor General
relies barely on the provisions of the general orders cited without elaborating as to how the Supreme Court can be
bound thereby. Considering that the totality of the judicial power is vested in the Court by no less than the
Constitution, both the Old and the New, the absence of any independent showing of how the President may by his
own fiat constitutionally declare or order otherwise is certainly significant. It may be that the Solicitor General
considered it more prudent to tone down any possible frontal clash with the Court, but as We see it, the simplistic
tenor of the Solicitor Generals defense must be due to the fact too well known to require any evidential proof that by
the Presidents own acts, publicized here and abroad, he had made it plainly understood that General Orders Nos. 3
and 3-A are no longer operative insofar as they were intended to divest the Judiciary of jurisdiction to pass on the
validity, legality or constitutionality of his acts under the aegis of martial law. In fact, according to the President, it
was upon his instructions given as early as September 24, 1972, soon after the filing of the present petitions, that
the Solicitor General submitted his return and answer to the writs We have issued herein. It is a matter of public
knowledge that the presidents repeated avowal of the Governments submission to the Court is being proudly
acclaimed as the distinctive characteristic of the so-called "martial law Philippine style", since such attitude
endowes it with the democratic flavor so dismally absent in the martial law prevailing in other countries of the world.
Accordingly, even if it were to be assumed at this juncture that by virtue of the transitory provision of the New
Constitution making all orders of the incumbent President part of the law of the land, General Orders Nos. 3 and 3-A
are valid, the position of the respondents on the present issue of jurisdiction based on said orders has been
rendered untenable by the very acts of the President, which in the words of the same transitory provision have
"modified, revoked or superseded" them. And in this connection, it is important to note that the transitory provision
just referred to textually says that the acts of the incumbent President shall "remain valid, legal, binding and effective
... unless modified, revoked or superseded by subsequent proclamations, orders, decrees, instructions or other acts
of the incumbent President, or unless expressly and explicitly modified, or repealed by the regular National
Assembly", thereby implying that the modificatory or revocatory acts of the president need not be as express and
explicit as in the case of the National Assembly. In other words, when it comes to acts of the President, mere
demonstrated inconsistency of his posterior acts with earlier ones would be enough for implied modification or
revocation to be effective, even if no statement is made by him to such effect.
Rationalizing his attitude in regard to the Supreme Court during martial law, President Marcos has the following to
say in his book entitled "Notes on the New Society of the Philippines":
Our martial law is unique in that it is based on the supremacy of the civilian authority over the military
and on complete submission to the decision of the Supreme Court, and most important of all, the
people. ... (p. 103).
xxx xxx xxx
Thus, upon the approval by the Constitutional Convention of a new Constitution, I organized the
barangays or village councils or citizens assemblies in the barrios (a barrio is the smallest political
unit in the Philippines). I directed the new Constitution to be submitted to the barangays or citizens
assemblies in a formal plebiscite from January 10 to 15, 1973. The barangays voted almost
unanimously to ratify the Constitution, continue with martial law and with the reforms of the New
Society.
This action was questioned in a petition filed before our Supreme Court in the cases
entitledJavellana vs. Executive Secretary et al, G.R. No. L-36143,36164, 36165, 36236 and 36283.
The issue raised was whether I had the power to call a plebiscite; whether I could proclaim the
ratification of the new Constitution. In raising this issue, the petitioners (who, incidentally, were
Liberals or political opposition leaders) raised the fundamental issue of the power of the President
under a proclamation of martial law to issue decrees.
Inasmuch as the issues in turn raised the question of the legitimacy of the entire Government and
also to meet the insistent suggestion that, in the event of an adverse decision, I proclaim a
revolutionary government, I decided to submit to tile jurisdiction of the Supreme Court as I had done
in the Lansang vs. Garcia case (already quoted) in 1971 when almost the same parties in interest
questioned my powers as President to suspend the privilege of the writ of habeas corpus. (Refer to
pp. 13-17.)
This would, at the same time, calm the fears of every cynic who had any misgivings about my
intentions and claimed that I was ready to set up a dictatorship. For who is the dictator who would
submit himself to a higher body like the Supreme Court on the question of the constitutionality or
validity of his actions? (pp. 103-104.)
xxx xxx xxx
It will be noted that I had submitted myself to the jurisdiction of the Supreme Court in all cases
questioning my authority in 1971 in the case of Lansang vs. Garcia on the question of the
suspension of the privilege of the writ of habeas corpus and in the case just cited on the
proclamation of martial law as well as the other related cases. (pp. 105-106.)
Nothing could be more indicative, than these words of the President himself, of his resolute intent to render General
Orders Nos. 3 and 3-A inoperative insofar as the Supreme Courts jurisdiction over cases involving the validity,
legality or constitutionality of his acts are concerned. Actually, the tenor and purpose of the said general orders are
standard in martial law proclamations, and the Presidents attitude is more of an exception to the general practice.
Be that as it may, with this development, petitioners have no reason to charge that there is a "disrobing" of the
Supreme Court. But even as the President unequivocally reaffirms, over and above martial law, his respect for the
Supreme Courts constitutionally assigned role as the guardian of the Constitution and as the final authority as to its
correct interpretation and construction, it is entirely up to the Court to determine and define its own constitutional
prerogatives vis-a-vis the proclamation and the existing martial law situation, given the reasons for the declaration
and its avowed objectives. .
B
MAY THE SUPREME COURT INQUIRE INTO THE FACTUAL BASES OF THE ISSUANCE OF PROCLAMATION
1081 TO DETERMINE ITS CONSTITUTIONAL SUFFICIENCY?
The second ground vigorously urged by the Solicitor General is more fundamental, since, prescinding from the force
of the general orders just discussed, it strikes at the very core of the judicial power vested in the Court by the people
thru the Constitution. It is claimed that insofar as the instant petitions impugn the issuance of Proclamation 1081 as
having been issued by the President in excess of his constitutional authority, they raise a political question not
subject to inquiry by the courts. And with reference to the plea of the petitioners that their arrest, detention and other
restraints, without any charges or warrants duly issued by the proper judge, constitute clear violations of their rights
guaranteed by the fundamental law, the stand of the respondents is that the privilege of the writ of habeas
corpus has been suspended automatically in consequence of the imposition of martial law, the propriety of which is
left by the Constitution to the exclusive discretion of the President, such that for the proper exercise of that discretion
he is accountable only to the sovereign people, either directly at the polls or thru their representatives by
impeachment.
Never before has the Supreme Court of the Philippines been confronted with a problem of such transcendental
consequences and implications as the present one entails. There is here an exertion of extreme state power
involving the proclaimed assumption of the totality of government authority by the Executive, predicated on his own
declaration that a state of rebellion assuming "the magnitude of an actual state of war against our people and the
Republic of the Philippines" exists (22nd whereas of Proclamation 1081) and that "the public order and safety and
the security of this nation demand that immediate, swift, decisive and effective action be taken to protect and insure
the peace, order and security of the country and its population and to maintain the authority of the government."
(19th whereas, id.) Upon the other hand, petitioners deny the factual bases of the Proclamation and insist that it is
incumbent upon the Court, in the name of democracy, liberty and the constitution, to inquire into the veracity thereof
and to declare, upon finding them to be untrue, that the proclamation is unconstitutional and void. Respondents
counter however, that the very nature of the proclamation demands but the court should refrain from making any
such inquiry, considering that, as already stated, the discretion as to whether or not martial law should be imposed
is lodged by the Constitution in the President exclusively.
As We enter the extremely delicate task of resolving the grave issues thus thrust upon Us, We are immediately
encountered by absolute verities to guide Us all the way. The first and most important of them is that the
Constitution
9
is the supreme law of the land. This means among others things all the powers of the government and of all
its officials from the President down to the lowest emanate from it. None of them may exercise any power unless it can be
traced thereto either textually or by natural and logical implication.
The second is that it is settled that the Judiciary provisions of the Constitution point to the Supreme Court as the
ultimate arbiter of all conflicts as to what the Constitution or any part thereof means. While the other Departments
may adopt their own construction thereof, when such construction is challenged by the proper party in an
appropriate case wherein a decision would be impossible without determining the correct construction, the Supreme
Courts word on the matter controls.
The third is that in the same way that the Supreme Court is the designated guardian of the Constitution, the
President is the specifically assigned protector of the safety, tranquility and territorial integrity of the nation. This
responsibility of the President is his alone and may not be shared by any other Department.
The fourth is that, to the end just stated, the Constitution expressly provides that "in case of invasion, insurrection or
rebellion or imminent danger thereof, when the public safety requires it, he (the Executive) "may (as a last resort) ...
place the Philippines or any part thereof under martial law".
10
The fifth is that in the same manner that the Executive power conferred upon the Executive by the Constitution is
complete, total and unlimited, so also, the judicial power vested in the Supreme Court and the inferior courts, is the
very whole of that power, without any limitation or qualification.
The sixth is that although the Bill of Rights in the Constitution strictly ordains that "no person shall be deprived of life,
liberty or property without due process of law",
11
even this basic guarantee of protection readily reveals that the
Constitutions concern for individual rights and liberties is not entirely above that for the national interests, since the
deprivation it enjoins is only that which is without due process of law, and laws are always enacted in the national interest
or to promote and safeguard the general welfare. Of course, it is understood that the law thus passed, whether procedural
or substantive, must afford the party concerned the basic elements of justice, such as the right to be heard, confrontation,
and counsel, inter alia.
And the seventh is that whereas the Bill of Rights of the 1935 Constitution explicitly enjoins that "(T)he privilege of
the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or rebellion, when the
public safety requires it, in any of which events the same may be suspended wherever during such period the
necessity for such suspension shall exist",
12
there is no similar injunction whether expressed or implied against the
declaration of martial law.
From these incontrovertible postulates, it results, first of all, that the main question before Us is not in reality one of
jurisdiction, for there can be no conceivable controversy, especially one involving a conflict as to the correct
construction of the Constitution, that is not contemplated to be within the judicial authority of the courts to hear and
decide. The judicial power of the courts being unlimited and unqualified, it extends over all situations that call for the
ascertainment and protection of the rights of any party allegedly violated, even when the alleged violator is the
highest official of the land or the government itself. It is, therefore, evident that the Courts jurisdiction to take
cognizance of and to decide the instant petitions on their merits is beyond challenge.
In this connection, however, it must be borne in mind that in the form of government envisaged by the framers of the
Constitution and adopted by our people, the Courts indisputable and plenary authority to decide does not
necessarily impose upon it the duty to interpose its fiat as the only means of settling the conflicting claims of the
parties before it. It is ingrained in the distribution of powers in the fundamental law that hand in hand with the vesting
of the judicial power upon the Court, the Constitution has coevally conferred upon it the discretion to determine, in
consideration of the constitutional prerogatives granted to the other Departments, when to refrain from imposing
judicial solutions and instead defer to the judgment of the latter. It is in the very nature of republican governments
that certain matters are left in the residual power of the people themselves to resolve, either directly at the polls or
thru their elected representatives in the political Departments of the government. And these reserved matters are
easily distinguishable by their very nature, when one studiously considers the basic junctions and responsibilities
entrusted by the charter to each of the great Departments of the government. To cite an obvious example, the
protection, defense and preservation of the state against internal or external aggression threatening its veiny
existence is far from being within the ambit of judicial responsibility. The distinct role then of the Supreme Court of
being the final arbiter in the determination of constitutional controversies does not have to be asserted in such
contemplated situations, thereby to give way to the ultimate prerogative of the people articulated thru suffrage or
thru the acts of their political representatives they have elected for the purpose.
Indeed, these fundamental considerations are the ones that lie at the base of what is known in American
constitutional law as the political question doctrine, which in that jurisdiction is unquestionably deemed to be part
and parcel of the rule of law, exactly like its apparently more attractive or popular opposite, judicial activism, which is
the fullest exertion of judicial power upon the theory that unless the courts intervene injustice might prevail. It has
been invoked and applied by this Court in varied forms and modes of projection in several momentous instances in
the past,
13
and it is the main support of the stand of the Solicitor General on the issue of jurisdiction in the case at bar. It
is also referred to as the doctrine of judicial self-restraint or abstention. But as the nomenclatures themselves imply,
activism and self-restraint are both subjective attitudes, not inherent imperatives. The choice of alternatives in any
particular eventuality is naturally dictated by what in the Courts considered opinion is what the Constitution envisions
should be done in order to accomplish the objectives of government and of nationhood. And perhaps it may be added
here to avoid confusion of concepts, that We are not losing sight of the traditional approach based on the doctrine of
separation of powers. In truth, We perceive that even under such mode of rationalization, the existence of power is
secondary, respect for the acts of a coordinate, co-equal and co-independent Department being the general rule,
particularly when the issue is not encroachment of delimited areas of functions but alleged abuse of a Departments own
basic prerogatives.
In the final analysis, therefore, We need not indulge in any further discussion as to whether or not the Court has
jurisdiction over the merits of the instant petitions. It is definite that it has. Rather, the real question before Us is
whether or not the Court should act on them. Stated differently, do We have here that appropriate occasion for
activism on the part of the Court, or, do the imperatives of the situation demand, in the light of the reservations in the
fundamental law just discussed, that We defer to the political decision of the Executive? After mature deliberation,
and taking all relevant circumstances into account, We are convinced that the Court should abstain in regard to what
is in all probability the most important issue raised in them, namely, whether or not the Court should inquire into the
constitutional sufficiency of Proclamation 1081 by receiving evidence tending to belie the factual premises thereof. It
is Our considered view that under the Constitution, the discretion to determine ultimately whether or not the
Philippines or any part thereof should be placed under martial law and for how long is lodged exclusively in the
Executive, and for this reason, it is best that We defer to his judgment as regards the existence of the grounds
therefor, since, after all, it is not expected that the Supreme Court should share with him the delicate constitutional
responsibility of defending the safety, security, tranquility and territorial integrity of the nation in the face of a
rebellion or invasion. This is not abdication of judicial power, much less a violation of Our oaths "to support and
defend the Constitution"; rather, this is deference to an act of the Executive which, in Our well-considered view, the
Constitution contemplates the Court should refrain from reviewing or interfering with. To Our mind, the following
considerations, inter alia, impel no other conclusion:
1
It has been said that martial law has no generally accepted definition, much less a precise meaning. But as We see
it, no matter how variously it has been described, a common element is plainly recognizable in whatever has been
said about it it does not involve executive power alone. To be more exact, martial law is state power which
involves the totality of government authority, irrespective of the Department or official by whom it is administered.
This is because, as admitted by all, martial law is every governments substitute for the established governmental
machinery rendered inoperative by the emergency that brings it forth, in order to maintain whatever legal and social
order is possible during the period of emergency, while the government is engaged in battle with the enemy.
Otherwise, with the breakdown of the regular government authority or the inability of the usual offices and officials to
perform their functions without endangering the safety of all concerned, anarchy and chaos are bound to prevail and
protection of life and property would be nil. What is worse, the confusion and disorder would detract the defense
efforts. It is indispensable therefore that some kind of government must go on, and martial law appears to be the
logical alternative. Hence, from the point of view of safeguarding the people against possible governmental abuses,
it is not the declaration of martial law and who actually administers it that is of supreme importance. Someone has of
necessity to be in command as surrogate of the whole embattled government. It is what is actually done by the
administrator affecting individual rights and liberties that must pass constitutional standards, even as these are
correspondingly adjusted to suit the necessities of the situation. But this is not to say that redress of constitutional
offenses would immediately and necessarily be available, for even the procedure for securing redress, its form and
time must depend on what such necessities will permit. Viewed in depth, this is all that can be visualized as
contemplated in the supposedly fundamental principle invoked by petitioners to the effect that necessity and
necessity alone is the justification and the measure of the powers that may be exercised under martial law.
2
In countries where there is no constitutional provision sanctioning the imposition of martial law, the power to declare
or proclaim the same is nevertheless conceded to be the most vital inherent prerogative of the state because it is
axiomatic that the right of the state to defend itself against disintegration or subjugation by another cannot be less
than an individuals natural right of self-defense. The resulting repression or restraint of individual rights is therefore
justified as the natural contribution that the individual owes to the state, so that the government under which he lives
may survive. After all, such subordination to the general interest is supposed to be temporary, coincident only with
the requirements of the emergency.
At the same time, under the general practice in those countries, it is considered as nothing but logical that the
declaration or proclamation should be made by the Executive. So it is that none of the cases cited by petitioners,
including those of Hearon vs. Calus 183, S.E. 24 and Allen vs. Oklahoma City, 52 Pac. Rep. 2nd Series, pp. 1054-
1059, may be deemed as a binding precedent sustaining definitely that it is in the power of the courts to declare an
Executives proclamation or declaration of martial law in case of rebellion or insurrection to be unconstitutional and
unauthorized. Our own research has not yielded any jurisprudence upholding the contention of petitioners on this
point. What is clear and incontrovertible from all the cases cited by both parties is that the power of the Executive to
proclaim martial law in case of rebellion has never been challenged, not to say outlawed. It has always been
assumed, even if the extent of the authority that may be exercise under it has been subjected to the applicable
provision of the constitution, with some courts holding that the enforceability of the fundamental law within the area
of the martial law regime is unqualified, and the others maintaining that such enforceability must be commensurate
with the demands of the emergency situation. In other words, there is actually no authoritative jurisprudential rule for
Us to follow in respect to the specific question of whether or not the Executives determination of the necessity to
impose martial law during a rebellion is reviewable by the judiciary. If We have to go via the precedential route, the
most that We can find is that the legality of an Executives exercise of the power to proclaim martial law has never
been passed upon by any court in a categorical manner so as to leave no room for doubt or speculation.
3
In the Philippines, We do not have to resort to assumptions regarding any inherent power of the government to
proclaim a state of martial law. What is an implied inherent prerogative of the government in other countries is
explicitly conferred by our people to the government in unequivocal terms in the fundamental law. More importantly
in this connection, it is to the Executive that the authority is specifically granted "in cases of invasion, insurrection or
rebellion, when public safety requires it", to "place the Philippines or any part thereof under Martial Law". To be sure,
petitioners admit that much. But they insist on trying to show that the factual premises of the Proclamation are not
entirely true and are, in any event, constitutionally insufficient. They urge the Court to pass on the merits of this
particular proposition of fact and of law in their petitions and to order thereafter the nullification and setting aside
thereof.
We do not believe the Court should interfere.
The pertinent constitutional provision is explicit and unequivocal. It reads as follows:
(2) The President shall be commander-in-chief of all armed forces of the Philippines and, whenever
it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence,
invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger
thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas
corpus, or place the Philippines or any part thereof under martial law (Section 10(2), Article VII, 1935
Constitution.)
(3) SEC. 12. The prime Minister shall be commander-in-chief of all armed forces of the Philippines
and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or
imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under martial (Section 12, Article IX,
1973 Constitution.)
Except for the reference to the Prime Minister in the New Constitution instead of to the President as in the Old, the
wording of the provision has remained unaltered ipssissimis verbis Accordingly, the two Constitutions cannot vary in
meaning, they should be construed and applied in the light of exactly the same considerations. In this sense at least,
petitioners invocation of the 1935 Constitution has not been rendered academic by the enforcement of the new
charter. For the purposes of these cases, We will in the main consider their arguments as if there has been no
Javellana decision.
Now, since in those countries where martial law is an extra-constitutional concept, the Executives proclamation
thereof, as observed above, has never been considered as offensive to the fundamental law, whether written or
unwritten, and, in fact, not even challenged, what reason can there be that here in the Philippines, wherein the
Constitution directly and definitely commits the power to the Executive, another rule should obtain? Are we Filipinos
so incapable of electing an Executive we can trust not to unceremoniously cast aside his constitutionally worded
oath solemnly and emphatically imposing upon him the duty "to defend and protect the Constitution"? Or is the
Court to be persuaded by possible partisan prejudice or the subjective rationalization informing personal ambitions?
Reserving for further discussion the effect of Lansang upon the compelling force of the opinions in Barcelon vs.
Baker, 5 Phil. 87 and Montenegro vs. Castaeda, 91 Phil. 862, relative to the issue at hand, We cannot lightly
disregard the ponderous reasons discussed in said opinions supporting the view that the Executives choice of
means in dealing with a f rebellion should be conclusive. In Barcelon, this Court said:
Thus the question is squarely presented whether or not the judicial department of the Government
may investigate the facts upon which the legislative and executive branches of the Government
acted in providing for the suspension and in actually suspending the privilege of the writ of habeas
corpusin said provinces. Has the Governor-General, with the consent of the Commission, the right to
suspend the privilege of the writ of habeas corpus? If so, did the Governor-General suspend the writ
of habeas corpus in the Provinces of Cavite and Batangas in accordance with such authority?
A paragraph of section 5 of the act of Congress of July 1, 1902, provides:
That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of
rebellion, insurrection, or invasion the public safety may require it, in either of which events the same
may be suspended by the President, or by the Governor-General with the approval of the Philippine
Commission, whenever during such period the necessity for such suspension shall exist.
This provision of the act of Congress is the only provision giving the Governor-General and the
Philippine Commission authority to suspend the privilege of the writ of habeas corpus. No question
has been raised with reference to the authority of Congress to confer this authority upon the
President or the Governor-General of these Islands, with the approval of the Philippine Commission.
This provision of the act of Congress makes two conditions necessary in order that the President or
the Governor-General with the approval of the Philippine Commission may suspend the privilege of
the writ of habeas corpus. They are as follows:
(1) When there exists rebellion, insurrection, or invasion; and
(2) When public safety may require it.
In other words, in order that the privilege of the writ of habeas corpus may be suspended, there must
exist rebellion, insurrection, or invasion, and the public safety must require it. This fact is admitted,
but the question is, Who shall determine whether there exists a state of rebellion, insurrection, or
invasion, and that by reason thereof the public safety requires the suspension of the privilege of the
writ of habeas corpus?
It has been argued and admitted that the Governor-General, with the approval of the Philippine
Commission, has discretion, when insurrection, rebellion, or invasion actually exist, to decide
whether the public safety requires the suspension of the privilege of the writ of habeas corpus; but
the fact whether insurrection, rebellion, or invasion does actually exist is an open question, which the
judicial department of the Government may inquire into and that the conclusions of the legislative
and executive departments (the Philippine Commission and the Governor-General) of the
Government are not conclusive upon that question.
In other words, it is contended that the judicial department of the Government may consider an
application for the writ of habeas corpus even though the privileges of the same have been
suspended, in the manner provided by law, for the purposes of taking proof upon the question
whether there actually exists a state of insurrection, rebellion, or invasion.
The applicants here admit that if a state of rebellion, insurrection, or invasion exists, and the public
safety is in danger , then the President, or Governor-General with the approval of the Philippine
Commission, may suspend the privilege of the writ of habeas corpus.
Inasmuch as the President, or Governor-General with the approval of the Philippine Commission,
can suspend the privilege of the writ of habeas corpus only under the conditions mentioned in the
said statute, it becomes their duty to make an investigation of the existing conditions in the
Archipelago, or any part thereof, to ascertain whether there actually exists a state of rebellion,
insurrection, or invasion, and that the public safety requires the suspension of the privilege of the writ
of habeas corpus. When this investigation is concluded, the President, or the Governor-General with
the consent of the Philippine Commission, declares that there exist these conditions, and that the
public safety requires the suspension of the privilege of the writ of habeas corpus, can the judicial
department of the Government investigate the same facts and declare that no such conditions exist?
The act of Congress, above quoted, wisely provides for the investigation by two departments of the
Government the legislative and executive of the existing conditions, and joint action by the two
before the privilege of the writ of habeas corpus can be suspended in these Islands.
If the investigation and findings of the President, or the Governor-General with the approval of the
Philippine Commission, are not conclusive and final as against the judicial department of the
Government, then every officer whose duty it is to maintain order and protect the lives and property
of the people may refuse to act, and apply to the judicial department of the Government for another
investigation and conclusion concerning the same conditions, to the end that they may be protected
against civil actions resulting from illegal acts.
Owing to conditions at times, a state of insurrection, rebellion, or invasion may arise suddenly and
may jeopardize the very existence of the State. Suppose, for example, that one of the thickly
populated Governments situated near this Archipelago, anxious to extend its power and territory,
should suddenly decide to invade these Islands, and should, without warning, appear in one of the
remote harbors with a powerful fleet and at once begin to land troops. The governor or military
commander of the particular district or province notifies the Governor-General by telegraph (If this
landing of troops and that the people of the district are in collusion with such invasion. Might not the
Governor-General and the Commission accept this telegram as sufficient evidence and proof of the
facts communicated and at once take steps, even to the extent of suspending the privilege of the writ
of habeas corpus, as might appear to them to be necessary to repel such invasion? It seems that all
men interested in the maintainance and stability of the Government would answer this question in
the affirmative.
But suppose some one, who has been arrested in the district upon the ground that his detention
would assist in restoring order and in repelling the invasion, applies for the writ of habeas corpus,
alleging that no invasion actually exists; may the judicial department of the Government call the
officers actually engaged in the field before it and away from their posts of duty for the purpose of
explaining and furnishing proof to it concerning the existence or non-existence of the facts
proclaimed to exist by the legislative and executive branches of the State? If so, then the courts may
effectually tie the hands of the executive, whose special duty it is to enforce the laws and maintain
order, until the invaders have actually accomplished their purpose. The interpretation contended for
here by the applicants, so pregnant with detrimental results, could not have been intended by the
Congress of the United States when it enacted the law.
It is the duty of the legislative branch of the Government to make such laws and regulations as will
effectually conserve peace and good order and protect the lives and property of the citizens of the
State. It is the duty of the Governor-General to take such steps as he deems wise and necessary for
the purpose of enforcing such laws. Every delay and hindrance and obstacle which prevents a strict
enforcement of laws under the conditions mentioned necessarily tends to jeopardize public interests
and the safety of the whole people. If the judicial department of the Government, or any officer in the
Government, has a right to contest the orders of the President or of the Governor-General under the
conditions above supposed, before complying with such orders, then the hands of the President or
the Governor-General may be tied until the very object of the rebels or insurrections or invaders has
been accomplished. But it is urged that the President, or the Governor-General with the approval of
the Philippine Commission, might be mistaken as to the actual conditions; that the legislative
department the Philippine Commission might, by resolution, declare after investigation, that a
state of rebellion, insurrection, or invasion exists, and that the public safety requires the suspension
of the privilege of the writ of habeas corpus, when, as a matter of fact, no such conditions actually
existed; that the President, or Governor-General acting upon the authority of the Philippine
Commission, might by proclamation suspend the privilege of the writ of habeas corpus without there
actually existing the conditions mentioned in the act of Congress. In other words, the applicants
allege in their argument in support of their application for the writ of habeas corpus, that the
legislative and executive branches of the Government might reach a wrong conclusion from their
investigations of the actual conditions, or might, through a desire to oppress and harass the people,
declare that a state of rebellion, insurrection, or invasion existed and that public safety required the
suspension of the privilege of the writ of habeas corpus when actually and in fact no such conditions
did exist. We can not assume that the legislative and executive branches will act or take any action
based upon such motives.
Moreover it can not be assumed that the legislative and executive branches of the Government, with
all the machinery which those branches have at their command for examining into the conditions in
any part of the Archipelago, will fail to obtain all existing information concerning actual conditions. It
is the duty of the executive branch of the Government to constantly inform the legislative branch of
the Government of the condition of the Union as to the prevalence of peace and disorder. The
executive branch of the Government, through its numerous branches of the civil and military,
ramifies every portion of the Archipelago, and is enabled thereby to obtain information from every
quarter and corner of the State. Can the judicial department of the government, with its very limited
machinery for the purpose of investigating general conditions, be any more sure of ascertaining the
true conditions throughout the Archipelago, or in any particular district, than the other branches of
the government? We think not. (At p. 91-96.)
xxx xxx xxx
The same general question presented here was presented to the Supreme Court of the United States in the case
of Martin vs. Mott, in January, 1827. An act of Congress of 1795 provided
That whenever the United States shall be invaded or be in imminent danger of invasion from any
foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such
number of the militia of the State or States most convenient to the place of danger or scene of
action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose to
such officer or officers of the militia as he shall think proper.
In this case (Martin vs. Mott) the question was presented to the court whether or not the Presidents
action in calling out the militia was conclusive against the courts. The Supreme Court of the United
States, in answering this question, said: .
The power thus confided by Congress to the President is, doubtless, of a very high and delicate
nature. A free people are naturally jealous of the exercise of military power; and the power to call the
militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power
which can be executed without corresponding responsibility. It is, in its terms, a limited power,
confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the
question arises, By whom is the exigency to be adjudged of and decided? Is the President the sole
and exclusive judge whether the exigency has arisen, or is it to be considered as an open question,
upon which every officer to whom the orders of the President are addressed, may decide for himself,
and equally open to be contested by very militiaman who shall refuse to obey the orders of the
President? We are all of the opinion that the authority to decide whether the exigency has arisen
belongs exclusively to the President and his decision is conclusive upon all other persons. We think
that this construction necessarily results from the nature of the power itself and from the manifest
object contemplated by the act of Congress. The power itself is to be exercised upon sudden
emergencies, upon great occasions of state and under circumstances which may be vital to the
existence of the Union. ... If a superior officer has a right to contest the orders of the President, upon
his own doubts as to the exigency having arisen, it must be equally the right of every inferior officer
and soldier .... Such a course would be subversive of all discipline and expose the best disposed
officer to the chances of erroneous litigation. Besides, in many instances, the evidence upon which
the President might decide that there is imminent danger of invasion might be of a nature not
constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of
state which the public interest and even safety might imperiously demand to be kept in concealment.
Whenever the statute gives a discretionary power to any person, to be exercised by him upon his
own opinion of certain facts it is a sound rule of construction that the statute constitutes him the sole
and exclusive judge of the existence of those facts. And in the present case we are all of opinion that
such is the true construction of the act of 1795. It is no answer that such power may be abused, for
there is no power which is not susceptible of abuse. (Martin vs. Mott, 12 Wheat., 19 (25 U.S.);
Vanderheyden vs. Young, 11 Johns., N.Y. 150.)
Justice Joseph Story for many years a member of the Supreme Court of the United States, in
discussing the question who may suspend the privilege of the writ of habeas; corpus under the
Constitution of the United States, said:
It would seem, as the power is given to Congress to suspend the writ of habeas corpus in cases of
rebellion, insurrection, or invasion, that the right to judge whether the exigency has arisen must
conclusively belong to that body. (Story on the Constitution, 5th ed., see. 1342.)
Justice James Ket, for many years a justice of the supreme court of the State of New York, in
discussing the same question, cites the case of Martin vs. Mott, and says: .
In that case it was decided and settled by the Supreme Court of the United States that it belonged
exclusively to the President to judge when the exigency arises in which he had authority, under the
Constitution, to call forth the militia, and that his decision was conclusive upon all other persons.
(Kents Commentaries, 14th ed., vol. 1, bottom p. 323.)
John Randolph Tucker, for many years a professor of constitutional and international law in
Washington and Lee university, in discussing this question, said: .
By an act passed in 1795 Congress gave to the President power to call out the militia for certain
purposes, and by subsequent acts, in 1807, power was given to him to be exercised whenever he
should deem it necessary, for the purposes stated in the Constitution; and the Supreme Court
(United States) has decided that this executive discretion in making the call (for State militia) could
not be judicially questioned. Tucker on the Constitution, Vol. II, p. 581.)
John Norton Pomeroy, an eminent law writer upon constitutional questions, said: .
In Martin vs. Mott it was decided that under the authority given to the President by the statute of
1795, calling forth the militia under certain circumstances, the power is exclusively vested in him to
determine whether those circumstances exist; and when he has determined by issuing his call, no
court can question his decision. (Pomeroys Constitutional Law, sec. 476.)
Henry Campbell Black, a well-known writer on the Constitution, says:
By an early act of Congress it was provided that in case of an insurrection in any
State against the government thereof it shall be lawful for the President of the United
States, on application of the legislature of such State, or of the executive (when the
legislature can not be convened), to call forth such a number of the militia of any
other State or States as may be applied for, as he may judge sufficient to suppress
such insurrection. By this act the power of deciding whether the exigency has arisen
upon which the Government of the United States is bound to interfere is given to the
President. (Blacks Constitutional Law, p. 102.)
Judge Thomas M. Cooley, in discussing the right of the judicial department of the Government to
interfere with the discretionary action of the other departments of the Government, in his work on
constitutional law, said:
Congress may confer upon the President the power to call them (the militia) forth,
and this makes him the exclusive judge whether the exigency has arisen for the
exercise of the authority and renders one who refuses to obey the call liable to
punishment under military law. (Cooleys Principles of Constitutional Law, p. 100.).
But it may be argued by those who contend for the contrary doctrine, to wit, that the acts of the Governor-General,
with the approval of the Philippine Commission, are not conclusive upon the courts and that none of the foregoing
citations are exactly in point, that none of these cases or authors treat of a case exactly like the one presented. We
are fortunate, however, in being able to cite, in answer to that contention, the case of Henry William Boyle, where
exactly the same question was presented to the supreme court of the State of Idaho, which the applicants present
here and where the courts held the doctrine of the cases applied. In the case of Boyle, he had been arrested after
the privilege of the writ of habeas corpus had been suspended. He applied for a writ of habeas corpus to the
supreme court of Idaho, alleging, among other things, in his application:
First: That no insurrection, riot, or rebellion now exists in Shoshone
County; and
Second. That the Governor has no authority to proclaim martial law or suspend the writ of habeas
corpus.
In reply to this contention on the part of the applicant, Boyle, the court said:
Counsel have argued ably and ingeniously upon the question as to whether the authority to suspend
the writ of habeas corpus rests with the legislative and executive powers of the Government, but,
from our views of this case, that question cuts no figure. We are of the opinion that whenever, for the
purpose of putting down insurrection or rebellion, the exigencies of the case demand it, with the
successful accomplishment of this end in view, it is entirely competent for the executive or for the
military officer in command, if there be such, either to suspend the writ or disregard it if issued. The
statutes of this State (Idaho) make it the duty of the governor, whenever such a state or condition
exists as the proclamation of the governor shows does exist in Shoshone County, to proclaim such
locality in a state of insurrection and to call in the aid of the military of the State or of the Federal
Government to suppress such insurrection and reestablish permanently the ascendency of the law.
It would be an absurdity to say that the action of the executive, under such circumstances, may be
negatived and set at naught by the judiciary, or that the action of the executive may be interfered
with or impugned by the judiciary. If the courts are to be made a sanctuary, a seat of refuge
whereunto malefactors may fall for protection from punishment justly due for the commission of
crime they will soon cease to be that palladium of the rights of the citizen so ably described by
counsel.
On application for a writ of habeas corpus, the truth of recitals of alleged facts in a proclamation
issued by the governor proclaiming a certain county to be in a state of insurrection and rebellion will
not be inquired into or reviewed. The action of the governor in declaring Shoshone County to be in
state of insurrection and rebellion, and his action in calling to his aid the military forces of the United
States for the purpose of restoring good order and the supremacy of the law, has the effect to put in
force, to a limited extent, martial law in said county. Such action is not in violation of the Constitution,
but in harmony with it, being necessary for the preservation of government. In such case the
Government may, like an individual acting in self-defense, take those steps necessary to preserve its
existence. If hundreds of men can assemble themselves and destroy property and kill and injure
citizens, thus defeating the ends of government, and the Government is unable to take all lawful and
necessary steps to restore law and maintain order, the State will then be impotent if not entirely
destroyed, and anarchy placed in its stead.
It having been demonstrated to the satisfaction of the governor, after some six or seven years of
experience, that the execution of the laws in Shoshone County through the ordinary and established
means and methods was rendered practically impossible, it became his duty to adopt the means
prescribed by the statute for establishing in said county the supremacy of the law and insuring the
punishment of those by whose unlawful and criminal acts such a condition of things has been
brought about; and it is not the province of the courts to interfere, delay, or place obstructions in the
path of duty prescribed by law for the executive, but rather to render him all the aid and assistance in
their power, in his efforts to bring about the consummation most devoutly prayed for by every good,
law-abiding citizen in the State. (In re Boyle, 45 L.R.A., 1899, 832.) (At pp. 99-104.).
These observations are followed on pages 104 to 115 by a compilation of decided cases centrally holding that
"whenever the Constitution or a statute gives a discretionary power to any person, to be exercised by him upon his
own opinion of certain facts, such person is to be considered the sole and exclusive judge of the existence of those
facts." For the sake of brevity, We shall not quote the discussion anymore. We are confident there can be no dissent
insofar as the general proposition stated is concerned.
Notably, in the unanimous decision of this Court in Montenegro, these views are totally adopted in a very brief
passage thus:
B. In his second proposition appellant insists there is no state of invasion, insurrection, rebellion or
imminent danger thereof. There are he admits intermittent sorties and lightning attacks by
organized bands in different places; but, he argues, such sorties are occassional, localized and
transitory. And the proclamation speaks no more than of overt acts of insurrection and rebellion, not
of cases of invasion, insurrection or rebellion or imminent danger thereof. On this subject it is noted
that the President concluded from the facts recited in the proclamation, and others connected
therewith, that there is actual danger of rebellion which may extend throughout the country. Such
official declaration implying much more than imminent danger of rebellion amply justifies the
suspension of the writ.
To the petitioners unpracticed eye the repeated encounters between dissident elements and military
troops may seem sporadic, isolated or casual. But the officers charged with the Nations security
analyzed the extent and pattern of such violent clashes and arrived at the conclusion that they are
warp and woof of a general scheme to overthrow this government vi et armis, by force and arms.
And we agree with the Solicitor General that in the light of the views of the United States Supreme
Court thru Marshall, Taney and Story quoted with approval in Barcelon vs. Baker (5 Phil., 87, pp. 98
an 100) the authority to decide whether the exigency has arisen requiring suspension belongs to the
President and his decision is final and conclusive upon the courts and upon all other persons.
Indeed as Justice Johnson said in that decision, whereas the Executive branch of the Government is
enabled thru its civil and military branches to obtain information about peace and order from every
quarter and corner of the nation, the judicial department, with its very limited machinery can not be in
better position to ascertain or evaluate the conditions prevailing in the Archipelago. (At pp. 886-887.)
There are actually many more judicial precedents and opinions of knowledgeable and authoritative textwriters, that
can be copied here, maintaining with inexorable logic why the Executive is incomparably best equipped and
prepared to cope with internal and external aggression and that, indeed, the protection of the country against such
contingencies is his sole responsibility not supposed to be shared by the Judiciary. But the proposition appears to
Us so plain and ineluctable that to summon all of them to Our assistance could only open Us to the suspicion that
the Philippine Supreme Court has to depend on borrowed thinking to resolve the most critical issues between
individual rights, on the one hand, and state power exerted as a matter of self-defense against rebellion and
subversion imperilling the countrys own survival, on the other. Emphatically, We dont have to. Thank God We have
enough native genius and indigenous means and resources to cope with the most delicate problems of statehood.
Let others listen to and abide by the platitudinous and elegantly phrased dicta in Milligan, supra, Duncan and
White,
14
they who are in and of the wealthiest and mightiest power in the world, that only actual military combat and
related operations can justify martial law, but We, who are in and of a small and weak developing nation, let us hearken
and follow the home-spun advice of our barrio folks cautioning everyone thus:
Kung ang bahay mo ay pawid at kawayan pagdilim ng ulap at lumalakas na ang hanging magsara
ka na ng bintana at suhayan mo ang iyong bahay. (When your house is made of nipa and bamboo,
and you see the clouds darkening and the winds start blowing, it is time for you to close your
windows and strengthen the support of your house.)
This could explain why under the Constitution, martial law can be declared not only in case of actual rebellion, but
even only when there is imminent danger thereof. And that is why the open court rule established in Milligan and
reiterated in Duncan and White is not controlling in this jurisdiction.
Besides, inasmuch as our people have included in the Constitution an express commitment of the power to the
President, why do We have to resort to the pronouncements of other courts of other countries wherein said power is
only implied? Regardless of what other courts believe their Executive may do in emergencies, our task is not to
slavishly adopt what those courts have said, for there is no evidence that such was the intent of our constitutional
fathers. gather, We should determine for Ourselves what is best for our own circumstances in the Philippines, even
if We have to give due consideration to the experience other peoples have gone through under more or less similar
crises in the past.
In any event, regardless of their weight insofar as the suspension of the privilege of the writ of habeas corpus is
concerned, We consider the reasons given in the above-quoted opinions in Barcelon and Montenegro of particular
relevance when it comes to the imposition of martial law.
4
It may be that the existence or non-existence or imminence of a rebellion of the magnitude that would justify the
imposition of martial law is an objective fact capable of judicial notice, for a rebellion that is not of general knowledge
to the public cannot conceivably be dangerous to public safety. But precisely because it is capable of judicial notice,
no inquiry is needed to determine the propriety of the Executives action.
Again, while the existence of a rebellion may be widely known, its real extent and the dangers it may actually pose
to the public safety are not always easily perceptible to the unpracticed eye. In the present day practices of
rebellion, its inseparable subversion aspect has proven to be more effective and important than "the rising (of
persons) publicly and taking arms against the Government" by which the Revised Penal Code characterizes
rebellion as a crime under its sanction (Art. 134, Revised Penal Code). Subversion is such a covert kind of anti-
government activity that it is very difficult even for army intelligence to determine its exact area of influence and
effect, not to mention the details of its forces and resources. By subversion, the rebels can extend their field of
action unnoticed even up to the highest levels of the government, where no one can always be certain of the
political complexion of the man next to him, and this does not exclude the courts. Arms, ammunitions and all kinds
of war equipment travel and are transferred in deep secrecy to strategic locations, which can be ones neighborhood
without him having any idea of what is going on. There are so many insidious ways in which subversives act, in fact
too many to enumerate, but the point that immediately suggests itself is that they are mostly incapable of being
proven in court, so how are We to make a judicial inquiry about them that can satisfy our judicial conscience?
The Constitution definitely commits it to the Executive to determine the factual bases and to forthwith act as
promptly as possible to meet the emergencies of rebellion and invasion which may be crucial to the life of the nation.
He must do this with unwavering conviction, or any hesitancy or indecision on his part will surely detract from the
needed precision in his choice of the means he would employ to repel the aggression. The apprehension that his
decision might be held by the Supreme Court to be a transgression of the fundamental law he has sworn to "defend
and preserve" would deter him from acting when precisely it is most urgent and critical that he should act, since the
enemy is about to strike the mortal blow. Different men can honestly and reasonably vary in assessing the
evidentiary value of the same circumstance, and the prospect of being considered as a constitutional felon rather
than a saviour of the country should the Justices disagree with him, would put the Executive in an unenviable
predicament, certainly unwise and imprudent for any Constitution to contemplate he should be in. But what is worse
is that the Court is not equipped in any way with the means to adequately appreciate the insidious practices of
subversion, not to say that it cannot do it with more or at least equal accuracy as the Executive. Besides, the Court
would then be acting already with considerable hindsight considerations which can imperceptibly influence its
judgment in overriding the Executives finding.
More than ever before, when rebellion was purely a surface action, and viewing the matter from all angles, it
appears ineludible that the Court should refrain from interfering with the Executives delicate decision. After all, the
sacred rights of individuals enshrined in the Bill of Rights and the other constitutional processes ever valuable to the
people, but which admittedly cannot, by the way, be more important than the very survival of the nation, are not
necessarily swept away by a state of martial law, for, as already pointed out earlier, the validity of the Proclamation
is one thing, the administration of the government under it is something else that has to be done with the closest
adherence to the fundamental law that the obvious necessities of the situation will permit. As We see it, it is in this
sense that the Constitution is the supreme law equally in times of peace and of war and for all classes of men, if We
must refer again to petitioners reliance on Milligan. At the same time, let us not overlook, in connection with this
favorite authority of petitioners, that the Federal Supreme Courts postulation therein, that it was "happily proved by
the result of the great effort to throw off (the) just authority" of the United States during the Civil War that the
constitution of that country contains within itself all that is necessary for its preservation, is not factually accurate, for
all the world knows that if the American Union survived the ordeal of possible disintegration and is the great nation
that she is today, it was not because President Lincoln confined himself strictly to the powers vested in the
presidency by the constitution, but because he was wise enough to resort to inherent extraconstitutional state
prerogatives, exercisable by the Executive alone, which President Marcos did not have to do, considering that our
Constitution expressly confers upon him the authority to utilize such state power in defense of the nation.
5
The historical development of the powers of the Philippine Executive unmistakably points to the same direction.
Practically all the constitutions that came into being during the revolutionary period before the turn of the last
century, of which the Malolos Constitution is typical, either entrusted executive power to a commission or made the
Executive largely dependent on the legislature. When the Americans ended their military occupation, after subduing
the Aguinaldo forces of independence, they had their own version of governmental powers. In the Philippine Bill of
1902, nothing was mentioned about martial law, and the power of the Governor General to suspend the privilege of
the writ of habeas corpus was conditioned on, among other things, the concurrence of the Philippine Commission of
which, notably, the Governor General was the head. When in 1905, the Governor General suspended the Privilege
in the provinces of Cavite and Batangas, the case of Barcelon vs. Baker, supra, arose. Over the dissent of Justice
Willard who invoked Milligan, the Supreme Court held that the proclamation ordering such suspension was not
reviewable by the Judiciary.
With a little touch of irony, in 1916, when the United States Congress, with the avowed intent of granting greater
political autonomy to the Philippines, enacted the Jones Law, it removed the need for legislative concurrence in
regards to the suspension of the Privilege, because the legislature was to be in Filipino hands, and in addition to
preserving such power of suspension, granted the Governor-General the sole authority to declare martial law,
subject only to revocation by the President of the United States. Without forgetting that at that time, the Governor-
General being then an American, those powers served as weapons of the colonizer to consolidate its hold on the
subject people, such plenitude of power in the Executive was to appear later to the Filipino leaders as something
that should be adopted in our fundamental law. So it was that in the Constitutional Convention of 1934, the first the
Philippines ever held in peace time, the delegates, drawing heavily from the experience of the country during the
autonomous period of the Jones Law, and perchance persuaded in no small measure by the personality of
President Manuel L. Quezon, lost no time in adopting the concept of a strong executive. Their decision was studied
and deliberate. Indeed, it is the unanimous observation of all students of our Constitution, that under it, we have in
the Philippines the strongest executive in the world. Fully aware of this feature and appearing rather elated by the
apparent success of the delegates to reconcile the possible evils of dictatorship with the need of an executive who
"will not only know how to govern, but will actually govern", President Claro M. Recto of the Convention remarked in
his valedictory address adjourning the Assembly as follows:
During the debate on the Executive Power it was the almost unanimous opinion that we had
invested the Executive with rather extraordinary prerogatives. There is much truth in this assertion.
But it is because we cannot be insensible to the events that are transpiring around us, events which,
when all is said and done, are nothing but history repeating itself. In fact, we have seen how
dictatorships, whether black or red, capitalistic or proletarian, fascistic or communistic, ancient or
modern, have served as the last refuge of peoples when their parliaments fail and they are already
powerless to save themselves from misgovernment and chaos. Learning our lesson from the truth of
history, and determined to spare our people the evils of dictatorship and anarchy, we have thought it
prudent to establish an executive power which, subject to the fiscalization of the Assembly, and of
public opinion, will not only know how to govern, but will actually govern, with a firm and steady
hand, unembarrassed by vexations, interferences by other departments, or by unholy alliances with
this and that social group. Thus, possessed with the necessary gifts of honesty and competence,
this Executive will be able to give his people an orderly and progressive government, without need of
usurping or abdicating powers, and cunning subterfuges will not avail to extenuate his failures before
the bar of public opinion." ("The Philippine Constitution Sources, Making, Meaning, and
Application" published by the Philippine Lawyers Association, p. 540.)
Of particular relevance to the present discussion is the fact that when an attempt was made by a few delegates led
by Delegate Salvador Araneta of Manila to subject the Executives power to suspend the privilege of the writ
ofhabeas corpus to concurrence or review by the National Assembly and the Supreme Court, the effort did not
prosper, thereby strongly indicating, if it did not make it indubitably definite, that the intent of the framers of the
fundamental law is that the Executive should be the sole judge of the circumstances warranting the exercise of the
power thus granted. In any event, the only evidence of any thinking within the convention advocating the revocation
of the Barcelon doctrine of which together with Milligan, they were or ought to have been aware, what with the best
known lawyers in the Philippines in their midst, collapsed with the rejection of the Araneta proposal.
It was in the light of this historical development of the Executive Power that in 1951, the Supreme Court decided
unanimously the case of Montenegro vs. Castaeda, supra, reiterating the doctrine of conclusiveness of the
Executives findings in the Barcelon case.
For all that it may be worthy of mention here, if only because practically the same Filipino minds, led by President
Jose P. Laurel, were largely responsible for its formulation, the Constitution of the Second Philippine Republic born
under aegis of the Japanese occupation of the Philippines during the Second World War, provided also for a strong
executive. On this point, President Laurel himself had the following to say:
The fundamental reason and necessity for the creation of a political center of gravity under the Republic is that, in
any form of government and this is especially true in an emergency, in a national crisis there must be a man
responsible for the security of the state, there must be a man with adequate powers, to face any given situation and
meet the problems of the nation. There must be no shifting of responsibility; there must be no evasion of
responsibility; and if a government is to be a real government and a scientific government there must be no two
centers of gravity but one. (2 O.G.[J.M.A.], 873 [1943].)" (The Philippine Presidency by Irene R. Cortes, p. 14.).
The foregoing is a logical follow-up of what Laurel had said in the 1934 Convention thus:
... A strong executive he is intended to be, because a strong executive we shall need, especially in the early years of
our independent, or semi-independent existence. A weak executive is synonymous with a weak government. He
shall not be a monarch or a dictator in time of profound and Octavian peace, but he virtually so becomes in an
extraordinary emergency; and whatever may be his position, he bulwarks normally, the fortifications of a strong
constitutional government, but abnormally, in extreme cases, he is suddenly ushered in as a Minerva, full-grown and
in full panoply of war, to occupy the vantage ground " the ready protector and defender of the life and honor of his
nation. (Emphasis supplied.) (The Philippine Constitution, published by the Phil. Lawyers Association, Vol. 1, 1969
Ed., p. 183.).
Thus, it is not surprising at all that without changing one word in the provision granting to the Executive the power to
cope with the emergencies under discussion, the 1971 Convention fortified thru related provisions in the transitory
portion of the Constitution the applicability of the Barcelon and Montenegro concepts of the Executives power, as
applied to the imposition of martial law, thereby weakening pro tanto as will be seen in the following pages, the
impact of Our Lansang doctrine, for the purposes of the precise issue now before Us.
At this juncture, it may be pointed out that the power granted to the Executive to place the country or any part
thereof under martial law is independent of the legislative grant to him of emergency Powers authorized under the
following provision of the 1935 Constitution:
Sec. 26. In times of war or other national emergency, the Congress may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to promulgate
rules and regulations to carry out a declared national policy. (Art. VI, sec. 26, 1935 Constitution.).
This provision is copied verbatim in the 1973 Charter except for the reference to the Prime Minister instead of to the
President and the addition of the following sentence indicating more emphatically the temporary nature of the
delegation:
Unless sooner withdrawn by resolution of the National Assembly, such powers shall cease upon its
next adjournment. (Section 15, Article VIII, 1973 Constitution of the Philippines.)
The point that immediately surges to the mind upon a reading of this provision is that in times of war or other
national emergency it is definitely to the Executive that the people thru the fundamental law entrust the running of
the government, either by delegation of the legislative power to him thru an express enactment of the Legislature to
that effect or by direct authorization from the Constitution itself to utilize all the powers of government should he find
it necessary to place the country or any part thereof under martial law. Additional evidence of such clear intent is the
fact that in the course of the deliberations in the Constitutional Convention of 1934 of the proposal to incorporate the
above provision in the charter, Delegate Wenceslao Vinzons of Camarines Norte moved to delete the same for fear
that the concentration of powers in one man may facilitate the emergence of a dictatorship. He said in part:
The power to promulgate rules and regulations in times of emergency or war is not recognized in
any constitution except, perhaps, the Constitution of Denmark, which provides that in case of special
urgency the King may, when the Reichstag is not in session, issue laws of temporary application.
Such laws, however, shall not be contrary to the Constitution, and they shall be submitted to the
Reichstag in its next session. So, even in a kingdom like Denmark, the powers of the King are
limited in times of emergency.
Under the Constitution we are drafting now, there is absolutely no limit except when the National
Assembly specifies at the inception of the grant of power.
I want to warn, Mr. President, of a future condition in our Republic when we shall no longer be under
the tutelage of any foreign power, when we shall have to work for our own destiny. I want to say that
I am not very positive in stating here that we shall have a dictatorship because the structure of the
government that we are creating permits its establishment, but the power to promulgate rules and
regulations will give rise to a strong man who may, in a desire to gratify his personal ambitions, seize
the reins of government." (Page 391, Volume Five, The Philippine Constitution, Its Origins, Making,
Meaning, and Application, a publication of the Philippine Lawyers Association, 1972.).
Despite such eloquent warning, the assembly voted down his motion.
It is now contended that instead of declaring martial law, President Marcos should have sought from Congress the
approval of an emergency powers act similar to Commonwealth Acts 600 and 671 passed respectively on August
19, 1940, long before the Japanese invasion, and December 16,1941, when the Nippon Army was already on its
way to Manila from Lingayen and other landing points in the North.
To start with, Congress was not unaware of the worsening conditions of peace and order and of, at least, evident
insurgency, what with the numerous easily verifiable reports of open rebellious activities in different parts of the
country and the series of rallies and demonstrations, often bloody, in Manila itself and other centers of population,
including those that reached not only the portals but even the session hall of the legislature, but the legislators
seemed not to be sufficiently alarmed or they either were indifferent or did not know what to do under the
circumstances. Instead of taking immediate measures to alleviate the conditions denounced and decried by the
rebels and the activists, they debated and argued long on palliatives without coming out with anything substantial,
much less satisfactory in the eyes of those who were seditiously shouting for reforms. In any event, in the face of the
inability of Congress to meet the situation, and prompted by his appraisal of a critical situation that urgently called for
immediate action, the only alternative open to the President was to resort to the other constitutional source of
extraordinary powers, the Constitution itself.
It is significant to note that Commonwealth Act 671 granted the President practically all the powers
of government. It provided as follows:
Sec. 1. The existence of war between the United States and other countries of Europe and Asia,
which involves the Philippines, makes it necessary to invest the President with extraordinary powers
in order to meet the resulting emergency.
Sec. 2. Pursuant to the provisions of Article VI, section 16, of the Constitution, the President is
hereby authorized, during the existence of the emergency, to promulgate such rules and regulations
as he may deem necessary to carry out the national policy declared in section 1 hereof. Accordingly
he is, among other things, empowered (a) to transfer the seat of the Government or any of its
subdivisions, branches, departments, offices, agencies or instrumentalities; (b) to reorganize the
Government of the Commonwealth including the determination of the order of precedence of the
heads of the Executive Departments; (c) to create new subdivisions, branches, departments, offices,
agencies or instrumentalities of government and to abolish any of those already existing; (d) to
continue in force laws and appropriations which would lapse or otherwise become inoperative, and
to modify or suspend the operation or application of those of an administrative character; (e) to
impose new taxes or to increase, reduce, suspend, or abolish those in existence; (f) to raise funds
through the issuance of bonds or otherwise, and to authorize the expenditure of the proceeds
thereof; (g) to authorize the National, provincial, city or municipal governments to incur in overdrafts
for purposes that he may approve; (h) to declare the suspension of the collection of credits or the
payment of debts; and (i) to exercise such other powers as he may deem necessary to enable the
Government to fulfill its responsibilities and to maintain and enforce its authority.
Sec. 3. The President of the Philippines shall as soon as practicable upon the convening of the
Congress of the Philippines report thereto all the rules and regulations promulgated by him under the
powers herein granted.
Sec. 4. This act shall take effect upon its approval, and the rules and regulations promulgated
hereunder shall be in force and effect until the Congress of the Philippines shall otherwise provide.
From this extensive grant of immense powers, it may be deduced that the difference between martial law and the
delegation of legislative power could be just a matter of procedure in that the investment of authority in the former is
by the Constitution while in the latter it is by the Legislature. The resulting constitutional situation is the same in both
government by the Executive. It can be said that even the primacy of military assistance in the discharge of
government responsibilities would be covered by the exercise of the delegated authority from Congress.
What is most important, however, is that the Constitution does not prohibit the declaration of martial law just
because of the authority given to the Legislative to invest the Executive with extraordinary powers. It is not to be
supposed that in the face of the inability or refusal of the Legislature to act, the people should be left helpless and
without a government to cope with the emergency of an internal or external aggression. Much less is it logical to
maintain that it is the Supreme Court that is called upon to decide what measures should be taken in the premises.
Indeed, the fundamental law looks to the Executive to make the choice of the means not only to repel the
aggression but, as a necessary consequence, to undertake such curative measures and reforms as are immediately
available and feasible to prevent the recurrence of the causes of the emergency.
Petitioners are capitalizing on the pronouncements of this Court in Lansang. We feel, however, that such excessive
reliance is not altogether well placed.
The exact import of the Lansang doctrine is that it is within the constitutional prerogative of the Supreme Court to
inquire into the veracity of the factual bases recited by the Executive in a proclamation ordering the suspension of
the privilege of the writ of habeas corpus, for the purpose of determining whether or not the Executive acted
arbitrarily in concluding from the evidence before him that there was indeed a rebellion and that public necessity, as
contemplated in the Constitution, required such suspension. In other words, We held therein that the issue of legality
or illegality of a proclamation suspending the Privilege is a justiciable one, in regard to which the Court could make
independent findings based on the evidence on which the President himself acted. Actually, however, no real
hearing was held for the purpose in that case. What might perhaps be considered as such a hearing was what took
place on October 28 and 29,1971, when, because of the willingness expressed by the respondents therein to impart
to the Court classified information relevant to the cases, subject to appropriate security measures, the Court met
behind closed doors, and in the presence of three attorneys representing the petitioners therein and the Solicitor
General it was briefed by the Chief of Staff of the Armed Forces and other ranking military officials on said classified
information, after which the parties were granted time to file their respective memoranda of observations on the
matters revealed in the briefing, which they did. (See 42 SCRA, at pp. 466-467). In the present cases there has
been no such hearing, not even a briefing wherein petitioners were represented. And it is gravely doubtful whether
any move in that direction would prosper, considering there are not enough members of the Court, who believe in
the juridical relevance thereof, to constitute the required majority for a binding action to order such a hearing or even
just a similar briefing as before.
Be that as it may, the important point is that Lansang referred to the extent of the powers of the Court in regard to a
proclamation suspending the Privilege whereas what is before Us now is a proclamation imposing martial law. We
hold that the powers of the Executive involved in the two proclamations are not of the same constitutional level and
the prerogatives of the Court relative to habeas corpus are distinct from those in the perspective of martial law.
To start with, it is too evident to admit of dispute that the aforequoted constitutional provision touching on the three
powers of the Executive, the calling of the armed forces, the suspension of the privilege and the imposition of martial
law contemplates varying and ascending degrees of lawlessness and public disorder. While it is true that textually
any of the three courses of action mentioned may be taken by the Executive on the occasion of an invasion,
insurrection or rebellion, the degree of resulting repression of individual rights under each of them varies so
substantially that it cannot be doubted that the constitution contemplates that the determination as to which of them
should be taken should depend on the degree of gravity of the prevailing situation. In other words, it is the actual
magnitude of the rebellion to be suppressed and the degree and extent of danger to public safety resulting
therefrom that determines whether it should be the first, the second or the third that should be taken in order that
there may be a direct proportion between the degree of gravity of the crisis and the restraint of individual rights and
liberties. When the situation is not very serious but is nevertheless beyond the control of the regular peace
authorities of the place affected, then the armed forces can be called. Should the conditions deteriorate in such a
way as to involve a considerable segment of the population, thereby making it difficult to maintain order and to
differentiate the loyal From the disloyal among the people, without detaining some of them, either preventively or for
their delivery to the proper authorities after the emergency or as soon as it eases, then the privilege of the writ
of habeas corpus may also be suspended. But the moment the situation assumes very serious proportions, to the
extent that there is a breakdown of the regular government machinery either because the officials cannot physically
function or their functioning would endanger public safety, martial law may be imposed. There is thus a marked
gradation of the circumstances constituting rebellion and danger to public safety in the provision, and it is to be
supposed that the measure to be adopted by the Executive should be that which the situation demands.
The calling of the armed forces is done by the Executive in his capacity as Commander-in-Chief. The power thus
exercised is purely executive and does not cause any disturbance in the constitutional order in the government. In
the case of suspension of the Privilege, individual rights guaranteed by the Bill of Rights are restrained, but
otherwise the regular constitutional machinery and the powers and functions of the different officials of the
government, including the courts, remain unaffected. Moreover, the suspension of the Privilege, although premised
on the demand of public safety, need not be necessarily predicated on the requirements of national security as
should be the case with martial law. Again, the power exercised in suspension is executive power and nothing more.
But when martial law is proclaimed, there is, as already observed earlier, a surrogation of the regular government
machinery by the constitutionally designated administrator with the aid of the military. What is exercised in this
instance is not executive power alone but state power which involves the totality of government authority, but
without an actual military takeover, if only because the civilian President remains at the head.
In this connection, it is very important to note that whereas the Bill of Rights explicitly prohibits the suspension of the
Privilege of the writ of habeas corpus except under the detailed circumstances prescribed therein, including the
limitations as to the time and place when and where it may stay suspended, there is no similar injunction in regard to
the imposition of martial law. In other words, the grant of the power to declare martial law in the Executive portion of
the Constitution is not countered, unlike in the case of habeas corpus, by a prohibition in the Bill of Rights, the
sanctuary of individual liberties.
Invoking Lansang, petitioners argue that if an order of suspension of the Privilege which involves less repression of
constitutional processes than martial law is reviewable by the courts, with more reason should the imposition of
martial law, whose effect upon the constitutional rights and processes is more pervasive, be subject to a judicial test
of constitutionality. Viewing it from the angle of individual rights, the argument sounds plausible, but when it is
considered that the framers of the Bill of Rights never bothered to put the same or any similar breaks to the
imposition of martial law as that which they placed in regard to suspension, it can be readily seen that because of
the gravity of the crisis predicating the extreme remedy of martial law, the constitution itself makes the invocation of
individual rights subordinate to the national interest involved in the defense of the state against the internal
aggression that confronts it. From this consideration, it follows that whatever standard of constitutionality was
established by the Court in Lansang relative to Suspension is not necessarily the measure of the powers the Court
can exercise over the Executives proclamation of martial law. What the Constitution purposely and with good
reason differentiates, the Court may not equate.
At any rate, We do not believe this is the proper occasion for the Court to alter or modify what We said in Lansang.
All that We say here is that Lansang does not reach the martial law powers of the Executive, if only because that
case involved exclusively the question of legality of the detention, during the Suspension, of some individuals, the
petitioners therein, whereas here We are dealing with the deprivation of liberty of petitioners as a direct
consequence of martial law, and in effect the real question before Us now is the legality of the martial law regime
itself, which, as already demonstrated, occupies a different level in the constitutional order of Executive power,
specially when considered from the point of view of the Bill of Rights.
But even if We must refer to the considerations of the Court in formulating Lansang, We cannot disregard the impact
of contemporary constitutional developments related thereto. The Convention of 1971 had barely started its relevant
deliberations when Lansang was decided. It is to be assumed that the delegates were well informed about its
import. Indeed, they must have focused their attention thereto when martial law was proclaimed in September of
1972, if only because some of the delegates were apprehended and detained and had forthwith filed the petitions
now pending before Us. The delegates knew or ought to have known that under the existing Constitution, the Bill of
Rights made no mention of the possible imposition of martial law in the section prohibiting the suspension of the
privilege of the writ of habeas corpus. Instead of seeing to it that in the charter they were drafting the prohibition as
to habeas corpus should be extended to the declaration of martial law, in order to make the contingency thereof as
difficult as in the case of the former, they evidently found more reason to concur in the construction pursued by
President Marcos of the prerogatives which the Constitution empowers him to utilize during a rebellion or invasion.
Accordingly, to erase further doubts on the matter, the Convention enacted the transitory provision earlier referred to
making the Proclamation, among others, part of the law of the land, which provision, We deem, at this point, not as
a fiat placing the Proclamation definitely beyond the pale of unconstitutionality, but as a contemporary authoritative
construction of the current charter by the body precisely called to examine it carefully and determine its defects that
should be corrected, to the end that the rights of the people may be best safeguarded. Verily, such construction is
entitled to due respect from Us, particularly because it has been in effect, if not directly, approved by the people, not
only in the referendum of January 10-15, 1973 assailed by petitioners but in the other one held by secret ballot on
July 27-28, 1973 under the supervision of the Commission on Elections. And in the light of such construction, Our
considered view is that Lansang is not controlling on the issues regarding martial law involved in these cases.
Perhaps, it may not be amiss to add here that although the records of the Constitutional Convention of 1934 do not
reveal the actual reasons for the rejection of the amendment proposed by Delegate Vicente J. Francisco to include
in the Bill of Rights provision regarding habeas corpus the reference made to imminent danger of invasion,
insurrection or rebellion in the enumeration of the powers of the Executive relative to the same subject, it is quite
possible that in the mind of the convention it was not absolutely necessary to suspend the Privilege when the
danger is only imminent unless the element of public safety involved already requires the imposition of martial law.
Relatedly, Delegate Araneta who as earlier mentioned, proposed to subject the suspension of the Privilege to
legislative or judicial concurrence or review, and who appeared to be the most bothered, among the delegates,
about the exertion of executive power during the emergencies contemplated, never said a word against the manner
in which the Executive was being granted the authority to impose martial law, much less proposed any restriction
upon it the way he did with the suspension of the Privilege. This goes to show that the feeling in the assembly was
to regard martial law differently from the suspension and to recognize that its imposition should not be tramelled nor
shackled by any provision of the Bill of Rights.
7
There are insurmountable pragmatic obstacles to the theory of justiciability sustained by petitioners. .
The most important of this is that there is no known or recognized procedure which can be adopted in the proposed
inquiry into the factual bases of the Executives proclamation to insure that the degree of judicious and fair hearing
and determination of facts might be approximated. Admittedly, the ordinary rules of pleading, practice and evidence
are out of the question. The relevant elemental facts are scattered throughout the length and breath of the country,
and there is no conceivable judicial camera that can catch the whole picture with adequate fidelity to the truth.
Perhaps judicial notice can help, but the elements of public safety are not properly susceptible of judicial notice
when it comes to covert subversive activities. The problems of demonstration are manifold, and when it is borne in
mind that, in the very nature of things and under universally accepted norms of state protection, there is a wall,
impenetrable even to the judiciary, behind which the state rightfully keeps away from other Departments matters
affecting national security, one will realize the futility of believing that the Court can, assuming it were, by some
curious way of reasoning, legally required to do so, properly perform its judicial attributes when it comes to
determining in the face of an apparently nationwide rebellion, whether or not martial law should be proclaimed by
the Executive, instead of resorting to the lesser remedies of calling the armed forces or suspending the Privilege.
Besides, for the Court to be able to decide whether or not the action of the Executive is arbitrary, it must, in justice to
both parties, and to him in particular, act in the light of the same evidence from which he drew his conclusion. How
can such evidence be all gathered and presented to the Court?
Some members of the Court are of the firm conviction that it is Our constitutional duty to indulge in the suggested
inquiry, so We can be assured in Our own conscience, and for the protection of the people, whether or not President
Marcos has acted arbitrarily. But prescinding from the difficulties of demonstration just discussed, from what
evidence is the Court going to draw its own conclusions in the cases at bar, when We have not even been told what
evidence the President had before him, except those that may be inferred from the whereases of the Proclamation
which are disputed by petitioners? On the other hand, how can We have all the evidence before US, when in the
very nature thereof We cannot have access to them, since they must be kept under the forbidding covers of national
security regulations? Even the standing ordinary rules of evidence provide in this respect thus: .
SEC. 21. Privileged communication.
xxx xxx xxx
(e) A public officer cannot be examined during his term of office or afterwards, as to communications
made to him in official confidence, when the court finds that the public interest would suffer by the
disclosure. (Rule 130, Revised Rules of Court of the Philippines).
The inevitable conclusion is that the Constitution must have intended that the decision of the Executive should be
his alone.
If We should hold that the matter before Us is justiciable, the practical result would be that even if the Court should
now decide in the style of Lansang that the President did not act arbitrarily in issuing the Proclamation, We would
have to be ready to entertain future petitions, one after the other, filed by whosoever may be minded to allege, for
his own purpose, that conditions have so improved as to warrant the lifting of martial law. Accordingly, every now
and then the Court would have to hear the parties and evaluate their respective evidence. The Government would
have to appear and prove all over again the justifications for its action. The consequence would be that instead of
devoting his time to the defense of the nation, the President would be preparing himself for the court battle. It is
ridiculous to think that the members of the Constitutional Convention had conceived placing such difficulties in the
way of the Executive which make of his function of defending the state a continuous running battle in two separate
fronts, one with the enemy another with the courts. It is suggested that the Court can summarily dismiss any such
future petitions in cavalier fashion by simply holding on to the finding We would make in these cases. But new
allegations and arguments are bound to be made, and it is definitely improper for Us to just summarily uphold the
Executive everytime a case comes up.
What is more absurd is that the Supreme Court is not the only court in which a petition to lift may be filed. Imagine if
petitions were filed in two or three Courts of First Instance, what would happen? In this connection, We are in no
position to enjoin the lower courts to entertain such petitions because they may refer to the proposed lifting of
martial law only in the respective provinces where the courts are, and We cannot hold, precisely because of Our
own characterization of the nature of the issue as justiciable, or more simply that the Proclamation is subject to the
review of factual bases by the court, that any of said courts is without jurisdiction to entertain the petition. Stated
otherwise, every court would then be open to pass on the reasonability or arbitrariness of the Presidents refusal or
failure to lift martial law. We do not mean to insinuate that the lower court judges may not be prepared for the
purpose, but the spectacle alone of several of such petitions pending in various courts, without visualizing anymore
the potentiality of one judge or another upholding the proponent, is something that will not only foreseeably
complicate our international relations but will also detract from our image as a people trained in the field of
government. All of these considerations suggest again that it is best that the Judiciary abstain from assuming a role
not clearly indicated in the Constitution to pertain to it.
C
THE SUPREME COURT ABSTAINS FROM REVIEWING PROCLAMATION 1081, BECAUSE, IN THE LIGHT OF
THE CONSIDERATIONS HEREIN DISCUSSED, IT IS CONVINCED THAT THE CONSTITUTION
CONTEMPLATES THAT THE DECLARATION OF MARTIAL LAW SHOULD BE THE RESPONSIBILITY SOLELY
OF THE EXECUTIVE, BUT SHOULD ANY OCCASION OF OPEN DEFIANCE AND MANIFEST DISREGARD OF
THE PERTINENT CONSTITUTIONAL PROVISION ARISE, THE COURT IS NOT POWERLESS TO "SUPPORT
AND DEFEND" THE CONSTITUTION.
The greatest fear entertained by those who would sustain the Courts authority to review the action of the President
is that there might be occasions when an Executive drunk with power might without rhyme or reason impose martial
law upon the helpless people, using the very Constitution itself as his weapon of oppression to establish here a real
dictatorship or totalitarian government. The view is that it is only the Supreme Court that can prevent such a dismal
eventuality by holding that it has the final authority and inescapable duty to define the constitutional boundaries of
the powers of the Executive and to determine in every case properly brought before it whether or not any such
power has been abused beyond the limits set down by the fundamental law, and that unless We hold here that the
Court can determine the constitutional sufficiency of Proclamation 1081 in fact and in law, the Filipino people would
have no protection against such in abusive Executive.
We here declare emphatically that such apprehension is definitely unfounded. Precisely, in this decision, We are
holding that the Court has the jurisdiction, the power and the authority to pass on any challenge to an Executives
declaration of martial law alleged in a proper case affecting private or individual rights to be unwarranted by the
Constitution. In these cases, however, we do not see any need for the interposition of our authority. Instead what
appears clear to Us, in the light of the considerations We have discuss above, and so We hold, is that the Solicitor
General is eminently correct in contending that in the circumstantial and constitutional milieu of the impugned
Proclamation, We should abstain from conducting the suggested inquiry to determine their constitutional sufficiency.
In the way We see the martial law provision of the Constitution, only two hypotheses can be considered relative to
the Constitutional problem before Us. Either the Executive acts in conformity with the provision or he does not. In
other words, either he imposes martial law because there is actually a rebellion endangering the public safety or he
does it for his own personal desire to grab power, notwithstanding the absence of the factual grounds required by
the fundamental law. In the latter case, the Court would have the constitutional power and duty to declare the
proclamation issued null and void. But to do this it does not have to conduct a judicial inquiry by the reception of
evidence. It should be guided solely by facts that are of judicial notice. Thus, if the predicative recitals of the
proclamation are confirmed by facts of general public knowledge, obviously any further inquiry would be
superfluous. On the other hand, in the contrary hypothesis, that is, it is publicly and generally known that there is no
rebellion of the nature and extent contemplated in the Constitution, no amount of evidence offered by the Executive
can judicially create such a rebellion. Indeed, as observed elsewhere in this opinion, a rebellion that does not come
to the judicial notice of the Court cannot warrant the imposition of martial law, particularly in reference to one
imposed over the whole country. But once it is known to the Court by judicial notice that there is a rebellion, it would
constitute anundue interference with the constitutional duties and prerogatives of the Executive for the Court to
indulge in an inquiry as to the constitutional sufficiency of his decision. Whether or not public safety requires the
drastic action of imposing martial law already involves the exercise of judgment, which as far as We can see is
committed to the responsibility of the Executive as the protector and defender of the nation. Our considered view is
that in such circumstances, the Constitution rather expects the Court to defer to his decision. Under this concept of
the powers of the Court relative to the exercise by the Executive of his martial law prerogatives, the Court does not
relinquish its authority as guardian of the Constitution and the Executive, guided solely by his own sense of
responsibility under his solemn oath "to defend and preserve" the Constitution, can proceed with his task of saving
the integrity of the government and the nation, without any fear that the Court would reverse his judgment.
To be sure, it could have sufficed for Us to point out, in answer to the contention about possible abuse, that it is
axiomatic in constitutional law that the possibility that an official might abuse the powers conferred upon him by law
or by the Charter does not mean that the power does not exist or should not be granted. This Court affirmed this
principle not only in Barcelon vs. Baker, quoted supra, which was the precursor perhaps of the extreme of judicial
self-restraint or abstention in this jurisdiction but even in Angara vs. Electoral Commission, 63 Phil. 139, reputedly
the vanguard of judicial activism in the Philippines, Justice Laurel postulated reassuringly on this point in Angara
thus: "The possibility of abuse is not an argument against the concession of power as there is no power that is not
susceptible of abuse" (at p. 177). And We could have complemented this ratiocination with the observation that it is
most unlikely that the Filipino people would be penalized by Divine Providence with the imposition upon them of an
Executive with the frightening characteristics ominously portrayed by those who advocate that the Court, assuming
its own immunity from being abusive, arbitrary or improvident, should not recognize any constitutionally envisioned
deference to the other Departments of the Government, particularly the Executive.
We can feel, however, that the people need further reassurance. On this score, it is opportune to recall that
inAvelino vs. Cuenco, 83 Phil. 68, in spite of the fact that in the Resolution of March 4, 1949, this Court refused to
intervene in the controversy between the parties as to whether or not there was a valid election of a new President
of the Senate, upon the ground that the issue involved was purely political, in the subsequent Resolution of March
14, 1949, upon realizing that a critical situation, detrimental to the national interest, subsisted as a consequence of
its abstention, the Court reversed itself and assumed the power to state categorically the correct solution to the
conflict based on its interpretation of the pertinent provisions of the Constitution.
Again, in January, 1962, in the space of several hours, 350 appointments to different positions in the government,
including Justices of the Supreme Court and of the Court of Appeals and judges of the lower courts, fiscals, officers
of the Army, directors of bureaus, Governor of the Central Bank, and others were sent by the President then to the
Commission on Appointments on December 29, 1961, the day preceding his last half-day in office, December 30,
1961. Upon the said appointments being impugned in the Supreme Court, the Court, aghast by the number of and
the speed in the making of said appointments, the fact that they were made under circumstances that betrayed not
only lack of proper and deliberate consideration of the qualifications of the appointees but also an evident intent to
deprive the succeeding President from filling the vacancies that had been left vacant even after the results showing
the defeat of the incumbent President had already been publicly known and conceded, the departure from long
established practices in their preparation as well as the other undesirable circumstances that surrounded the same,
promptly struck them down as the product of an improvident exercise of power, obnoxious to the precepts
underlying the principled government conceived in the Constitution.
15
The violation of the spirit and intent of the
Constitution appeared manifest to the Court on the basis of facts which were mainly if not all of judicial notice and,
therefore, needed no further demonstration in an inquiry or investigation by the Court. Under more or less a similar setting
of circumstances, which occurred in the latter part of the term of the President whose tenure expired on December 30,
1966, the Supreme court reiterated the above ruling in Guevarra vs. Inocentes, 16 SCRA 379.
Thus everyone can see that when situations arise which on their faces and without the need of inquiry or
investigation reveal an unquestionable and palpable transgression of the Constitution, the Supreme Court has never
been without means to uphold the Constitution, the policy of judicial self-restraint implicit therein notwithstanding.
The precedents just related relate to peaceful controversies, and, of course, the alleged violation of the Constitution
by the Executive in the exercise of a power granted to him to meet the exigencies of rebellion and the dangers to
public safety it entails has to be considered from a different perspective. Even then, the Supreme Court would not
be powerless to act, Until all of its members are incarcerated or killed and there are not enough of them to constitute
a quorum, the Court would always be there ready to strike down a proclamation of martial law as unconstitutional,
whenever from the facts manifest and generally known to the people and to it, and without its having conducted any
inquiry by the reception of evidence, it should appear that the declaration is made without any rational basis
whatsoever and is predicated only on the distorted motives of the Executive. For as long, however, as the recitals or
grounds given in a proclamation accord substantially with facts of judicial notice, either because they are of public
knowledge or are by their nature capable of unquestionable demonstration, We have no reason to interfere with the
discharge by the Executive of a responsibility imposed upon him by the Constitution and in which there is no
indication therein that the Court should share. But when, as just stated, it is generally known or it is of public
knowledge that there is no rebellion or, there being one, that it poses no conceivable danger to the public safety,
and, God forbid, martial law is proclaimed, the Court, even without the need of any kind of judicial inquiry into the
facts alleged in the proclamation, will certainly act and declare the pretentious Executive a constitutional outlaw, with
the result that the regular government established by the Constitution may continue in the hands of those who are
constitutionally called upon to succeed him, unless he overcomes the legitimate government by force. In truth, such
is the only way the Supreme Court should act in discharging its duty to uphold the Constitution by the use of the
judicial power, if it is to give to the Executive or the Legislature, as the case may be, the due regard that the
Constitution contemplates should be accorded to them in consideration of their own functions hid responsibilities
implicit in the principle of separation of powers embodied therein.
II
THE CONSTITUTION IS MERELY IN A STATE OF ANAESTHESIA, SINCE A MAJOR SURGERY IS NEEDED TO
SAVE THE NATIONS LIFE.
The foregoing discussion covers, as must have been noted, the resolution not only of the issue of jurisdiction raised
by the respondents but also of the corollary question of the application of the Lansang doctrine. Not only that, from
what has been said, it is obvious that since it is to the President that the Constitution has committed the discretion to
impose martial law, it follows that he alone should have the discretion and the prerogative to declare when it should
cease or be lifted. Exactly the same considerations compelling the conclusion that the Court may not review the
constitutional sufficiency of his proclamation of martial law make it ineludible to conclude that the people have also
left it to the Executive to decide when conditions would permit the full restoration of the regular constitutional
processes. With characteristic perceptive insight, in his thesis to be cited infra, Justice Guillermo S. Santos of the
Court of Appeals, discourses on this point as follows:
44. When Martial Rule is Terminated
In both England and the United States martial rule terminates ipso facto upon the cessation of the
public emergency that called it forth. To this proposition there has been no dissent. Martial rule must
cease when the public safety no longer require its further exercise.
45. Who Terminates Martial Rule
Since the declaration of martial rule has been committed to the judgment of the President, it follows
that its termination is to be fixed by the same authority. (Barcelon vs. Baker, 1905, 5 Phil. 87.) Again,
to this view there cannot he any valid objection. It would seem only natural that since the President
has been expressly authorized to declare martial rule no other authority should he permitted to
terminate it." (Martial Law, Nature, Principles and Administration by Guillermo S. Santos, p. 75.)
Needless to say, it is our Constitution that controls in the cases at bar, not the American theory. In fact, when
President Laurel proclaimed martial law during the Second World War, he expressly provided, to avoid any doubt
about the matter, thus:
8. The proclamation of martial law being an emergency measure demanded by imperative necessity,
it shall continue as long as the need for it exists and shall terminate upon proclamation of the
President of the Republic of the Philippines.
In the interest of truth and to set Our perspective aright it may not be said that under Proclamation 1081 and the
manner in which it has been implemented, there has been a total suspension, much less an abrogation, of the
Constitution. Even textually, the ensuing orders issued by the President have left virtually unaltered the established
constitutional order in all levels of government and society except those that have to be adjusted and subjected to
potential changes demanded by the necessities of the situation and the attainment of the objectives of the
declaration. Repeatedly and emphatically, the President has solemnly reassured the people that there is no military
takeover and that the declared principle in the Constitution that "Civilian authority is at all times supreme over the
military" (Section 8, Article II, 1973 Charter) shall be rigorously observed. And earlier in this opinion, We have
already discussed how he restored the security of tenure of the members of the Court and how the judicial power
has been retained by the courts, except in those cases involving matters affecting national security and public order
and safety which the situation demands should be dealt with by the executive arms of the government.
When President Lincoln proclaimed martial law in Kentucky in 1864, he did not completely overhaul the existing
machinery, he let it continue insofar as it did not obstruct the military operations and related activities. He ordered
thus:
Whereas many citizens of the State of Kentucky have joined the forces of the insurgents, and such
insurgents have, on several occasions. entered the said State of Kentucky in large force, and, not
without aid and comfort furnished by disaffected and disloyal citizens of the United States residing
therein, have not only disturbed the public peace, but have overborne the civil authorities and made
flagrant civil war, destroying property and life in various parts of the State: And whereas it has been
made known to the President of the United States by the officers commanding the national armies,
that combinations have been formed in the said State of Kentucky with a purpose of inciting rebel
forces to renew the said operations of civil war within the said State, and thereby to embarrass the
United States armies now operating in the said State of Virginia and Georgia, and even to endanger
their safety: ... The martial law herein proclaimed, and the things in that respect herein ordered, will
not be deemed or taken to interfere with the holding of lawful elections, or with the proceedings of
the constitutional legislature of Kentucky, or with the administration of justice in the courts of law
existing therein between citizens of the United States in suits or proceedings which do not affect the
military operations or the constituted authorities of the government of the United States. (Martial
Law, Nature, Principles and Administration by Guillermo S. Santos, pp. 97-98.).
Incidentally, there is here a clear repudiation of the open court theory, and what is more, even the holding of regular
elections and legislative sessions were not suppressed.
16
Accordingly, the undeniable fact that the Philippine Congress
was in session, albeit about to adjourn, when martial law was declared on September 21, 1972 is not necessarily an
argument against the exercise by the President of the power to make such a declaration.
President Laurels own declaration of martial law during the Japanese occupation did not involve a total blackout of
constitutional government. It reads in its pertinent portions thus:
xxx xxx xxx
4. All existing laws shall continue in force and effect until amended or repealed by the President, and
all the existing civil agencies of an executive character shall continue exercising their powers and
performing their functions and duties, unless they are inconsistent with the terms of this
Proclamation or incompatible with the expeditious and effective enforcement of martial law herein
declared.
5. It shall be the duty of the Military Governors to suppress treason, sedition, disorder and violence;
and to cause to be punished all disturbances of public peace and all offenders against the criminal
laws; and also to protect persons in their legitimate rights. To this end and until otherwise decreed,
the existing courts of justice shall assume jurisdiction and try offenders without unnecessary delay
and in a summary manner, in accordance with such procedural rules as may be prescribed by the
Minister of Justice. The decisions of courts of justice of the different categories in criminal cases
within their original jurisdiction shall be final and unappealable: Provided, however, That no sentence
of death shall be carried into effect without the approval of the President.
6. The existing courts of justice shall continue to be invested with, and shall exercise, the same
jurisdiction in civil actions and special proceedings as are now provided in existing laws, unless
otherwise directed by the President of the Republic of the Philippines.
Proclamation 1081 is in no sense any more constitutionally offensive. In fact, in ordering detention of persons, the
Proclamation pointedly limits arrests and detention only to those "presently detained, as well as all others who may
hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses
committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes
against national security and the law of nations, crimes against public order, crimes involving usurpation of authority,
rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other
crimes as will be enumerated in orders that I shall subsequently promulgate, as well as crimes as a consequence of
any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction."
Indeed, even in the affected areas, the Constitution has not been really suspended much less discarded. As
contemplated in the fundamental law itself, it is merely in a state of anaesthesia, to the end that the much needed
major surgery to save the nations life may be successfully undertaken.
III
THE IMPOSITION OF MARTIAL LAW AUTOMATICALLY CARRIES WITH IT THE SUSPENSION OF THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN ANY EVENT, THE PRESIDENTIAL ORDER OF ARREST
AND DETENTION CANNOT BE ASSAILED AS DEPRIVATION OF LIBERTY WITHOUT DUE PROCESS.
The next issue to consider is that which refers to the arrest and continued detention and other restraints of the
liberties of petitioner, and their main contention in this respect is that the proclamation of martial law does not carry
with it the suspension of the privilege of the writ of habeas corpus, hence petitioners are entitled to immediate
release from their constraints.
We do not believe such contention needs extended exposition or elaboration in order to be overruled. The primary
and fundamental purpose of martial law is to maintain order and to insure the success of the battle against the
enemy by the most expeditions and efficient means without loss of time and with the minimum of effort. This is self-
evident. The arrest and detention of those contributing to the disorder and especially of those helping or otherwise
giving aid and comfort to the enemy are indispensable, if martial law is to mean anything at all. This is but logical. To
fight the enemy, to maintain order amidst riotous chaos and military operations, and to see to it that the ordinary
constitutional processes for the prosecution of law-breakers are three functions that cannot humanly be undertaken
at the same time by the same authorities with any fair hope of success in any of them. To quote from Malcolm and
Laurel, "Martial law and the privilege of that writ (of habeas corpus are wholly incompatible with each other."
(Malcolm and Laurel, Philippine Constitutional Law, p. 210). It simply is not too much for the state to expect the
people to tolerate or suffer inconveniences and deprivations in the national interest, principally the security and
integrity of the country.
Mere suspension of the Privilege may be ordered, as discussed earlier, when the situation has not reached very
critical proportions imperilling the very existence of the nation, as long as public safety demands it. It is, therefore,
absurd to contend, that when martial law, which is precisely the ultimate remedy against the gravest emergencies of
internal or external aggression, is proclaimed, there is no suspension of the Privilege unless this is separately and
distinctly ordered. Considering that both powers spring from the same basic causes, it stands to reason that the
graver sanction includes the lesser. It is claimed that President Laurel treated the two matters separately in his
aforequoted proclamation. We do not believe that the precedent cited controls. It only proves that to avoid any
doubt, what President Laurel did may be adopted. There can be no denying the point that without suspension of the
Privilege, martial law would certainly be ineffective. Since martial law involves the totality of government authority, it
may be assumed that by ordering the arrest and detention of petitioners and the other persons mentioned in the
Proclamation, until ordered released by him, the President has by the tenor of such order virtually suspended the
Privilege. Relatedly, as pointed out by the Solicitor General no less than petitioner Diokno himself postulated in a
lecture at the U.P. Law Center that:
There are only, as far as I know, two instances where persons may be detained without warrant but
with due process. The first is in cases of martial law or when the writ of habeas corpus is suspended.
In those cases, it is not that their detention is legal, it is that we cannot inquire into the legality of their
detention. Because martial law means actually the suspension of law and the substitution of the will
of our Congress. The second instance is that which is provided for in Rule 113, section 6 of the
Rules of Court and Section 37 of the Revised Charter of the City of Manila. Essentially it consists of
cases where the crime is committed right in the presence of the person Who is making the arrest or
detention. (Trial Problems in City & Municipal Courts, 1970, p. 267, U. P. Law center Judicial
Conference Series.) .
In his well documented and very carefully prepared and comprehensive thesis on Martial Law, Nature, Principles
and Administration, published by Central Lawbook Publishing Co., Inc, in 1972, Justice Guillermo S. Santos of the
Court of Appeals and formerly of the Judge Advocate Generals Service, Armed Forces of the Philippines, makes
these pointed observations:
Whether the existence of martial law and the suspension of the privilege of the writ of habeas
corpusare one and the same thing, or the former includes the latter and much more, had been the
subject of an angry war of pamphlets between Professors Parsons and Parker of the Harvard Law
School at the outbreak of the Civil War. (Fairman, p. 43; Wiener p. 9.) It has also been a difficult
question to decide in some jurisdictions whether the suspension of the privilege of the writ amounted
to a declaration of martial law. (Winthrop, pp. 820 & 828, citing Ex parte Field, 9 Am. L.R. 507;
Bouviers Law Dictionary, 3rd Francis Rawis Ed., 1914, p. 2105, citing 1 Halleck Int. Law 549.
In the face of the constitutional provisions (Art. 111, Sec. 1, Clause (14) and fn 9, supra.) in our
jurisdiction, there seems to be no room for doubt that the two are different. While the grounds for the
suspension of the privilege of the writ and the proclamation of martial law are the same, there can be
no question that suspension of the writ means what it says, that during the suspension of the
privilege, the writ, if issued, will be to no avail; but martial law has more than just this effect. The only
question which apparently remains to be determined here, is, whether the declaration of martial law
ipso facto carries with it the suspension of the privilege of the writ, or whether a declaration of martial
law must necessarily include a declaration suspending the privilege of the writ in order to consider
the same inoperative. But it appears that the former is the better view, (Malcolm and Laurel,
Philippine Constitutional Law, p. 310) although in the United States it has been held that qualified
martial rule may exist where the writ has, in legal contemplation, not been suspended, (Fairman, p.
44) and that the status of martial law does not of itself suspend the writ. (Military Law [Domestic
Disturbances], Basic Field Manual, War Department, [US] fn 19 & 15, p. 17 [1945].) (See pp. 41-42.)
Of course, We are not bound by the rule in other jurisdictions.
Former Dean Vicente G. Sinco of the College of Law of the University of the Philippines, of which he became later
on President, a noted authority on constitutional law from whom many of us have learned the subject, likewise
sustains the view that the proclamation of martial law automatically suspends the privilege of the writ of habeas
corpus. (V. Sinco, Phil. Political Law, p. 259, 11th Ed., 1962)
Now, as to the constitutional propriety of detaining persons on suspicion of conspiracy with the enemy without the
need of the regular judicial process, We have also the authoritative support of no less than what a distinguished
member of this Court, considered as one of the best informed in American constitutional law, Mr. Justice Enrique
Fernando, and the principal counsel of petitioners, former Senator Taada, himself an authority, on the subject, had
to say on the point in their joint authorship, used as textbook in many law schools, entitled Constitution of the
Philippines, to wit:
Once martial law has been declared, arrest may be necessary not so much for punishment but by
way of precaution to stop disorder. As long as such arrests are made in good faith and in the honest
belief they are needed to maintain order, the President, as Commander-in-Chief, cannot thereafter,
when he is out of office, be subjected to an action on the ground that he had no reasonable ground
for his belief. When it comes to a decision by the head of a state upon a matter involving its life, the
ordinary rights of individuals must yield to what he deems the necessities of the moment. Public
danger warrants the substitution of executive for judicial process. (Emphasis supplied.) (Constitution
of the Philippines by Taada & Fernando, Vol. 2, pp. 523-525.)
The authority cited by Justice Fernando and Senator Taada says:
The plaintiffs position, stated in a few words, is that the action of the governor, sanctioned to the
extent that it was by the decision of the supreme court, was the action of the state and therefore
within the 14th Amendment; but that, if that action was unconstitutional, the governor got no
protection from personal liability for his unconstitutional interference with the plaintiffs rights. It is
admitted, as it must be. that the governors declaration that a state of insurrection existed is
conclusive of that fact. It seems to be admitted also that the arrest alone would riot necessarily have
given a right to bring this suit. Luther v. Borden, 7 How. 1, 45, 46, 12 L. ed. 581, 600, 601. But it is
said that a detention for so many days, alleged to be without probable cause, at a time when the
courts were open, without an attempt to bring the plaintiff before them, makes a case on which he
has a right to have a jury pass.
We shall not consider all of the questions that the facts suggest, but shall confine ourselves to
stating what we regard as a sufficient answer to the complaint, without implying that there are not
others equally good. Of course, the plaintiffs position is that he has been deprived of his liberty
without due process of law. But it is familiar that what is due process of law depends on
circumstances. It varies with the subject-matter and the necessities of the situation. Thus, summary
proceedings suffice for taxes, and executive decisions for exclusion from the county. Den ex
dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; United States v. Ju Toy,
198 U.S. 253, 263, 49 L. ed. 10-40, 1044, 25 Sup. Ct. Rep. 644. What, then, are the circumstances
of this case? By agreement the record of the proceedings upon habeas corpus was made part of the
complaint, but that did not make the averments of the petition for the writ averments of the
complaint. The facts that we are to assume are that a state of insurrection existed and that the
governor, without sufficient reason but in good faith, in the course of putting the insurrection down,
held the plaintiff until he thought that he safely could release him.
It would seem to be admitted by the plaintiff that he was president of the Western Federation of
Miners, and that, whoever was to blame, trouble was apprehended with the members of that
organization. We mention these facts not as material, but simply to put in more definite form the
nature of the occasion on which the governor felt called upon to act. In such a situation we must
assume that he had a right, under the state Constitution and laws, to call out troops, as was held by
the supreme court of the state. The Constitution is supplemented by an act providing that when an
invasion of or insurrection in the state is made or threatened, the governor shall order the national
guard to repel or suppress the same. Laws of 1897, chap. 63, art. 7, & 2, p. 204. That means that he
shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of
course, that he may use the milder measure of seizing the bodies of those whom he considers to
stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way
of precaution, to prevent the exercise of hostile power. So long as such arrests are made in good
faith and in the honest belief that they are needed in order to head the insurrection off, the governor
is the final judge and cannot be subjected to an action after he is out of office, on the ground that he
had not reasonable ground for his belief. If we suppose a governor with a very long term of office, it
may be that a case could be imagined in which the length of the imprisonment would raise a different
question. But there is nothing in the duration of the plaintiffs detention or in the allegations of the
complaint that would warrant Submitting the judgment of the governor to revision by a It is not
alleged that his judgment was not honest, if that be material, or that the plaintiff was detained after
fears of the insurrection were at an end.
No doubt there are cases where the expert on the spot may he called upon to justify his conduct
later in court, notwithstanding the fact that he had sole command at the time and acted to the best of
his knowledge. That is the position of the captain of a ship. But, even in that case, great weight is
given to his determination, and the matter is to be judged on the facts as they appeared then, and
not merely in the light of the event. Lawrence v. Minturn, 17 How. 100, 110, 15 L. ed. 58, 62; The
Star of Hope, 9 Wall. 203, 19 L. ed. 638; The Germanic (Oceanic Steam Nav. Co. v. Aitken) 196
U.S. 589, 594, 595, 49 L. ed. 610, 613, 25 Sup. Ct. Rep. 317. When it comes to a decision by the
head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what
he deems the necessities of the moment. Public danger warrants the substitution of executive
process for judicial process. See Keely v. Sanders, 99 U.S. 441, 446, 25 L. ed. 327, 328. (Moyer vs.
Peabody, 212 U.S. 416, 417.)
Relatedly, in the decision of the Supreme Court of Colorado dealing with the same detention of Charles H. Moyer by
order of the state governor, it was held:
By the reply it is alleged that, notwithstanding the proclamation and determination of the Governor
that a state of insurrection existed in the county of San Miguel, that as a matter of fact these
conditions did not exist at the time of such proclamation or the arrest of the petitioner, or at any other
time. By S 5, art. 4, of our Constitution, the governor is the commander in chief of the military forces
of the state, except when they are called into actual service of the United States; and he is thereby
empowered to call out the militia to suppress insurrection. It must therefore become his duty to
determine as a fact when conditions exist in a given locality which demand that, in the discharge of
his duties as chief executive of the state, he shall employ the militia to suppress. This being true, the
recitals in the proclamation to the effect that a state of insurrection existed in the country of San
Miguel cannot be controverted. Otherwise, the legality of the orders of the executive would not
depend upon his judgment, but the judgment of another coordinate branch of the state government
............
............................
............................
.... If, then, the military may resort to the extreme of taking human life in order to suppress
insurrection it is impossible to imagine upon what hypothesis it can be successfully claimed that the
milder means of seizing the person of those participating in the insurrection or aiding and abetting it
may not be resorted to. The power and authority of the militia in such circumstances are not unlike
that of the police of a city, or the sheriff of a county, aided by his deputies or posse comitatus in
suppressing a riot. Certainly such officials would be justified in arresting the rioters and placing them
in jail without warrant, and detaining the there until the riot was suppressed. Hallett J., in Re
Application of Sherman Parker (no opinion for publication). If, as contended by counsel for petitioner,
the military, as soon as the rioter or insurrectionist is arrested, must turn him over to the civil
authorities of the country, the arrest might, and in many instances would, amount to a mere farce.
He could be released on bail, and left free to again join the rioters or engage in aiding and abetting
their action, and, if again arrested, the same process would have to be repeated, and thus the action
of the military would be rendered a nullity. Again, if it be conceded that, on the arrest of a rioter by
the military, he must at once be turned over to the custody of the civil officers of the county, then the
military, in seizing armed insurrectionists and depriving them of their arms, would be required to
forthwith return them to the hands of those who were employing them in acts of violence; or be
subject to an action of replevin for their recovery whereby immediate possession of such arms would
be obtained be the rioters, who would thus again be equipped to continue their lawless conduct. To
deny the right of the militia to those whom they arrest while engaged in suppressing acts of violence
and until order is restored would lead to the most absurd results. The arrest and detention of an
insurrectionist, either actually engaged in acts of violence or in aiding and abetting others to commit
such acts, violates none of his constitutional rights. He is not tried by any military court, or denied the
right of trial by jury; neither is he punished for violation of the law, nor held without due process of
law. His arrest and detention is such circumstances merely to prevent him from taking part or aiding
in a continuation of the conditions which the governor, in the discharge of his official duties and in
the exercise of authority conferred by law, is endeavoring to suppress. When this end is reached, he
could no longer be restrained of his liberty by the military, but must be, just as respondents have
indicated in their return to the writ, turned over to the usual civil authorities of the county, to be dealt
with in the ordinary course of justice, and tried for stich offenses against the law as he may have
committed. It is true that petitioner is not held by virtue of any warrant, but if his arrest and detention
are authorized by law he cannot complain because those steps have not been taken which are
ordinarily required before a citizen can be arrested and detained.
..........................
.... The same power which determines the existence of an insurrection must also decide when the
insurrection has been suppressed. (Emphasis added.) (Re Moyer, 35 Colo, 159, 85 Pac. 190
[1904].)
It is evident, therefore, that regardless of whether or not the privilege of the writ of habeas corpus is expressly
suspended during martial law, arrest, detention and other restraints of liberty of individuals may not be assailed as
violative of the due process clause. The Presidential orders to such effect constitute substantive and procedural due
process at the same time and may therefore be invoked as valid defenses against any remedy or prayer for release.
Given the validity of the declaration of martial law, the sole tests of legality of constraints otherwise frowned upon in
normal times by the fundamental law are substantial relevance and reasonableness. In the very nature of things,
and absent any obvious showing of palpable bad faith, the Executive should enjoy respectful deference in the
determination of his grounds. As a rule, the Courts are not supposed to make any inquiry into the matter.
We accordingly hold that, as well demonstrated by the Solicitor General, a proclamation of martial law automatically
results in the suspension of the privilege of the writ of habeas corpus and, therefore, the arrest, detention and
restraints upon petitioners are authorized by the Constitution. In any event, the Presidential order of arrest and
detention constitute due process and is, therefore, a valid defense to any allegation of illegality of the constraints
upon petitioners. We further hold that the duration of such constraints may be co-extensive with martial law unless
otherwise ordered by the Executive.
IV
THE EFFECT OF THE APPROVAL AND RATIFICATION
OF THE NEW CONSTITUTION ON THE INSTANT
PETITIONS
All that remains now for resolution is the question of what effect did the approval and ratification of the New
Constitution have upon the instant petitions?
When petitioners came to this Court in September and October 1972 to impugn the legality of their arrest and
detention by virtue of Proclamation 1081 and General Order No. 2, their common fundamental theory was that said
proclamation and order were violative of the Constitution of the Philippines of 1935, not only because, according to
them, there was no justification for its placing the country under martial law but also because, even assuming its
propriety, there was allegedly no legal basis for the apprehension and detention of petitioners without any warrant of
arrest and without even any charges being filed against them. Thus, in his return of the writ ofhabeas corpus issued
by the Court, as well as in his oral argument at the hearings, the Solicitor General limited himself to barely invoking
the provision of the said Constitution empowering the President to proclaim martial law, even as he denied the
allegation that there was no factual basis therefor, and simply contended that the arrest and detention of petitioners
were made pursuant to orders validly issued under the powers of the President flowing from the proclamation. .
A
As already noted, however, even before these cases could be submitted for decision, on November 30, 1972, the
Constitutional Convention of 1971 approved a draft constitution designed to supersede the Constitution of 1935 and
on January 17, 1973, thru Proclamation 1102, the President declared that draft constitution to have been ratified by
the people in the referendum of January 10-15, 1973, and, as also stated earlier, said proclamation became the
subject of two series of cases in this Court which ultimately ended with the decision of March 31, 1973 adjudging
that "there is no further judicial obstacle to the New Constitution being considered in force and effect." And among
the salient and pertinent provisions of the New Constitution or the Constitution of 1973, as the new charter may
distinctively be referred to, is that of Section 3 (2) of Article XVII textually reproduced earlier above.
In view of the comprehensive or all-inclusive tenor of the constitutional injunction contained in said provision,
referring as it does to "all proclamations, orders, decrees, instructions, and acts promulgated issued, or done by the
incumbent President", there can be no doubt that Proclamation 1081 and General Order 2, herein assailed by
petitioners, are among those enjoined to he "part of the law of the land." The question that arises then is, did their
having been made part of the law of the land by no less than an express mandate of the fundamental law preclude
further controversy as to their validity and efficacy?
In pondering over this question, it is important to bear in mind the circumstances that attended the framing and final
approval of the draft constitution by the Convention. As already noted, two actuations of the President of indubitable
transcendental import overtook the deliberations of the constituent assembly, namely, the issuance by him of
Proclamation 1081 placing the Philippines under martial law and his exercise, under said proclamation, of non-
executive powers, inclusive of general legislative authority. As to be expected in a country, like the Philippines, long
accustomed to strict constitutionalism, and the superiority of civilian authority over, the military, soon enough, these
two actuations spawned constitutional controversies of serious dimensions, so much so that several cases involving
them, including the instant ones, are now pending in the Supreme Court. Surely, the members of the Convention
were well aware of these developments. In other words, the delegates in convention assembled were living
witnesses of the manner in which, for the first time in our constitutional history, the martial law clause of the charter
was being actually implemented, and they knew the grave constitutional issues such implementation had provoked.
Indeed, no constituent assembly Could have been better circumstanced to formulate the fundamental law of the
land. The Convention had a full and first-hand view of the controversial operation of the most important part of the
charter it was called to improve upon its martial law clause. Verily, no other aspect of the constitution could have
commanded more the most serious attention of the delegates. They knew or ought to have known that the placing of
the country or any part thereof under martial law could possibly affect the continued operation therein of the
constitution or at least, the enforceability of particular provisions thereof. Therefore, if the Convention felt that what
was being done by the President as witnessed by them was not within the contemplation of the existing fundamental
law or that it was inconsistent with the underlying principles of democracy and constitutionalism to which the nation
has been irrevocably committed since its birth and which were to remain as the foundations of the new charter, the
delegates would have considered it to be their bounden duty to our people and to the future generations of Filipinos,
to manifest their conviction by providing appropriate safeguards against any repetition thereof in the constitution
they were drafting. And so, when it is considered that as finally approved, the New Constitution reproduces in
exactly the same terms or verbatim the martial law clause of the 1935 charter, the ineludible conclusion is that our
new constitutional fathers did not see anything repugnant to the concepts of the old constitution in what the
President has done or was doing. As We see it, this attitude of the Convention constitutes an authoritative
contemporary construction of the provision in controversy, and considering that the Presidents manner of
implementing martial law has been sanctioned by the people not only in the referendum of January 10-15, 1973 but
also in that of July 27-28, 1973, reliance on such attitude in determining the meaning and intent of said provision
cannot be out of place.
In the light of these considerations, We do not see in the transitory provision under discussion any idea of ratification
or validation of something void or unauthorized. Rather, what We perceive in it are revelations of what lay in the
core of the martial law clause of the 1935 Constitution as it was conceived and formulated by its wise and farsighted
framers. It would be unreasonable, illogical and unworthy of the 1971 delegates to impute to them an intent to
merely ratify, confirm or validate the Presidents acts, on the assumption that they were originally unauthorized by
the charter, for that would imply that they were concerned only about straightening out the present situation, when it
is just as important to insure that future acts of the President are not tainted with illegality. We cannot entertain any
thought that the delegates were not sufficiently apprised on the implications of their acts. Indeed, the New
Constitution has not imparted ex propio vigore any element of validity to the acts in question, it has only expressed
in black and white what the Old Constitution did not deem necessary to lay down with precision in respect to them.
Viewed this way, what the transitory provision under discussion means is that both the acts of the President before
as well as those after ratification of the New Constitution are valid not validated and, as just stated, what
reinforces this construction and places the said acts beyond possible attacks for unconstitutionality are the results of
the two referendums of January and July, 1973.
Withal, having absolute faith in the high sense of duty and the patriotic courage of the members of the Convention,
We also reject the suggestion that they were in any way impeded, under the circumstances then obtaining, from
freely expressing themselves. We cannot for a moment entertain the thought that any other Filipino can ever have
less courage and love of country and concern for the future of our people than the members of this Court who are
presently called upon to make momentous decisions affecting no less than the legality and legitimacy of the very
Government admittedly in effective control of the whole territory of the nation, regardless of possible personal
consequences to themselves.
The fact of the matter is that Proclamation 1081 did not make mention of the Convention at all. On the contrary,
judicial notice may be taken of the increased funds appropriated by the President so as to enable it to proceed with
its deliberations, unbothered by any apprehension regarding the inadequacy of the funds which the Congress had
appropriated for it, and which were then fast dwindling, without any certainty of further congressional appropriations.
Indeed, when Delegate Kalaw of the First District of Rizal proposed in a formal resolution that the sessions be
suspended until after the lifting of martial law, the assembly voted overwhelmingly to turn down the proposal. There
is no evidence at all that any form of undue pressure was brought to bear upon the delegates in any respect related
to their constituent functions. It has not been shown that the arrest and detention of a number of delegates, some of
whom are petitioners herein, was in any way connected with or caused by their actuations related to their
constituent functions. What General Order No. 2 asserts is that the President ordered the "Secretary of National
Defense to forthwith arrest or cause the arrest and take into custody the individuals named in the attached list
(among them, the said delegates) and to hold them until otherwise so ordered by me or my duly designated
representative" for their "being active participants or for having given aid and comfort in the conspiracy to seize
political and state power in the country and to take over the Government by force, the extent of which has now
assumed the proportion of an actual war against Our people and our legitimate Government and in order to prevent
them from further committing acts that are inimical or injurious to our people, the Government and our national
interest, and to hold said individuals until otherwise so ordered by me or by my duly designated representative."
Even then, said delegates were allowed to cast their votes in the assembly when the final draft was submitted for
approval of the members of the Convention. Thus, it can be safely asserted that the freedom of the Convention to
act and to perform whatever was incumbent upon it as a constituent body suffered no substantial diminution or
constraint on account of the proclamation of martial law.
To reiterate then, Section 3 (2), Article XVII of the New Constitution enjoins that "all proclamations, orders, decrees,
instructions and acts promulgated, issued or done by the incumbent President shall be part of the law of the land
and shall remain valid, legal, binding and effective even after the lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions or
other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National
Assembly." Notably, the provision does not only make all such proclamations, orders, decrees, etc. "part of the law
of the land", in which case, it would have been perhaps possible to argue, that they had just been accorded the
status of legislative enactments, ordinarily subject to possible attack on constitutional grounds. The provision
actually goes further. It expressly ordains that the proclamations, orders, etc. referred to should "remain valid, legal,
binding, and effective" ... until revoked, modified, repealed or superseded in the manners therein stipulated. What is
more, the provision refers to and contemplates not only proclamations, orders, decrees, instructions and acts of
executive character, but even those essentially legislative, as may be gathered from the nature of the proclamations,
decrees, orders, etc. already existing at the time of the approval of the draft constitution and of the acceptance
thereof by the people. Accordingly, and because there is no doubt that Proclamation 1081 and General Order No. 2,
herein challenged, are among the proclamations and orders contemplated in said provision, the Court has no
alternative but to hold, as it hereby holds, in consonance with the authoritative construction by the Constitutional
Convention of the fundamental law of the land, that Proclamation 1081 of President Marcos placing the Philippines
under martial law as well as General Order No. 2, pursuant to which petitioners are either in custody or restrained of
their freedoms "until otherwise so ordered by (the President) or (his) duly designated representative" are valid, legal,
binding and effective, and consequently, the continued detention of petitioner Aquino as well as the constraints on
the freedoms of the other petitioners resulting from the conditions under which they were released from custody are
legal and constitutional. We feel We are confirmed in this conclusion by the results of the referendum of July 27-28,
1.473 in which 18,052,016 voter gave their affirmative approval to the following question:
Under the present constitution the President, if he so desires, can continue in office beyond 1973.
Do you want President Marcos to continue beyond 1973 and finish the reforms he has initiated
under Martial law?
We hasten to add to avoid misunderstanding or confusion of concepts, that it is not because of the fiat or force of
the New Constitution itself that the transitory provision is being relied upon for the purposes of the instant petitions.
At this point, and without prejudice to looking into the matter insofar as other issues and other cases affecting
martial law and the orders issued under it are concerned, all that We say is that the said provision constitutes an
authoritative contemporary construction of the martial law clause of the Constitution giving light regarding the
emergency powers that the Executive may exercise after its proclamation.
B
But petitioner Diokno
17
would dilute the force of this conclusion by trying to find fault with the dispositive portion of the
decision of this Court in the Ratification Cases. He contends that actually, six justices rendered opinions expressly holding
that the New Constitution has not been validly ratified in accordance with Article XV of the 1935 Constitution and that the
said dispositive portion "is not consistent with their findings, which were also the findings of the majority of the Court."
Otherwise stated, the position of petitioner Diokno is that the decision in the Ratification Cases has no binding legal force
as regards the question of whether or not the New Constitution is indeed in force and effect. This is practically an attempt
to make the Court resolve the same points which counsels for the petitioners in the Ratification Cases submitted to the
Court on the last day for the finality of the decision therein, but without asking for either the reconsideration or modification
thereof, because they merely wanted to record for posterity their own construction of the judgment of the Court.
18
Without in any way attempting to reopen the issues already resolved by the Court in that decision, but for the sake
of erasing any doubt as to the true import of Our judgment therein, and in order that those who would peruse the
same may not be led astray by counsels misconstruction thereof, the writer feels it is here opportune to say a few
words relative to petitioners observations, considering specially that Our discussion above is predicated on the
premise that the New Constitution is in full force and effect.
To start with, it is evident that the phrase in question saying that "there is no further judicial obstacle to the New
Constitution being considered in force and effect" was in actual fact approved specifically by the members of the
Court as the juridical result of their variant separate opinions. In fact, even those who dissented, except Justice
Zaldivar, accepted by their silence the accuracy of said conclusion.
19
Had any of the other justices, particularly, Chief
Justice Makalintal and Justice Castro felt that their joint opinion did not justify such a judgment, they would have certainly
objected to its tenor, as Justice Zaldivar did. (See footnote 11). Surely, it is not for anyone to say now that the Court
misstated its judgment.
In the particular case of Counsels Taada and Arroyo, while it is true that on the last day for the finality of that
decision, they filed a "Constancia", separately from the Manifestation to the same effect of the other counsel,
discussing extensively the alleged inconsistency between the collective result of the opinions of the majority of the
Court and the dispositive portion of the judgment, like the other counsel, however, they did not make any prayer for
relief, stating that their only purpose is "to save our people from being misled and confused, in order to place things
in their proper perspective, and in order to keep faith with the 1935 Constitution. ... so that when history passes
judgment upon the real worth and meaning of the historic Resolution of this Honorable Court promulgated on March
31, 1973, it may have all the facts before it," for which reason, the majority of the Court, over the dissent of Justices
Zaldivar, Antonio, Esguerra and the writer, did not consider it necessary to act, believing it was not exactly the
occasion to disabuse the minds of counsels about the juridical integrity of the Courts actuation embodied in the
resolution. In a sense, therefore, said counsels should be deemed to be in estoppel to raise the same points now as
arguments for any affirmative relief, something which they did not ask for when it was more appropriate to do so.
In the second place, laying aside the division of views among the members of the Court on the question of whether
or not there has been compliance with the provisions of Article XV of the 1935 Constitution, the vital and decisive
fact is that the majority of the Court held that the question of whether or not the New Constitution is already in force
and effect is a political question and the Court must perforce defer to the judgment of the political departments of the
government or of the people in that respect. In is true some of the Justices could not find sufficient basis for
determining whether or not the people have accepted the New Constitution, but, on that point, four Justices,
Justices Makasiar, Antonio, Esguerra and the writer, did vote categorically in the affirmative, while two Justices, then
Chief Justice Concepcion and Justice Zaldivar, voted in the negative. And in the joint opinion of now Chief Justice
Makalintal and Justice Castro, it is crystal clear that the reference therein to their inability to accurately appraise the
peoples verdict was merely casual, the thrust of their position being that what is decisive is the Presidents own
attitude regarding the situation, that is, whether he would take the report of the Katipunan ng mga Barangay to the
effect that the people have approved and ratified the New Constitution as definitive and final or he would prefer to
submit the new charter to the same kind of election which used to be held for the ratification of constitutional
amendments, his decision either way not being subject to judicial inquiry. Stated differently, our distinguished
colleagues were of the view that whether or not the New Constitution may be held to have been duly ratified
pursuant to Article XV of the 1935 Constitution and even their own negative conclusion in such respect, have no
bearing on the issue of the enforceability of the New Constitution on the basis of its having been accepted by the
people, and that although they were not possessed of sufficient knowledge to determine this particular fact, the
Presidents own finding thereon is conclusive upon the Court, since, according to them such a decision is political
and outside the pale of judicial review. To quote their own words:
However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, as
certified by the President in Proclamation No. 1102, was not in accordance with the constitutional
and statutory procedure laid down for the purpose does not quite resolve the questions raised in
these cases. Such a finding, in our opinion, is on a matter which is essentially justiciable, that is,
within the power of this Court to inquire into. It imports nothing more than a simple reading and
application of the pertinent provisions of the 1935 Constitution, of the Election Code and of other
related laws and official acts. No question of wisdom or of policy is involved. But from this finding it
does not necessarily follow that this Court may justifiably declare that the Constitution has not
become effective, and for that reason give due course to these petition or grant the writs herein
prayed for. The effectivity of the Constitution in the final analysis, is the basic and ultimate question
which considerations other than the competence of this Court, are relevant and unavoidable.
xxx xxx xxx
If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such
ratification as well as the establishment of the government thereunder formed part of a revolution,
albeit peaceful, then the issue of whether or not that Constitution has become effective and, as a
necessary corollary whether or not the government legitimately functions under it instead of under
the 1935 Constitution, is political and therefore non-judicial in nature. Under such a postulate what
the people did in the Citizens Assemblies should be taken as an exercise of the ultimate sovereign
powers. If they had risen up in arms and by force deposed the then existing government and set up
a new government in its place, there could not be the least doubt that their act would be political and
not subject to judicial review but only to the judgment of the same body politic act, in the context just
set forth, is based on realities. If a new government gains authority and dominance through force, it
can be effectively challenged only by a stronger force; no Judicial review is concerned, if no force
had been resorted to and the people. in defiance of the existing Constitution but peacefully because
of the absence of any appreciable opposition, ordained a new Constitution and succeeded in having
the government operate under it. Against such a reality there can be no adequate judicial relief; and
so courts forbear to take cognizance of the question but leave it to be decided through political
means.
xxx xxx xxx
But then the President, pursuant to such recommendation. did proclaim that the Constitution had
been ratified and had come into effect. The more relevant consideration, therefore, as far as we can
see, should be as to what the President had in mind in convening the Citizens Assemblies,
submitting the Constitution to them and proclaiming that the favorable expression of their views was
an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication,
are necessarily involved.
In positing the problem within an identifiable frame of reference we find no need to consider whether
or not the regime established by President Marcos since he declared martial law and under which
the new Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotal
question is rather whether or not the effectivity of the said Constitution by virtue of Presidential
Proclamation No. 1102, upon the recommendation of the Katipunan ng mga Barangay, was intended
to be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and
statutory provisions prescribing the procedure for ratification. We must confess that after considering
all the available evidence and all the relevant circumstances we have found no reasonably reliable
answer to the question.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the
President. We have earlier made reference to subjective factors on which this Court, to our mind, is
in no position to pass judgment. Among them is the Presidents own assessment of the will of the
people as expressed through the Citizens Assemblies and of the importance of the 1973
Constitution to the successful implementation of the social and economic reforms he has started or
envisioned. If he should decide that there is no turning back, that what the people recommended
through the Citizens Assemblies, as they were reported to him, demanded that the action he took
pursuant thereto be final and irrevocable, then judicial review is out of the question.
In articulating our view that the procedure of ratification that was followed was not in accordance with
the 1935 Constitution and related statutes, we have discharged our sworn duty as we conceive it to
be. The President should now perhaps decide, if he has not already decided, whether adherence to
such procedure is weighty enough a consideration, if only to dispel any cloud of doubt that may now
and in the future shroud the nations Charter.
In the deliberation of this Court one of the issues formulated for resolution is whether or not the new
Constitution, since its submission to the Citizens Assemblies, has found acceptance among the
people, such issue being related to the political question theory propounded by the respondents. We
have not tarried on the point at all since we find no reliable basis on which to form a judgment. Under
a regime of martial law, with the free expression of opinions through the usual media vehicles
restricted, we have no means of known, to the point of judicial certainty, whether the people have
accepted the Constitution. In any event, we do not find the issue decisive insofar as our vote in these
cases is concerned. To interpret the Constitution that is judicial. That Constitution should be
deemed in effect because of popular acquiescence that is political, and therefore beyond the
domain of judicial review. (JAVELLANA -vs- THE EXECUTIVE SECRETARY 50 SCRA 161-162;
164; 166-167; 170-171)
20
It only remains for the writer to reiterate here a few considerations already touched in the separate opinions in the
Ratification Cases which in his considered view may well be taken into account by those who would read again the
judgment of the Court therein. .
1
Having come to the conclusion that the question of whether or not the New Constitution is legally in force and effect
is political and outside the domain of judicial review, it was not strange that the Court should simply rule that there
should be no further judicial obstacle to the enforcement of the charter, should that be, as it appeared to be, the
intent of those actually in authority in the government. It is implicit in the political question doctrine that the Courts
opinion as to the correctness of the legal postures involved is of no moment, for the simple reason that the remedy
against any error therein lies either with the sovereign people at the polls or with the Political department concerned
in the discharge of its own responsibility under the fundamental law of the land, and not with the Court. Even if it
were otherwise desirable, if only for the benefit of those interested in the settlement of the specific legal problem
posed, any categorical ruling thereon would transcend the bounds of judicial propriety. For the Court to hold it is
without power to decide and in the same breath to actually decide is an intolerable incongruity, hence any
pronouncement or holding made under the circumstances could have no more force than an obiter dictum, no
matter how rich in erudition and precedential support. Consequently, to say that the New Constitution may be
considered by those in authority to be in force and effect because such is the mandate expressed by the people in
the form announced by the Presidents but a proper manner of expressing the Courts abstention from wresting the
power to decide from those in whom such prerogative is constitutionally lodged. This is neither to dodge a
constitutional duty nor to refrain from getting involved in a controversy of transcendental implications it is plain
adherence to a principle considered paramount in republican democracies wherein the political question doctrine is
deeply imbedded as an inextricable part of the rule of law. It is an unpardonable misconception of the doctrine for
anyone to believe that for the Supreme Court to bow to the perceptible or audible voice of the sovereign people in
appropriate instances is in any sense a departure from or a disregard of law as applied to political situations, for the
very rule that enjoins judicial interference in political questions is no less a legal principle than any other that can be
conceived, Indeed, just as, in law, judicial decision rendered within ambit of the courts authority deserve the respect
of the people, by the same token, the peoples verdict on what inherently is theirs to decide must be accorded due
deference by the judiciary. Otherwise, judges would be more powerful than the people by whom they have been
given no more prerogative than to act solely within the boundaries of the judicial sphere. Withal, a court may err in
finding that a given situation calls for its abstention, in the same way it may commit mistakes of judgment about any
order matter it decides, still its decision, conceding its honesty, cannot be faulted as an assault on the rule of law.
Thus, in a broad sense, it may be said that it is a necessary corollary of the truth that the administration of justice in
courts presided be human beings cannot perfect that even the honest mistake of a judge is law.
The writer further submits that, as pointed out in his separate opinion in the Ratification Cases, those who
vehemently insist that the referendum of January 10-15, 1973 was not the kind of election contemplated in Article
XV of the 1935 Constitution seem to overlook that the said provision refers only to the mode of ratifying
amendments thereto and makes no mention at all a new constitution designed to supersede it is to be submitted for
approval by the people. Indeed, the writer would readily agree, as was already made clear in the aforementioned
opinion, that if what were submitted to the people in the January, 1973 referendum had been merely an amendment
or a bundle of amendments to the 1935 Constitution, the results thereof could not constitute a valid ratification
thereof. But since it was a whole integral charter that the Citizens Assemblies had before them in that referendum, it
is evident that the ratification clause invoked cannot be controlling.
That a new constitution is not contemplated is indicated in the text of the provision it itself. It says: "Such
amendments shall be valid as part of this Constitution when approved by a majority of the votes cast ...." How can it
be ever conceived that the 1973 Constitution which is an entire charter in itself, differing substantially in its entirely
and radically in most of its provisions, from the 1935 Constitution be part of the latter? In other words, the mode
ratification prescribed in Article XV is only for amendments that can be made part of the whole constitution,
obviously not to an entire charter precisely purported to supersede it.
And it is but logical that a constitution cannot and should not attempt to bind future generations as to how they would
do away with it in favor of one suitable to their more recent needs and aspirations. It is true that in Tolentino vs.
Comelec, 41 SCRA 702, this Court, thru the writer, held that:
In our discussion of the issue of jurisdiction, We have already made it clear that the Convention
came into being by a call of a joint session of Congress pursuant to Section 1 of Article XV of the
Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to
its internal operation and the performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all subject to all the provisions of the
existing Constitution. Now, We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV. This must be so, because it is
plain to Us that the framers of the Constitution took care that the process of amending the same
should not be undertaken with the same ease and facility in changing an ordinary legislation.
Constitution making is the most valued power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution affects the lives, fortunes,
future and every other conceivable aspect of the lives of all the people within the country and those
subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution
worthy of the people for which it is intended must not be prepared in haste without adequate
deliberation and study. It is obvious that correspondingly, any amendment of the Constitution itself,
and perforce must be conceived and prepared with as much care and deliberation. From the very
nature of things, the drafters of an original constitution, as already observed earlier, operate without
any limitations, restraints or inhibitions save those that they may impose upon themselves. This is
not necessarily true of subsequent conventions called to amend the original constitution. Generally,
the framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or
changed, not only for reasons purely personal but more importantly, because written constitutions
are supposed to be designed so as to last for some time, if not for ages, or for, at least, so long as
they can be adopted to the needs and exigencies of the people, hence, they must he insulated
against precipitate and hasty actions motivated by more or less passing political moods or fancies.
Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less
stringent, made so by the people themselves, in regard to the process of their amendment. And
when such limitations or conditions are so incorporated in the original constitution, it does not lie in
the delegates of any subsequent convention to claim that they may ignore and disregard such
conditions because they are as powerful and omnipotent as their original counterparts. (At page 724-
726) .
But this passage should not be understood, as it was not meant to be understood, to refer to the peoples
inalienable right to cast aside the whole constitution itself when they find it to be in their best interests to do so. It
was so indicated already in the resolution denying the motion for reconsideration:
This is not to say that the people may not, in the exercise of their inherent revolutionary powers,
amend the Constitution or promulgate an entirely new one otherwise, but as long as any amendment
is formulated and submitted under the aegis of the present Charter, any proposal for such
amendment which is not in conformity with the letter, spirit and intent of the provision of the Charter
for effecting amendments cannot receive the sanction of this Court. (Resolution of Motion for
reconsideration, Tolentino vs. Comelec G.R. No. L-34150, February 4, 1971) .
For it is rather absurd to think that in approving a new fundamental law with which they would replace the existing
one, they have to adhere to the mandates of the latter, under pain of getting stuck with it, should they fall. One can
easily visualize how the evil forces which dominated the electoral process during the old society would have gone
into play in order to stifle the urge for change, had the mode of ratification in the manner of past plebiscites been the
one observed in the submission of the New Constitution. To reiterate what the writer said in the Ratification Cases:
Consider that in the present case what is involved is not just an amendment of a particular provision
of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitution
that is being proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the
petitioner in the case I have just referred to is, now inviting Our attention to the exact language of
Article XV and suggesting that the said Article may be strictly applied to proposed amendments but
may hardly govern the ratification of a new Constitution. It is particularly stressed that the Article
specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be
valid as part of this Constitution." Indeed, how can a whole new Constitution be by any manner of
reasoning an amendment to any other constitution and how can it, if ratified, form part of such other
constitution? ...
It is not strange at all to think that the amending clause of a constitution should be confined in its
application only to proposed changes in any part of the same constitution itself, for the very fact that
a new constitution is being adopted implies a general intent to put aside the whole of the old one,
and what would be really incongruous is the idea that in such an eventuality, the new Constitution
would subject its going into effect any provision of the constitution it is to supersede, to use the
language precisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. My
understanding is that generally, constitutions are self-born, they very rarely, if at all, come into being,
by virtue of any provision of another constitution. This must be the reason why every constitution has
its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the
referendum and provided for such a method to be used in the ratification of the New Constitution, I
would have had serious doubts as to whether Article XV could have had priority of application."
(Javellana -vs- The Executive Secretary-50 SCRA 197-198).
Since in the withdrawal motion of petitioner Diokno, the whole trust of his posture relative to the alleged non-
enforceability of the Constitution of 1973 revolves around supposed non-compliance in its ratification, with Article XV
of the 1935 Charter, and inasmuch as it is evident that the letter and intent of that invoked provision do not warrant,
as has just been explained, the application thereof to the New Constitution, for the simple reason that the same is
not in fact and in law as well as in form and in intent a mere amendment to the Old Constitution, but an integrally
new charter which cannot conceivably be made just a part thereof, one cannot but view said motion to withdraw as
having been designed for no other purpose than to serve as a vehicle for the ventilation of petitioners political rather
than legal outlook which deserves scant consideration in the determination of the merits of the cases at bar.
In any event, that a constitution need not be ratified in the manner prescribed by its predecessor and that the
possible invalidity of the mode of its ratification does not affect its enforceability, as long as the fact of its approval by
the people or their acquiescence thereto is reasonably shown, is amply demonstrated in the scholarly dissertation
made by our learned colleague, Mr. Justice Felix V. Makasiar, in his separate opinion in the Ratification Cases,
which carried the concurrence of Justices Antonio, Esguerra and the writer. And that what took place in the
Philippines in January, 1973 is not an unprecedented practice peculiar to our country, is likewise plainly shown
therein, since it appears that no less than the Constitution of the United States of America, the nation whose close
adherence to constitutionalism petitioners would want the Filipinos to emulate, was also ratified in a way not in
conformity with the Articles of Confederation and Perpetual Union, the Constitution which it replaced, and the reason
for it was only because those in authority felt that it was impossible to secure ratification, if the amendment clause of
the Articles were to be observed, and so they resorted to extra-constitutional means to accomplish their purpose of
having a new constitution. Following is the pertinent portion of Mr. Justice Makasiars illuminating disquisition based
on actual historical facts rather than on theoretical and philosophical hypotheses on which petitioners would seem to
rely:
The classic example of an illegal submission that did not impair the validity of the ratification or
adoption of a new Constitution is the case of the Federal Constitution of the United States. It should
be recalled that the thirteen (13) original states of the American Union which succeeded in
liberating themselves from England after the revolution which began on April 19, 1775 with the
skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at
Yorktown, Virginia, on October 19,1781 (Encyclopedia Brit., Vol. 1, 1933 Ed., p. 776) adopted
their Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratified
on March 1, 1781 (Encyclopedia Brit., Vol. 11, 1966 Ed., p. 525). About six years thereafter, the
Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal
Constitutional Convention "for the sole and express purpose of revisaing the articles of
confederation.... (Appendix 1, The Federalist, Modern Library ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of
Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed by every state, and the
union shall be perpetual; nor shall any alteration at any time hereafter be made in
any of them; unless such alteration be agreed to in a congress of the united states,
and be afterwards confirmed by the legislatures of every state. (See the Federalist,
Appendix 11, Modern Library Ed., 1937, p. 584; emphasis supplied).
But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for
the alteration and for the ratification of the Federal Constitution as drafted by the Philadelphia
Convention were not followed. Fearful that the said Federal Constitution would not be ratified by the
state legislatures as prescribed, the Philadelphia Convention adopted a resolution requesting the
Congress of the Confederation to pass a resolution providing that the Federal Constitution should be
submitted to elected state conventions and if ratified by the conventions in nine (9) states, not
necessarily in all thirteen (13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University recorded that:
It would have a counsel of perfection to consign the new Constitution to the tender mercies of the
legislatures of each and all of the 13 states. Experience clearly indicated that ratification would have
had the same chance as the scriptural camel passing thru the eye of a needle. It was therefore
determined to recommend to Congress that the new Constitution be submitted to conventions in the
several states specially elected to pass and when it should be ratified by nine of the thirteen
states.... (The Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix
emphasis supplied).
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians would be
Anti federalist, provided for ratification of the Constitution by popularly elected
conventions in each state. Suspecting that Rhode Island, at least, would prove
recalcitrant, it declared that the Constitution would go into effect as soon as nine
states ratified. The convention method had the further advantage that judges,
ministers, and others ineligible to state legislatures could be elected to a convention.
The nine-state provision was, of course, mildly revolutionary. But the Congress of the
Confederation, still sitting in New York to carry on federal government until relieved,
formally submitted the new constitution to the states and politely faded out before the
first presidential inauguration. (The Oxford History of the Am. People by Samuel Eliot
Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last
four states on May 29, 1790 (12 C. J. p. 679 footnote, 16 C.J.S. 27 by the state conventions and
not by all thirteen (13) state legislatures as required by Article XIII of the Articles of Confederation
and Perpetual Union aforequoted and in spite of the fact that the Federal Constitution as originally
adopted suffers from two basic infirmities, namely the absence of a bill of rights and of a provision
affirming the power of judicial review.
The liberties of the American people were guaranteed by the subsequent amendments to the
Federal Constitution. The doctrine of judicial review has become part of American constitutional law
only by virtue of a judicial pronouncement by Chief Justice Marshall in the case of Marbury vs.
Madison(1803, 1 Branch 137).
Until this date, no challenge has been launched against the validity of the ratification of the American
Constitution, nor against the legitimacy of the government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326- 330), which enunciated the
principle that the validity of a new or revised Constitution does not depend on the method of its
submission or ratification by the people, but on the fact of fiat or approval or adoption or
acquiescence by the people, which fact of ratification or adoption or acquiescence is all that is
essential, the Court cited precisely the case of the irregular revision and ratification by state
conventions of the Federal Constitution, thus:
No case identical in its facts with the case now under consideration has been called
to our attention, and we have found none, We think that the principle which we apply
in the instant case was very clearly applied in the creation of the constitution of the
United States. The convention created by a resolution of Congress had authority to
do one thing, and one only, to wit, amend the articles of confederation. This they did
not do, but submitted to the sovereign power, the people, a new constitution. In this
manner was the constitution of the United States submitted to the people and it
became operative as the organic law of this nation when it had been properly
adopted by the people.
Pomeroys Constitutional Law, p. 55, discussing the convention that formulated the
constitution of the United States, has this to say "The convention proceeded to do,
and did accomplish, what they were not authorized to do by a resolution of Congress
that called them together. That resolution plainly contemplated amendments to the
articles of confederation, to be submitted to and passed by the Congress, and
afterwards ratified by all the state legislatures, in the manner pointed out by the
existing organic law. But the convention soon became convinced that any
amendments were powerless to effect a cure; that the disease was too deeply
seated to be reached by such tentative means. They saw the system they were
called to improve must be totally abandoned, and that the national idea must be re-
established at the center of their political society. It was objected by some members,
that they had no power, no authority, to construct a new government. They had no
authority, if their decisions were to he final; and no authority whatever, under the
articles of confederation, to adopt the course they did. But they knew that their labors
were only to be suggestions; and that they as well as any private individuals, and any
private individuals as well as they, had a right to propose a plan of government to the
people for their adoption. They were, in fact, a mere assemblage of private citizens,
and their work had no more binding sanction, than a constitution drafted by Mr.
Hamilton in his office, would have had. The people, by their expressed will,
transformed this suggestion, this proposal, into an organic law, and the people might
have done the same with a constitution submitted to them by a single citizen.
xxx xxx xxx
... When the people adopt a completely revised constitution, the framing or submission of the
instrument is not what gives its binding force and effect. The fiat of the people, and only the fiat of
the people, can breathe life into a Constitution.
... We do not hesitate to say that a court is never justified in placing by implication a limitation upon
the sovereign. This would be an authorized exercise of sovereign power by the court. (In State v.
Swift 69 Ind. 505, 519, the Indiana Supreme Court said: The people of a State may form an original
constitution, or abrogate an old one and form a new one, at and time, without and political restriction
except the constitution of the United States; .... (37 SE 327-328, 329, emphasis supplied.)
In the 1903 case of Weston vs. Ryan, the court held:
It remains to be said that if we felt at liberty to pass upon this question, and were
compeller to hold that the act of February 23, 1887, is unconstitutional and void, it
would not, in our opinion, by any means follow that the amendment is not a part of
our state Constitution. In the recent case of Taylor vs. Commonwealth (Va.) 44 S.E.
754, the Supreme Court of Virginia hold that their state Constitution of 1902, having
been acknowledged and accepted by the officers administering the state
government, and by the people, and being in force without t opposition must be
regarded as an existing Constitution, irrespective of the question as to whether or not
the convention which promulgated it had authority so to do without submitting it to a
vote of the people. InBrittle v. People, 2 Neb. 198, is a similar holding as to certain
provisions of the Nebraska Constitution of 1886, which were added by the
Legislature at the requirement of Congress, though never submitted to the people for
their approval. (97 NW 349-350; emphasis supplied).
Against the decision in the Wheeler case, supra., confirming the validity of the ratification and
adoption of the American Constitution, in spite of the fact that such ratification was a clear violation
of the prescription on alteration and ratification of the Articles of Confederation and Perpetual Union,
petitioners in G. R. No. L-36165 dismissed this most significant historical fact by calling the Federal
Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16,
Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the
requirement that the Articles of Confederation and Perpetual Union can be amended only with the
consent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merely
refers to the footnotes on the brief historical account of the United States Constitution on p. 679 of
Vol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford History
of the American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of
Confederation and Perpetual Union in Chapter XVIII captioned Revolutionary Constitution Making,
1775 1781 (pp. 270-281). In Chapter XX on The Creative Period in Politics, 1785-1788, Professor
Morison delineates the genersis of the Federal Constitution, but does not refer to it even implicitly as
a revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered
revolutionary from the viewpoint of McIver if the term revolution is understood in its WIDER sense to
embrace decisive changes in the character of government, even though they do not involve the
violent overthrow of an established order, ... (R.M. MacIver, The Web of Government, 1965 ed., p.
203).
It is rather ridiculous to refer to the American Constitution as a revolutionary constitution, The
Artycles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged
as it was during the war of independence was revolutionary constitution of the thirteen (13) states. In
the existing Federal Constitution of the United States which was adopted seven (7) or nine (9) years
after the thirteen (13) states won their independence and long after popular support for the
government of the Confederation had stabilized was not a product of a revolution. The Federal
Constitution was a creation of the brain and purpose of man in an era of peace. It can only be
considered revolutionary in the sense that it is a radical departure from its predecessor, the Articles
of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the United States is not the
successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so
obvious that no further refutation is needed. (50 SCRA 209-215) .
Moreover, whether a proposal submitted to the people is just an amendment to an existing constitution within the
contemplation of its amendment clause or is a new charter not comprehended by its language may not be
determined solely by the simple processes of analysis of and comparison between the contents of one and the
other. Very much depends on what the constituent assembly, reflecting its understanding of the desire of the people
it represents, actually intends its handiwork to be, as such intent may be deduced from the face of the document
itself. For the truth is that whatever changes in form and in substance a constitution may undergo, as long as the
same political, social and economic ideologies as before continue to be the motivation behind such changes, the
result can never be, in a strict sense, a new constitution at all. Indeed, in such circumstance, any alteration or
modification of any provision of a constitution, no matter how extensive, can always he traced as founded on its own
bedrock, thereby proving identity. It is therefore the expressed desire of the makers of the charter that is decisive.
And that is why the New Constitution has its own effectivity clause which makes no reference howsoever to Article
XV of the past charter.
21
Now, how the founding fathers of America must have regarded the difference between a constitutional amendment,
on the one hand, and a new constitution, on the other, when they found the Articles of Confederation and Perpetual
Union no longer adequate for the full development of their nation, as can be deduced from the historical account
above, is at least one case in point they exercised their right to ratify their new fundamental law in the most
feasible manner, without regard to any constitutional constraints. And yet, it is the constitution that is reputed to have
stood all tests and was, in fact, the model of many national constitutions, including our own of 1935, if it cannot be
accurately regarded also as the model of the present one.
With the foregoing considerations in mind, it can be readily seen how pointless it is to contend, as petitioner Diokno
does in his motion to withdraw, that what he deems as the failure of the January, 1973 referendum to conform with
the requirements of Article XV of the 1935 Constitution detracts from the enforceability of the New Constitution, in
the light of the Presidents assertion contained in Proclamation 1102 that it has been approved and ratified by the
people, coupled with his evident firm and irreversible resolution to consider it to have been, indeed, duly ratified, and
in the face of the indisputable fact that the whole government effectively in control of the entire Philippine territory
has been operating under it without any visible resistance on the part of any significant sector of the populace. To
allude to the filing of the petitions in the Plebiscite and the Ratification Cases and the occasional appearances in
some public places of some underground propaganda which, anyway, has not cut any perceptible impression
anywhere, as indicative or evidence of opposition by the people to the New Constitution would be, to use a
commonplace but apt expression, to mistake the trees for the forest.
It is thus abundantly clear that the passionate and tenacious raciocination in petitioner Dioknos withdrawal motion
tending to assail the cogency of our opinions and their consistency with the judgment in the Ratification Cases, to
the extent of using terms that could signify doubt in the good faith and intellectual integrity of some members of the
Court and of trying to embarrass the Court itself before the bar of history, does not in fact have any plausible basis
whatsoever.
C O N C L U S I O N
The instant cases are unique. To Our knowledge never before has any national tribunal of the highest authority
been called upon to pass on the validity of a martial law order of the Executive issued in the face of actual or
imminent danger of a rebellion threatening the very existence of the nation. The petitions herein treat of no more
than the deprivation of liberty of the petitioners, but in reality what is involved here is the legitimacy of the
government itself. No Supreme Court of any other country in the world, We reiterate, has ever been confronted with
such a transcendental issue.
This is, therefore, a decision that affects not the petitioners alone, but the whole country and all our people. For this
reason, We have endeavored to the best of our ability to look at all the issues from every conceivable point of view.
We have gone over all the jurisprudence cited by the parties, the writings of learned and knowledgeable authorities
they have quoted and whatever We could avail of by Ourselves. We trust We have not misunderstood any of the
contentions of the parties and their able and learned counsels and that We have not overlooked any authority
relevant to them. And We must say We perceive no cause to downgrade their love of and loyalty to our common
motherland even if differences there are between our convictions as to how to earlier attain the national destiny.
Indeed, We have not considered as really persuasive any insinuations of motivations born of political partisanship
and personal ambitions.
We do not mean to belittle or depreciate foreign jurisprudence, but We have deliberately refrained from relying on
alien opinions, judicial or otherwise, in order to stress that the Filipinos can solve their own problems with their own
resources intellectual or otherwise. Anyway, We doubt if there is enough relevant parallelism between occurrences
in other countries passed upon by the courts with what is happening here today.
Principally, by this decision, We hold that the power to proclaim martial law is lodged by the Constitution exclusively
in the Executive, but the grant of judicial power to the Supreme Court also by the Constitution is plenary and total
and, therefore, when it is a matter of judicial notice, because it is commonly known by the general public or is
capable of unquestionable demonstration, that any particular declaration of martial law is devoid of any of the
constitutionally required bases, the Court has the full authority and it would not hesitate to strike down any such
improvident proclamation and to adjudge that the legitimate government continue without the offending Executive,
who shall be replaced in accordance with the rules of succession provided in the existing Constitution and laws. In
the cases at bar, however, the Court, with the abstention of only one member who has preferred not to emit any
opinion on the issue at this time, holds that the President had good and sufficient grounds in issuing Proclamation
1081, whether the same is examined in the light of its own recitals, as some Justices advocate, or of facts of judicial
notice together with those undisputed in the record, in the manner the rest of Us have actually tested it. We further
hold that in restraining the liberties of petitioners, the President has not overstepped the boundaries fixed by the
Constitution.
For doctrinal purposes, it is best to add to all the foregoing that a judicial challenge against the imposition of martial
law by the Executive in the midst of the actualities of a real assault against the territorial integrity and life of the
nation, inevitably calls for the reconciliation, which We feel We have been able to effectuate here, of two extremes in
the allocation of powers under the Constitution the resort by the Executive to the ultimate weapon with which the
fundamental law allows him to defend the state against factual invasion or rebellion threatening the public safety, on
the one hand, and the assertion by the Supreme Court of the irreducible plenitude of its judicial authority, on the
other. No other conflict of prerogatives of such total dimensions can conceivably arise from the operation of any
other two parts of the charter. This decision then could well be sui generis, hence, whatever has been said here
would not necessarily govern questions related to adverse claims of authority related to the lower levels of the
hierarchy of powers in the Constitution.
We humbly submit this decision to the judgment of all our people, to history and to the generations of Filipinos still
unborn, confident that it carries all that We know and all that We are. As We do this, We are fully aware that in this
critical stage of our life as a nation, our overriding need is unity. It is Our fervent hope that by this decision, We have
duly performed Our constitutionally assigned part in the great effort to reduce if not to eliminate the remaining
fundamental causes of internecine strife.
May Divine Providence continue to always keep the Philippines in the right paths of democracy, freedom and justice
for all!
J U D G M E N T
WHEREFORE, the petitions in all the above-entitled cases are dismissed. No costs.
A D D E N D U M
The following are my reasons for voting in favor of granting the motion to withdraw:
It is elementary that the remedy of habeas corpus exists only against involuntary confinement. The moment,
therefore, that after initially questioning the legality of his detention, the petitioner seeks withdrawal of his petition at
any stage of the case before judgment, his detention becomes in law automatically, by his own act, voluntary or with
his express consent, hence, the reason for further inquiry into the circumstances thereof ceases completely, and the
courts duty to proceed further and render judgment comes to an end. By allowing the withdrawal, no interest of
justice would be prejudiced, no juridical harm needing redress could be caused to anyone. Accordingly, the
petitioners motive for his withdrawal, whether expressed or unarticulated, are absolutely immaterial, albeit, in the
case at bar, petitioner himself suggests that, while acceding to his request, the members of the Court may express
their views thereon. (Sur-Rejoinder dated May 21, 1974, p. 3).
In the mind of the writer, the grounds alleged by petitioner Diokno and his counsel have an apparent tendency to
offend the dignity of the Court and to undermine the respect and faith of the people in its capacity to administer
justice. What is worse, they may be false and baseless, as they are emotional and personal. Unless properly
explained, they give the impression that movant is impeaching the integrity and good faith of some members of the
Court. In the premises, said petitioner and counsel could be required to show cause why they should not be held in
contempt of the Court, but there being no formal charge to such effect in the instant proceedings, and in order not to
confuse the discussion and resolution of the transcendental issues herein, it is preferable, and the Court has opted,
to take up the matter of the possible responsibility for contempt separately, either motu propio or upon the initiative
of whoever may allege to be aggrieved thereby. For the present, it has to be stated, however, that under no
circumstances may any party or counsel vent his personal feelings and emotions in any pleading or paper Bled with
the Court, particularly while his case is pending therein. Personalities that are directed towards the occupants of the
judicial office naturally mar the legal issues before them, correspondingly making more difficult their proper and
impartial resolution. Even if the judges concerned are actually, as they are supposed to be, unmoved by them, still
there can be no assurance that the litigants and the public in general will be convinced of their absolute impartiality
in their subsequent actuations, and to that extent, the interests of justice are bound to suffer. It is but in keeping with
the highest traditions of the judiciary that such improprieties are not allowed to pass unnoticed and are dealt with by
the court either moto propio or upon corresponding complaint, whether in an independent proceeding or as an
incident within the pending case. No court worthy of its position should tolerate them.
But assaults upon the dignity and integrity of the court, are one thing, and the issues of the case at hand are
another. Regardless of what the judge thinks is the belief of those concerned about the motivations of the courts
subsequent resolution of the issues, unless he inhibits himself from further acting in the case, circumstances
permitting, it is his inescapable duty to render judgment, taking care, of course, that he remains, in fact, objective
and impartial. It is, therefore, of no moment, for the purposes of disposing of petitioner Dioknos motion to withdraw,
whether or not the charges leveled by him and his counsel against the Court or any of its members are founded or
unfounded and whether or not the same constitute actionable misconduct on their part, as participants in the case
before Us and/or as members of the Bar and officers of the Court. Any possible action for such probable misconduct
has no bearing on the question of whether or not, observing the usual rules and practices, the Court should dismiss
his main petition, the alleged illegality of his detention having been duly cured by his voluntary submission thereto.
All these is not to say that I have not given thought to the imperative necessity of resolving the issues of public
interest raised in petitioner Dioknos petition. I can also see that it is important to the Government that he does not
escape the legal effects of the decision in these cases. But if these are the main reasons for denying his motion to
withdraw, I believe that the Governments apprehensions are rather unfounded. While I would not say that by his
withdrawal, petitioner impliedly admits the correctness of the stand of the Government, what with the avalanche of
protests against alleged injustice and supposed legal errors running through his pleadings, I am of the considered
view that in law, he cannot correctly pretend that the rulings of the Court in the other cases herein in respect to the
issues therein that are common with those of his petition are not binding on him at least by precedential force. And
inasmuch as in the cases not withdrawn, all the issues of public interest raised in his case will have to be resolved, I
do not see any purpose in insisting that he should remain a petitioner when he refuses, as a matter of conscience,
to await the unfavorable verdict he foresees in his own case, which he himself anticipates will not set him free
anyway. Of course, he protests that nothing he can say can convince the Court, and, on the other hand, perhaps,
the most technically accurate and palpably just decision the court may fashion will not convince him, but it has to be
a strange court that will yield to a litigants point of view just because he sincerely feels he is right, whereas it is not
unusual for a litigant to pretend not to see the correctness and justice of the courts judgment unfavorable to his
interests.
ANTONIO, J .:
These applications for writs of habeas corpus present for review Proclamation No. 1081 of the President of the
Philippines, placing the country under martial law on September 21, 1972, and the legality of the arrest and
detention of prisoners under the aforesaid proclamation. The issues posed have confronted every democratic
government in every clime and in every age. They have always recurred in times of crisis when the nations safety
and continued existence are in peril. Involved is the problem of harmonizing two basic interests that lie at the
foundation of every democratic constitutional system. The first is contained in Rosseaus formulation, the peoples
first intention is that the State shall not perish," in other words, the right of the State to its existence. The second are
the civil liberties guaranteed by the Constitution, which "imply the existence of an organized system maintaining
public order without which liberty itself would be lost in the excesses of unrestrained abuses. ..." (Cox vs. New
Hampshire, 312 U.S. 569 [1940]).
The petitions for habeas corpus initially raise the legality of the arrest and detention of petitioners. As the
respondents, however, plead, in defense, the declaration of martial law and the consequent suspension of the
privilege of habeas corpus, the validity of Proclamation No. 1081 is the ultimate constitutional issue.
Hearings were held on September 26 and 29 and October 6, 1972.
1
Meanwhile, some of the petitioners were allowed to withdraw their petitions.
2
Most of the petitioners were
subsequently released from custody under certain conditions and some of them insist that their cases have not become
moot as their freedom of movement is restricted.
3
As of this date, only petitioner Benigno Aquino, Jr. (L-35546) remains in
military custody.
On August 11, 1973, petitioner Benigno Aquino, Jr. was charged before the military commission with the crimes of
subversion under the Anti-Subversion Act (Republic Act No. 1700), murder and illegal possession of firearms. On
August 23, 1973, he filed an action for certiorari and prohibition (L-35546) with this Court, assailing the validity of his
trial before the military commission, because the creation of military tribunals for the trial of offenses committed by
civilians is unconstitutional in the absence of a state of war or status of belligerency; being martial law measures,
they have ceased with the cessation of the emergency; and he could not expect a fair trial because the President of
the Philippines had prejudged his case. That action is pending consideration and decision.
On December 28, 1973, petitioner Diokno moved to withdraw his petition (L-35539), claiming that there was delay in
the disposition of his case, and that as a consequence of the decision of this Court in Javellana v. Executive
Secretary (L36142, March 31, 1973) and of the action of the members of this Court in taking an oath to support the
New Constitution, he has reason to believe that he cannot "reasonably expect to get justice in this case."
Respondents oppose this motion on the ground that public interest or questions of public importance are involved
and the reasons given are factually untrue and contemptuous. On September 11, 1974, petitioner Diokno was
released from military custody. In view of his release, it was the consensus of the majority of the Court to consider
his case as moot. We shall now proceed to discuss the issues posed by the remaining cases.
1. Is the determination by the President of the Philippines of the necessity for the exercise of his power to declare
martial law political, hence, final and conclusive upon the courts, or is it justiciable and, therefore, his determination
is subject to review by the courts?
2. Assuming Lansang to be applicable, can it be said that the President acted arbitrarily in issuing Proclamation No.
1081?
3. Assuming that the issues are justiciable, can the Supreme Court upon the facts of record and those judicially
known to It now declare that the necessity for martial law has already ceased?
4. Under a regime of martial law, can the Court inquire into the legal justification for the arrest and detention as well
as the other constraints upon the individual liberties of the petitioners? In the affirmative, does It have any adequate
legal basis to declare that their detention is no longer authorized by the Constitution.
I
CONSTITUTION INTENDED STRONG EXECUTIVE
The right of a government to maintain its existence is the most pervasive aspect of sovereignty. To protect the
nations continued existence, from external as well as internal threats, the government "is invested with all those
inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to
every government as such, and as being essential to the exercise of its functions" (Mr. Justice Bradley, concurring
in Legal Tender Cases [US] 12 Wall. 457, 554, 556, 20 L. ed. 287, 314, 315). To attain this end, nearly all other
considerations are to be subordinated. The constitutional power to act upon this basic principle has been recognized
by all courts in every nation at different periods and diverse circumstances.
These powers which are to be exercised for the nations protection and security have been lodged by the
Constitution under Article VII, Section 10 (2) thereof, on the President of the Philippines, who is clothed with
exclusive authority to determine the occasion on which the powers shall be called forth.
The constitutional provision expressly vesting in the President the power to place "the Philippines or any part thereof
under martial law in case of invasion, insurrection or rebellion or imminent danger thereof when the public safety
requires it,"
4
is taken bodily from the Jones Law with the difference that the President of the United States had the power
to modify or vacate the action taken by the Governor-General.
5
Although the Civil Governor, under Section 5 of the
Philippine Bill of 1902, could, with the approval of the Philippine Commission, suspend the privilege of the writ of habeas
corpus no power to proclaim martial law was specifically granted. This power is not mentioned in the Federal Constitution
of the United States. It simply designates the President as commander-in-chief:
The President shall be Commander-in-Chief of the Army and Navy of the United States and of the
militia of the several states when called into actual service of the United States ...
6
Its absence in the Federal Constitution notwithstanding, President Abraham Lincoln during the Civil War placed
some parts of the country under martial law. He predicated the exercise of this power on his authority as
Commander-in-Chief of the Armed Forces and on the ground of extreme necessity for the preservation of the Union.
When not expressly provided in the Constitution, its justification, therefore, would be necessity. Thus some
authoritative writers view it as "not a part of the Constitution but is rather a power to preserve the Constitution when
constitutional methods prove inadequate to that end. It is the law of necessity."
7
Since the meaning of the term
"martial law" is obscure, as is the power exercisable by the Chief Executive under martial law, resort must be had to
precedents. Thus the powers of the Chief Executive under the Commander-in-Chief clause of the Federal Constitution
have been drawn not only from general and specific provisions of the Constitution but from historical precedents of
Presidential action in times of crises. Lincoln invoked his authority under the Commander-in-Chief clause of the Federal
Constitution for the series of extraordinary measures which he took during the Civil War, such as the calling of volunteers
for military service, the augmentation of the Army and Navy, the payment of $2 million from the un appropriated funds in
the Treasury to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence," the
blockade of Southern ports, the suspension of the writ of habeas corpus, the arrests and detentions of persons "who were
represented to him as being engaged in or contemplating "treasonable practices" all this for the most part was done
without the least statutory authorization from Congress. The actions of Lincoln "assert for the President," according to
Corwin, "an initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war
emergency."
8
The creation of public offices is conferred by the Federal Constitution to Congress. During World War 1,
however, President Wilson, on the basis of his power under the "Commander-in-Chief" clause of the Federal Constitution,
created "public offices," which were copied in lavish scale by President Roosevelt in World War II. "The principal canons
of constitutional interpretation are in wartime set aside," according to Corwin, "so far as concerns both the scope of
national power and the capacity of the President to gather unto himself all the constitutionally available powers in order
the more effectively to focus them upon the task of the hour."
9
The presidential power, "building on accumulated
precedents has taken on at times, under the stimulation of emergency conditions," according to two eminent
commentators, the "dimensions of executive prerogative as described by John Locke, of a power to wit, to fill needed
gaps in the law, or even to supersede it so far as may be requisite to realize the fundamental law of nature and
government, namely, that as much as may be all the members of society are to be preserved."
10
There is no question that the framers of the 1935 Constitution were aware of these precedents and of the scope of
the power that had been exercised by the Presidents of the United States in times of grave crisis. The framers of the
Constitution "were not only idealists but also practical-minded men." "While they abjured wars of aggression they
well knew that for the country to survive provisions for its defense had to be made."
11
II
TEXTUALLY DEMONSTRABLE CONSTITUTIONAL
COMMITMENT OF ISSUE TO THE PRESIDENT
Instead of making the President of the Philippines simply the commander-in-chief of all the armed forces, with
authority whenever it becomes necessary to call out such armed forces to prevent or suppress lawless violence,
invasion, insurrection, or rebellion, the framers of the 1935 Constitution expressly conferred upon him the exclusive
power and authority to suspend the privileges of the writ of habeas corpus or place the Philippines, or any part
thereof, under martial law.
The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence,
invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger
thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas
corpusor place the Philippines or any part thereof under martial law.
12
The condition which would warrant the exercise of the power was not confined to actual invasion, insurrection or
rebellion, but also to imminent danger thereof, when the public safety requires it. It is evident, therefore, that while
American Presidents derived these extraordinary powers by implication from the States right to self-preservation,
the President of the Philippines was expressly granted by the Constitution with all the powers necessary to protect
the nation in times of grave peril.
The safety and well-being of the nation required that the President should not be hampered by lack of authority but
was to be a "strong executive who could maintain the unity of the nation with sufficient powers and prerogatives to
save the country during great crises and dangers."
13
As Delegate Jose P. Laurel comprehensively explained:
... A strong executive he is intended to be, because a strong executive we shall need, especially in
the early years of our independent, or semi-independent existence. A weak executive is
synonymous with a weak government. He shall not be a monarch or a dictator in time of profound
and Octavian peace, but he virtually so becomes in an extraordinary emergency; and whatever may
be his position, he bulwarks normally, the fortifications of a strong constitutional government, but
abnormally, in extreme cases, he is suddenly ushered is as a Minerva, full-grown and in full panoply
of war, to occupy the vantage ground as the ready protector and defender of the life and honor of his
nation. (Emphasis Supplied.)
14
The concentration of an amplitude of power in the hands of the Commander-in-Chief of the Armed Forces of the
Philippines, who is at the same time the elected civilian Chief of State, is predicated upon the fact that it is he who
must initially shoulder the burden and deal with the emergency. By the nature of his position he possesses and
wields the extraordinary powers of self-preservation of the democratic, constitutional state. In times of crisis there is
indeed unification of responsibility and centralization of authority in the Chief Executive. "The concentration of
governmental power in a democracy faced by an emergency," wrote Rossiter, "is a corrective to the crisis
inefficiencies inherent in the doctrine of the separation of powers. ... In normal times the separation of powers forms
a distinct obstruction to arbitrary governmental action. By this same token in abnormal times it may form an
insurmountable barrier to decisive emergency action in behalf of the State and its independent existence. There are
moments in the life of any government when all the powers must work together in unanimity of purpose and action,
even if this means the temporary union of executive, legislative and judicial powers in the hands of one man. The
more complete the separation of powers in a constitutional system, the more difficult and yet the more necessary
will be their fusion in time of crisis." (Rossiter, Constitutional Dictatorship, 288-289.)
It was intended, however, that the exercise of these extraordinary powers is for the preservation of the State, its
democratic institutions, and the permanent freedom of its citizens.
III
RESPONSIBILITY IMPLIES BROAD
AUTHORITY AND DISCRETION
The conditions of war, of insurrection or rebellion, or of any other national emergency are as varied as the means
required for meeting them and it is, therefore, within the contemplation of the Constitution that t he Chief Executive,
to preserve the safety of the nation on those times of national peril, should have the broadest authority compatible
with the emergency in selecting the means and adopting the measures which in his honest judgment are necessary
for the preservation of the nations safety. "The circumstances that endanger the safety of nations are infinite," wrote
Alexander Hamilton, "and for this reason no constitutional shackles can wisely be imposed on the power to which
the care of it is committed ... This is one of those truths which to a correct and unprejudiced mind carries its own
evidence along with it, and may be obscured, but cannot be made plainer by argument or reasoning ... The means
ought to be in proportion to the end; the persons from whose agency the attainment of any end is expected ought to
possess the means by] which it is to be attained."
15
Mr. Madison expressed the same idea in the following terms: "It is
vain to impose constitutional barriers to the impulse of self-preservation. It is worse than in vain, because it plants in the
Constitution itself necessary usurpations of power."
16
"Unquestionably," wrote Chief Justice Taney in Luther v. Borden (7 How. 44, [18491, 12 L.ed. 600), "a State may
use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The power
is essential to the existence of every government, essential to the preservation of order and free institutions, and is
as necessary to the States of this Union as to any other government. The State itself must determine what degree of
force the crisis demands. And if the Government of Rhode Island deemed the armed opposition so formidable, and
so ramified throughout the State, as to require the use of its military force and the declaration of martial law, we see
no ground upon which this Court can question its authority."
In the Prize cases (17 L. ed. 476, [1863]), the Court ascribed to the President of the United States, by virtue of his
powers as Chief Executive and as Commander-in-Chief, the power which in Luther v. Borden is attributed to the
government as a whole, to treat of insurrection as a state of war, and the scene of the insurrection as a seat or
theater of war. As Justice Grier in the Prize cases significantly stated: "Whether the President in fulfilling his duties
as Commander-in-Chief, in suppressing an insurrection, has met with such hostile resistance, and a civil war of such
alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided
by him, and this court must be governed by the decisions and acts of the Political Department of the government to
which this power was entrusted. He must determine what degree of force the crisis demands. (Emphasis supplied.)
In Hirabayashi v. United States, where the Court upheld the curfew regulations affecting persons of Japanese
ancestry as valid military measures to prevent espionage and sabotage, there was again re-affirmance of the view
that the Constitution has granted to the President and to Congress in the exercise of the war powers a "wide scope
for the exercise of judgment and discretion in determining the nature and extent of the threatened danger and in the
selection of the means for resisting it."
Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the
vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and
discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means
for resisting it. Ex parte Quirin, supra (317 US 28, 29, ante, 12, 13, 63 S Ct 2); Prize Cases, supra (2 Black [US]
670, 17 L ed 477); Martin v. Mott, 12 Wheat. [US] 19, 29, 6 L ed 537, 540). Where, as they did here, the conditions
call for the exercise of judgment and discretion and for the choice of means by those branches of the Government
on which the Constitution has place the responsibility of war-making, it is not for any court to sit in review of the
wisdom of their action or substitute its judgment for theirs.
The actions taken must be appraised in the light of the conditions with which the President and
Congress were confronted in the early months of 1942, many of which, since disclosed, were then
peculiarly within the knowledge of the military authorities.
17
The measures to be taken in carrying on war and to suppress insurrection," according to Justice Swayne,
inStewart v. Kahn,
18
"are not defined. The decision of all questions rests wholly in the discretion of those
to whom the substantial powers involved are confided by the Constitution. In the latter case, the power is
not limited to victories in the field and the dispersion of the insurgent forces. It carries with it inherently the
power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen
from its rise and progress.
The thrust of those authorities is that the President as commander-in-chief and chief executive on whom is
committed the responsibility is empowered, indeed obliged, to preserve the state against domestic violence and
alien attack. In the discharge of that duty, he necessarily is accorded a very broad authority and discretion in
ascertaining the nature and extent of the danger that confronts the nation and in selecting the means or measures
necessary for the preservation of the safety of the Republic.
The terms "insurrection" and "rebellion" are in a large measure incapable of precise or exact legal definitions and
are more or less elastic in their meanings. As to when an act or instance of revolting against civil or political authority
may be classified as an "insurrection" or as a "rebellion" is a question better addressed to the President, who under
the Constitution is the authority vested with the power of ascertaining the existence of such exigencies and charged
with the responsibility of suppressing them. To suppress such danger to the state, he is necessarily vested with a
broad authority and discretion, to be exercised under the exigencies of each particular occasion as the same may
present itself to his judgment and determination. His actions in the face of such emergency must be viewed in the
context of the situation as it then confronted him. It is not for any court to sit in review of the wisdom of his action as
commander-in-chief or to substitute its judgment for his.
IV
NEED FOR UNQUESTIONING ADHERENCE
TO POLITICAL DECISION
It is, however, insisted that even with the broad discretion granted to the President by the Constitution in
ascertaining whether or not conditions exist for the declaration of martial law, his findings in support of such
declaration should nevertheless be subject to judicial review.
It is important to bear in mind that We are here dealing with a plenary and exclusive power conferred upon the Chief
Executive by the Constitution. The power itself is to be exercised upon sudden emergencies, and under
circumstances which may be vital to the existence of the government. A prompt and unhesitating obedience to
orders issued in connection therewith is indispensable as every delay and obstacle to its immediate implementation
may jeopardize the public interests.
By reason of his unique position as Chief Executive and as Commander-in-Chief of the Armed Forces of the
Philippines, it is he, more than any other high official of the government, who has the authority and the means of
obtaining through the various facilities in the civil and military agencies of the government under his command,
information promptly and effectively, from every quarter and corner of the state about the actual peace and order
condition of the country. In connection with his duty and responsibility, he is necessarily accorded the wise and
objective counsel of trained and experienced specialists on the subject. Even if the Court could obtain all available
information, it would lack the facility of determining whether or not the insurrection or rebellion or the imminence
thereof poses a danger to the public safety. Nor could the courts recreate a complete picture of the emergency in
the face of which the President acted, in order to adequately judge his military action. Absent any judicially
discoverable and manageable standards for resolving judicially those questions, such a task for a court to undertake
may well-nigh be impossible. On the other hand, the President, who is responsible for the peace and security of the
nation, is necessarily compelled by the Constitution to make those determinations and decisions. The matter is
committed to him for determination by criteria of political and military expediency. There exists, therefore, no
standard ascertainable by settled judicial experience by reference to which his decision can be reviewed by the
courts.
19
Indeed, those are military decisions and in their very nature, "military decisions are not susceptible of intelligent
and judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be
admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to
courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence.
Hence, courts can never have any real alternative to accepting the mere declaration of the authority that issued the order
that it was reasonably necessary from a military viewpoint."
20
He is necessarily constituted the judge of the existence of
the exigency in the first instance and is bound to act according to his belief of the facts.
Both reason and authority, therefore, dictate that the determination of the necessity for the exercise of the power to
declare martial law is within the exclusive domain of the President and his determination is final and conclusive upon
the courts and upon all persons. (cf. Fairman, Martial Rule and the Suppression of Insurrection, p. 771 .)
21
This
construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the
Constitution.
(a) Barcelon v. Baker.
The existing doctrine at the time of the framing and adoption of the 1935 Constitution was that of Barcelon v.
Baker (5 Phil. 87). It enunciated the principle that when the Governor-General with the approval of the Philippine
Commission, under Section 5 of the Act of Congress of July 1, 1902, declares that a state of rebellion, insurrection
or invasion exists, and by reason thereof the public safety requires the suspension of the Privileges of habeas
corpus, this declaration is held conclusive upon the judicial department of the government. And when the Chief
Executive has decided that conditions exist justifying the suspension of the privilege of the writ of habeas
corpus,courts will presume that such conditions continue to exist until the same authority has decided that such
conditions no longer exist. These doctrines are rooted on pragmatic considerations and sound reasons of public
policy. The "doctrine that whenever the Constitution or a statute gives a discretionary power to any person, such
person is to be considered the sole and exclusive judge of the existence of those facts" has been recognized by all
courts and "has never been disputed by any respectable authority." Barcelon v. Baker, supra.) The political
department, according to Chief Justice Taney in Martin v. Mott (12 Wheat 29-31), is the sole judge of the existence
of war or insurrection, and when it declares either of these emergencies to exist, its action is not subject to review or
liable to be controlled by the judicial department of the State. (Citing Franklin v. State Board of Examiners, 23 Cal.
172, 178.)
The danger, and difficulties which would grow out of the adoption of a contrary rule are clearly and ably pointed out
in the Barcelon case, thus:
If the investigation and findings of the President, or the Governor-General with the approval of the
Philippine Commission, are not conclusive and final as against the judicial department of the
Government, then every officer whose duty it is to maintain order and protect the lives and property
of the people may refuse to act, and apply to the judicial department of the Government for another
investigation and conclusion concerning the same conditions, to the end that they may be protected
against civil actions resulting from illegal acts.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-36142 March 31, 1973
JOSUE JAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE
AND THE SECRETARY OF FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U. MIRANDA,
EMILIO DE PERALTA AND LORENZO M. TAADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF JUSTICE, THE
SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL,
THE BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL COMMISSION ON REORGANIZATION,
THE TREASURER OF THE PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE COMMISSIONER OF
CIVIL SERVICE, respondents.
G.R. No. L-36165 March 31, 1973.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL, RAMON V.
MITRA, JR. and EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his capacity as
Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief of Staff of the Armed
Forces of the Philippines; TANCIO E. CASTAEDA, in his capacity as Secretary General Services; Senator
GIL J. PUYAT, in his capacity as President of the Senate; and Senator JOSE ROY, his capacity, as President
Pro Tempore of the of the Senate, respondents.
G.R. No. L-36236 March 31, 1973
EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press Club of the
Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR GENERAL,
THE BUDGET COMMISSIONER & THE NATIONAL TREASURER, respondents.
G.R. No. L-36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL M.
GONZALEZ,petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL DEFENSE,
THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Taada and Associates for petitioners Vidal Tan, et al.
Taada, Salonga, Ordoez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for
other respondents.
R E S O L U T I O N
CONCEPCION, C.J .:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and
L-35979, decided on January 22, 1973, to which We will hereafter refer collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered, from which We quote:
On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by
Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose
amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was
implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of
which the election of delegates to said Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was
in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed
Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of
the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or
rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional
Convention, and appropriating funds therefor," as well as setting the plebiscite for said ratification or
rejection of the Proposed Constitution on January 15, 1973.
Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R. No. L-35925,
against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to
enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any
manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree
"has no force and effect as law because the calling ... of such plebiscite, the setting of guidelines for
the conduct of the same, the prescription of the ballots to be used and the question to be answered
by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged
exclusively in Congress ...," and "there is no proper submission to the people of said Proposed
Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and
there being no sufficient time to inform the people of the contents thereof."
Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the
Commission on Elections (Case G.R. No. L- 35929) on December 11, 1972, by Gerardo Roxas, et
al., against the Commission on Elections, the Director of Printing, the National Treasurer and the
Auditor General (Case G.R. L-35940), by Eddie B. Monteclaro against the Commission on Elections
and the Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoez, et al.
against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the
Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948) and by Jose
W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. L-35953);
on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor
General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No.
L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor General (Case G.R. No. L-35965); and on
December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of
Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979).
In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their
answers "not later than 12:00 (oclock) noon of Saturday, December 16, 1972." Said cases were,
also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was
continued on December 19, 1972. By agreement of the parties, the aforementioned last case
G.R. No. L-35979 was, also, heard, jointly with the others, on December 19, 1972. At the
conclusion of the hearing, on that date, the parties in all of the aforementioned cases were given a
short period of time within which "to submit their notes on the points they desire to stress." Said
notes were filed on different dates, between December 21, 1972, and January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed
Constitution. On December 23, the President announced the postponement of the plebiscite for the
ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until
January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to
be held on January 15, 1978, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed
Constitution."
In view of these events relative to the postponement of the aforementioned plebiscite, the Court
deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were known or announced
officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in
regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a plebiscite and appropriate
funds therefor, which Congress unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President reportedly after consultation with, among others,
the leaders of Congress and the Commission on Elections the Court deemed it more imperative
to defer its final action on these cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that said case be decided "as soon as possible, preferably
not later than January 15, 1973." It was alleged in said motion, inter alia:
"6. That the President subsequently announced the issuance of Presidential Decree No. 86
organizing the so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin
Today, January 1, 1973];
"7. That thereafter it was later announced that "the Assemblies will be asked if they favor or oppose

[1] The New Society;

[2] Reforms instituted under Martial Law;
[3] The holding of a plebiscite on the proposed new Constitution and when (the
tentative new dates given following the postponement of the plebiscite from the
original date of January 15 are February 19 and March 5);
[4] The opening of the regular session slated on January 22 in accordance with the
existing Constitution despite Martial Law." [Bulletin Today, January 3, 1973.]
"8. That it was later reported that the following are to be the forms of the questions to be asked to the
Citizens Assemblies:
[1] Do you approve of the New Society?
[2] Do you approve of the reform measures under martial law?
[3] Do you think that Congress should meet again in regular session?
[4] How soon would you like the plebiscite on the new Constitution to be held?
[Bulletin Today, January 5, 1973].
"9. That the voting by the so-called Citizens Assemblies was announced to take place during the
period from January 10 to January 15, 1973;
"10. That on January 10, 1973, it was reported that on more question would be added to the four (4)
question previously announced, and that the forms of the question would be as follows:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional question.]
"11. That on January 11, 1973, it was reported that six (6) more questions would be submitted to the
so-called Citizens Assemblies:
[1] Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interests?
[2] Do you approve of the new Constitution?
[3] Do you want a plebiscite to be called to ratify the new Constitution?
[4] Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?
[5] If the elections would not be held, when do you want the next elections to be
called?
[6] Do you want martial law to continue? [Bulletin Today, January 11, 1973;
emphasis supplied]
"12. That according to reports, the returns with respect to the six (6) additional questions quoted
above will be on a form similar or identical to Annex "A" hereof;
"13. That attached to page 1 of Annex "A" is another page, which we marked as Annex "A-1", and
which reads:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it is to be
convened at all, it should not be done so until after at least seven (7) years from the
approval of the New Constitution by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered the plebiscite on
the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the new
Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with politics, of so
many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections will be enough
for stability to be established in the country, for reforms to take root and normalcy to
return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him to exercise his
powers with more authority. We want him to be strong and firm so that he can
accomplish all his reform programs and establish normalcy in the country. If all other
measures fail, we want President Marcos to declare a revolutionary government
along the lines of the new Constitution without the ad interim Assembly."
"Attention is respectfully invited to the comments on "Question No. 3," which reads:
QUESTION No. 3
The vote of the Citizens Assemblies should be considered the plebiscite on the New
Constitution.
If the Citizens Assemblies approve of the New Constitution, then the new
Constitution should be deemed ratified.
This, we are afraid, and therefore allege, is pregnant with ominous possibilities.
14. That, in the meantime, speaking on television and over the radio, on January 7, 1973, the
President announced that the limited freedom of debate on the proposed Constitution was being
withdrawn and that the proclamation of martial law and the orders and decrees issued thereunder
would thenceforth strictly be enforced [Daily Express, January 8, 1973];
15. That petitioners have reason to fear, and therefore state, that the question added in the last list
of questions to be asked to the Citizens Assemblies, namely:
Do you approve of the New
Constitution?
in relation to the question following it:
Do you still want a plebiscite to be called to ratify the
new Constitution?"
would be an attempt to by-pass and short-circuit this Honorable Court before which the question of
the validity of the plebiscite on the proposed Constitution is now pending;
"16. That petitioners have reason to fear, and therefore allege, that if an affirmative answer to the
two questions just referred to will be reported then this Honorable Court and the entire nation will be
confronted with a fait accompli which has been attained in a highly unconstitutional and
undemocratic manner;
"17. That the fait accompli would consist in the supposed expression of the people approving the
proposed Constitution;
"18. That, if such event would happen, then the case before this Honorable Court could, to all intents
and purposes, become moot because, petitioners fear, and they therefore allege, that on the basis of
such supposed expression of the will of the people through the Citizens Assemblies, it would be
announced that the proposed Constitution, with all its defects, both congenital and otherwise, has
been ratified;
"19. That, in such a situation the Philippines will be facing a real crisis and there is likelihood of
confusion if not chaos, because then, the people and their officials will not know which Constitution
is in force.
"20. That the crisis mentioned above can only be avoided if this Honorable Court will immediately
decide and announce its decision on the present petition;
"21. That with the withdrawal by the President of the limited freedom of discussion on the proposed
Constitution which was given to the people pursuant to Sec. 3 of Presidential Decree No. 73, the
opposition of respondents to petitioners prayer at the plebiscite be prohibited has now collapsed and
that a free plebiscite can no longer be held."
At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L-
35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and L-35942, "Sedfrey A.
Ordoez, et al. v. The National Treasurer, et al."
The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the
respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "not
later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before
noon, the petitioners in said Case G.R. No. L-35948 riled a "supplemental motion for issuance of
restraining order and inclusion of additional respondents," praying
"... that a restraining order be issued enjoining and restraining respondent
Commission on Elections, as well as the Department of Local Governments and its
head, Secretary Jose Roo; the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; their deputies, subordinates and substitutes, and all
other officials and persons who may be assigned such task, from collecting,
certifying, and announcing and reporting to the President or other officials concerned,
the so-called Citizens Assemblies referendum results allegedly obtained when they
were supposed to have met during the period comprised between January 10 and
January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental
Urgent Motion."
In support of this prayer, it was alleged
"3. That petitioners are now before this Honorable Court in order to ask further that this Honorable
Court issue a restraining order enjoining herein respondents, particularly respondent Commission on
Elections as well as the Department of Local Governments and its head, Secretary Jose Roo; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies, subordinates
and/or substitutes, from collecting, certifying, announcing and reporting to the President the
supposed Citizens Assemblies referendum results allegedly obtained when they were supposed to
have met during the period between January 10 and January 15, 1973, particularly on the two
questions quoted in paragraph 1 of this Supplemental Urgent Motion;
"4. That the proceedings of the so-called Citizens Assemblies are illegal, null and void particularly
insofar as such proceedings are being made the basis of a supposed consensus for the ratification
of the proposed Constitution because:
[a] The elections contemplated in the Constitution, Article XV, at which the proposed
constitutional amendments are to be submitted for ratification, are elections at which
only qualified and duly registered voters are permitted to vote, whereas, the so called
Citizens Assemblies were participated in by persons 15 years of age and older,
regardless of qualifications or lack thereof, as prescribed in the Election Code;
[b] Elections or plebiscites for the ratification of constitutional amendments
contemplated in Article XV of the Constitution have provisions for the secrecy of
choice and of vote, which is one of the safeguards of freedom of action, but votes in
the Citizens Assemblies were open and were cast by raising hands;
[c] The Election Code makes ample provisions for free, orderly and honest elections,
and such provisions are a minimum requirement for elections or plebiscites for the
ratification of constitutional amendments, but there were no similar provisions to
guide and regulate proceedings of the so called Citizens Assemblies;
[d] It is seriously to be doubted that, for lack of material time, more than a handful of
the so called Citizens Assemblies have been actually formed, because the
mechanics of their organization were still being discussed a day or so before the day
they were supposed to begin functioning:
"Provincial governors and city and municipal mayors had been
meeting with barrio captains and community leaders since last
Monday [January 8, 1973) to thresh out the mechanics in the
formation of the Citizens Assemblies and the topics for discussion."
[Bulletin Today, January 10, 1973]
"It should be recalled that the Citizens Assemblies were ordered formed only at the beginning of the
year [Daily Express, January 1, 1973], and considering the lack of experience of the local organizers
of said assemblies, as well as the absence of sufficient guidelines for organization, it is too much to
believe that such assemblies could be organized at such a short notice.
"5. That for lack of material time, the appropriate amended petition to include the additional officials
and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could not
be completed because, as noted in the Urgent Motion of January 12, 1973, the submission of the
proposed Constitution to the Citizens Assemblies was not made known to the public until January
11, 1973. But be that as it may, the said additional officials and agencies may be properly included in
the petition at bar because:
[a] The herein petitioners have prayed in their petition for the annulment not only of
Presidential Decree No. 73, but also of "any similar decree, proclamation, order or
instruction.
so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed Constitution
to a plebiscite by the so-called Citizens Assemblies, is properly in issue in this case, and those who
enforce, implement, or carry out the said Presidential Decree No. 86. and the instructions incidental
thereto clearly fall within the scope of this petition;
[b] In their petition, petitioners sought the issuance of a writ of preliminary injunction
restraining not only the respondents named in the petition but also their "agents"
from implementing not only Presidential Decree No. 73, but also "any other similar
decree, order, instruction, or proclamation in relation to the holding of a plebiscite on
January 15, 1973 for the purpose of submitting to the Filipino people for their
ratification or rejection the 1972 Draft or proposed Constitution approved by the
Constitutional Convention on November 30, 1972"; and finally,
[c] Petitioners prayed for such other relief which may be just and equitable. [p. 39,
Petition].
"Therefore, viewing the case from all angles, the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached by the processes of this
Honorable Court by reason of this petition, considering, furthermore, that the Commission on
Elections has under our laws the power, among others, of:
(a) Direct and immediate supervision and control over national, provincial, city,
municipal and municipal district officials required by law to perform duties relative to
the conduct of elections on matters pertaining to the enforcement of the provisions of
this Code ..." [Election Code of 1971, Sec. 3].
"6. That unless the petition at bar is decided immediately and the Commission on Elections, together
with the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent
Motion are restrained or enjoined from collecting, certifying, reporting or announcing to the President
the results of the alleged voting of the so-called Citizens Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the cause of freedom an democracy,
and the petitioners herein because:
[a] After the result of the supposed voting on the questions mentioned in paragraph 1
hereof shall have been announced, a conflict will arise between those who maintain
that the 1935 Constitution is still in force, on the one hand, and those who will
maintain that it has been superseded by the proposed Constitution, on the other,
thereby creating confusion, if not chaos;
[b] Even the jurisdiction of this Court will be subject to serious attack because the
advocates of the theory that the proposed Constitution has been ratified by reason of
the announcement of the results of the proceedings of the so-called Citizens
Assemblies will argue that, General Order No. 3, which shall also be deemed ratified
pursuant to the Transitory Provisions of the proposed Constitution, has placed
Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction of this
Honorable Court."
On the same date January 15, 1973 the Court passed a resolution requiring the respondents in
said case G.R. No. L-35948 to file "file an answer to the said motion not later than 4 P.M., Tuesday,
January 16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the
case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on
the writer of this opinion and said that, upon instructions of the President, he (the Secretary of
Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been
signed by the President. Thereupon, the writer returned to the Session Hall and announced to the
Court, the parties in G.R. No. L-35948 inasmuch as the hearing in connection therewith was still
going on and the public there present that the President had, according to information conveyed
by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the
writer read Proclamation No. 1102 which is of the following tenor:
"BY THE PRESIDENT OF THE PHILIPPINES
"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION
PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional
Convention is subject to ratification by the Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in
chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or ward for at least six months, fifteen years of age
or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members
kept by the barrio, district or ward secretary;
"WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunity for the citizenry to express
their views on important national issues;
"WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A,
dated January 5, 1973, the following questions were posed before the Citizens Assemblies or
Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to
ratify the new Constitution?
"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561)
members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who
voted for its rejection; while on the question as to whether or not the people would still like a
plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight
thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite;
"WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan
ng Mga Barangay has strongly recommended that the new Constitution should already be deemed
ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution
proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been
ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.
"Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and
seventy-three.
(Sgd.) FERDINAND E.
MARCOS
"President of the
Philippines
"By the President:
"ALEJANDRO MELCHOR
"Executive Secretary"
Such is the background of the cases submitted determination. After admitting some of the
allegations made in the petition in L-35948 and denying the other allegations thereof, respondents
therein alleged in their answer thereto, by way affirmative defenses: 1) that the "questions raised" in
said petition "are political in character"; 2) that "the Constitutional Convention acted freely and had
plenary authority to propose not only amendments but a Constitution which would supersede the
present Constitution"; 3) that "the Presidents call for a plebiscite and the appropriation of funds for
this purpose are valid"; 4) that "there is not an improper submission" and "there can be a plebiscite
under Martial Law"; and 5) that the "argument that the Proposed Constitution is vague and
incomplete, makes an unconstitutional delegation of power, includes a referendum on the
proclamation of Martial Law and purports to exercise judicial power" is "not relevant and ... without
merit." Identical defenses were set up in the other cases under consideration.
Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the
Members of the Court have been deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each Member write his own views
thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the
points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions
attached hereto, except that, instead of writing their separate opinions, some Members have
preferred to merely concur in the opinion of one of our colleagues.
Then the writer of said decision expressed his own opinion on the issues involved therein, after which he
recapitulated the views of the Members of the Court, as follows:
1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No.
73.
2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra
and myself, or six (6) Members of the Court, are of the opinion that the issue has become moot and
academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of said
Decree.
3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to
incorporate therein the provisions contested by the petitioners in L-35948, Justices Makalintal,
Castro, Teehankee and Esguerra opine that the issue has become moot and academic. Justices
Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the
Convention.
4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had
authority to continue in the performance of its functions despite the proclamation of Martial Law. In
effect, Justices Barredo, Makasiar and Antonio hold the same view.
5. On the question whether the proclamation of Martial Law affected the proper submission of the
proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice
Fernando is of the opinion that there is a repugnancy between the election contemplated under Art.
XV of the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the
petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are of the
opinion that issue involves questions of fact which cannot be predetermined, and that Martial
Law per se does not necessarily preclude the factual possibility of adequate freedom, for the
purposes contemplated.
6. On Presidential Proclamation No. 1102, the following views were expressed:
a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and
myself are of the opinion that the question of validity of said Proclamation has not
been properly raised before the Court, which, accordingly, should not pass upon
such question.
b. Justice Barredo holds that the issue on the constitutionality of Proclamation No.
1102 has been submitted to and should be determined by the Court, and that the
"purported ratification of the Proposed Constitution ... based on the referendum
among Citizens Assemblies falls short of being in strict conformity with the
requirements of Article XV of the 1935 Constitution," but that such unfortunate
drawback notwithstanding, "considering all other related relevant circumstances, ...
the new Constitution is legally recognizable and should be recognized as legitimately
in force."
c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not
been ratified in accordance with Article XV of the 1935 Constitution, and that,
accordingly, it has no force and effect whatsoever.
d. Justice Antonio feels "that the Court is not competent to act" on the issue whether
the Proposed Constitution has been ratified by the people or not, "in the absence of
any judicially discoverable and manageable standards," since the issue "poses a
question of fact.
7. On the question whether or not these cases should be dismissed, Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their
respective opinions. Justices Fernando, Teehankee, and the writer similarly voted, except as
regards Case No. L-35948 as to which they voted to grant to the petitioners therein a reasonable
period of time within which to file appropriate pleadings should they wish to contest the legality of
Presidential Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the
petitioners in said Case No. L-35948 for the aforementioned purpose, but he believes, in effect, that
the Court should go farther and decide on the merits everyone of the cases under consideration.
Accordingly, the Court acting in conformity with the position taken by six (6) of its members,
1
with three (3)
members dissenting,
2
with respect to G.R. No. L-35948, only and another member
3
dissenting, as regards all of the
cases dismissed the same, without special pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary
and the Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their subordinates
or agents from implementing any of the provisions of the propose Constitution not found in the present Constitution"
referring to that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and
registered voter" and as "a class suit, for himself, and in behalf of all citizens and voters similarly situated," was
amended on or about January 24, 1973. After reciting in substance the facts set forth in the decision in the plebiscite
cases, Javellana alleged that the President had announced "the immediate implementation of the New Constitution,
thru his Cabinet, respondents including," and that the latter "are acting without, or in excess of jurisdiction in
implementing the said proposed Constitution" upon the ground: "that the President, as Commander-in-Chief of the
Armed Forces of the Philippines, is without authority to create the Citizens Assemblies"; that the same "are without
power to approve the proposed Constitution ..."; "that the President is without power to proclaim the ratification by
the Filipino people of the proposed Constitution"; and "that the election held to ratify the proposed Constitution was
not a free election, hence null and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo,
Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Taada, against the Executive Secretary, the Secretaries of
Finance, Justice, Land Reform, and National Defense, the Auditor General, the Budget Commissioner, the
Chairman of the Presidential Commission on Reorganization, the Treasurer of the Philippines, the Commission on
Elections and the Commissioner of Civil Service
4
on February 3, 1973, by Eddie Monteclaro, personally and as
President of the National Press Club of the Philippines, against the Executive Secretary, the Secretary of Public
Information, the Auditor General, the Budget Commissioner and the National Treasurer
5
and on February 12, 1973, by
Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales,
6
against the Executive
Secretary, the Secretary of National Defense, the Budget Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H. Laurel,
7
Ramon V.
Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor Leader of the Senate," and others
as "duly elected members" thereof, filed Case G.R. No. L-36165, against the Executive Secretary, the Secretary National
Defense, the Chief of Staff of the Armed Forces of the Philippines, the Secretary of General Services, the President and
the President Pro Tempore of the Senate. In their petition as amended on January 26, 1973 petitioners Gerardo
Roxas, et al. allege, inter alia, that the term of office of three of the aforementioned petitioners
8
would expire on
December 31, 1975, and that of the others
9
on December 31, 1977; that pursuant to our 1935 Constitution, "which is still
in force Congress of the Philippines "must convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which
is regular customary hour of its opening session"; that "on said day, from 10:00 A.M. up to the afternoon," said petitioner
"along with their other colleagues, were unlawfully prevented from using the Senate Session Hall, the same having been
closed by the authorities in physical possession and control the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the
said day, the premises of the entire Legislative Building were ordered cleared by the same authorities, and no one was
allowed to enter and have access to said premises"; that "(r)espondent Senate President Gil J. Puyat and, in his absence,
respondent President Pro Tempore Jose Roy we asked by petitioning Senators to perform their duties under the law and
the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so"; that the petitioners ready and
willing to perform their duties as duly elected members of the Senate of the Philippines," but respondent Secretary of
National Defense, Executive Secretary and Chief of Staff, "through their agents and representatives, are preventing
petitioners from performing their duties as duly elected Senators of the Philippines"; that "the Senate premise in the
Congress of the Philippines Building ... are occupied by and are under the physical control of the elements military
organizations under the direction of said respondents"; that, as per "official reports, the Department of General Services ...
is now the civilian agency in custody of the premises of the Legislative Building"; that respondents "have unlawfully
excluded and prevented, and continue to so exclude and prevent" the petitioners "from the performance of their sworn
duties, invoking the alleged approval of the 1972 (1973) Constitution of the Philippines by action of the so-called Citizens
Assemblies on January 10, 1973 to January 15, 1973, as stated in and by virtue of Proclamation No. 1102 signed and
issued by the President of the Philippines"; that "the alleged creation of the Citizens Assemblies as instrumentalities for
the ratification of the Constitution of the Republic of the Philippines" is inherently illegal and palpably unconstitutional; that
respondents Senate President and Senate President Pro Tempore "have unlawfully refrained and continue to refrain from
and/or unlawfully neglected and continue to neglect the performance of their duties and functions as such officers under
the law and the Rules of the Senate" quoted in the petition; that because of events supervening the institution of the
plebiscite cases, to which reference has been made in the preceding pages, the Supreme Court dismissed said cases on
January 22, 1973, by a majority vote, upon the ground that the petitions therein had become moot and academic; that the
alleged ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void and ... can not have superseded
and revoked the 1935 Constitution," for the reasons specified in the petition as amended; that, by acting as they did, the
respondents and their "agents, representatives and subordinates ...have excluded the petitioners from an office to which"
they "are lawfully entitled"; that "respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the
Senate for its 8th session, assuming general jurisdiction over the Session Hall and the premises of the Senate and ...
continue such inaction up to this time and ... a writ of mandamus is warranted in order to compel them to comply with the
duties and functions specifically enjoined by law"; and that "against the above mentioned unlawful acts of the
respondents, the petitioners have no appeal nor other speedy and adequate remedy in the ordinary course of law except
by invoking the equitable remedies of mandamus and prohibition with the provisional remedy of preliminary mandatory
injunction."
Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the merits, a writ of
preliminary mandatory injunction be issued ordering respondents Executive Secretary, the Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines, and the ... Secretary of General Service, as well
as all their agents, representatives and subordinates to vacate the premises of the Senate of the Philippines and to
deliver physical possession of the same to the President of the Senate or his authorized representative"; and that
hearing, judgment be rendered declaring null and Proclamation No. 1102 ... and any order, decree, proclamation
having the same import and objective, issuing writs of prohibition and mandamus, as prayed for against above-
mentioned respondents, and making the writ injunction permanent; and that a writ of mandamus be issued against
the respondents Gil J. Puyat and Jose Roy directing them to comply with their duties and functions as President and
President Pro Tempore, respectively, of the Senate of Philippines, as provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or amended petitions, respondents filed, with the leave
Court first had and obtained, a consolidated comment on said petitions and/or amended petitions, alleging that the
same ought to have been dismissed outright; controverting petitioners allegations concerning the alleged lack
impairment of the freedom of the 1971 Constitution Convention to approve the proposed Constitution, its alleged
lack of authority to incorporate certain contested provisions thereof, the alleged lack of authority of the President to
create and establish Citizens Assemblies "for the purpose submitting to them the matter of ratification of the new
Constitution," the alleged "improper or inadequate submiss of the proposed constitution," the "procedure for
ratification adopted ... through the Citizens Assemblies"; a maintaining that: 1) "(t)he Court is without jurisdiction to
act on these petitions"; 2) the questions raised therein are "political in character and therefore nonjusticiable"; 3)
"there substantial compliance with Article XV of the 1 Constitution"; 4) "(t)he Constitution was properly submitted the
people in a free, orderly and honest election; 5) "Proclamation No. 1102, certifying the results of the election, is
conclusive upon the courts"; and 6) "(t)he amending process outlined in Article XV of the 1935 Constitution is not
exclusive of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein, alleging that
"(t)he subject matter" of said case "is a highly political question which, under the circumstances, this ...Court would
not be in a position to act upon judicially," and that, in view of the opinions expressed by three members of this
Court in its decision in the plebiscite cases, in effect upholding the validity of Proclamation No. 1102, "further
proceedings in this case may only be an academic exercise in futility."
On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on the petition
therein not later than Saturday, February 10, 1973, and setting the case for hearing on February 12, 1973, at 9:30
a.m. By resolution dated February 7, 1973, this Court resolved to consider the comments of the respondents in
cases G.R. Nos. L-36142, L-36164, and L-36165, as motions to dismiss the petitions therein, and to set said cases
for hearing on the same date and time as L-36236. On that date, the parties in G.R. No. L-36283
10
agreed that the
same be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164, L-
36165 and L-36236. The hearing, which began on February 12, 1973, shortly after 9:30 a.m., was continued not only that
afternoon, but, also, on February 13, 14, 15 and 16, morning and afternoon, after which the parties were granted up to
February 24, 1973, noon, within which to submit their notes of oral arguments and additional arguments, as well as the
documents required of them or whose presentation was reserved by them. The same resolution granted the parties until
March 1, 1973, to reply to the notes filed by their respective opponents. Counsel for the petitioners in G.R. Nos. L-36164
and L-36165 filed their aforementioned notes on February 24, 1973, on which date the Solicitor General sought an
extension of time up to March 3, 1973, within which to file his notes, which was granted, with the understanding that said
notes shall include his reply to the notes already filed by the petitioners in G.R. Nos. L-36164 a L-36165. Counsel for the
petitioners, likewise, moved and were granted an extension of time, to expire on March 10, 1973, within which to file, as
they did, their notes in reply to those submitted by the Solicitor General on March 3, 1973. On March 21, 1973, petitioners
in L-36165 filed a "Manifestation a Supplemental Rejoinder," whereas the Office of the Solicitor General submitted in all
these cases a "Rejoinder Petitioners Replies."
After deliberating on these cases, the members of the Court agreed that each would write his own opinion and serve
a copy thereof on his colleagues, and this they did. Subsequently, the Court discussed said opinions and votes were
cast thereon. Such individual opinions are appended hereto.
Accordingly, the writer will first express his person opinion on the issues before the Court. After the exposition his
aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a resume of summary of the
votes cast by them in these cases.
Writers Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L-36165, and, also,
by the Solicitor General, is predicated upon the fact that, in Our decision in the plebiscite cases, Mr. Justice Barredo
had expressed the view that the 1935 Constitution had "pro tanto passed into history" and "been legitimately
supplanted by the Constitution now in force by virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did not
feel "that this Court competent to act" in said cases "in the absence of any judicially discoverable and manageable
standards" and because "the access to relevant information is insufficient to assure the correct determination of the
issue," apart from the circumstance that "the new constitution has been promulgated and great interests have
already arisen under it" and that the political organ of the Government has recognized its provisions; whereas, Mr.
Justice Esguerra had postulated that "(w)ithout any competent evidence ... about the circumstances attending the
holding" of the "referendum or plebiscite" thru the Citizens Assemblies, he "cannot say that it was not lawfully held"
and that, accordingly, he assumed "that what the proclamation (No. 1102) says on its face is true and until
overcome by satisfactory evidence" he could not "subscribe to the claim that such plebiscite was not held
accordingly"; and that he accepted "as a fait accompli that the Constitution adopted (by the 1971 Constitutional
Convention) on November 30, 1972, has been duly ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "it seems
remote or improbable that the necessary eight (8) votes under the 1935 Constitution, and much less the ten (10)
votes required by the 1972 (1973) Constitution, can be obtained for the relief sought in the Amended Petition" in
G.R. No.
L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court, during the
hearing of these cases, that he was and is willing to be convinced that his aforementioned opinion in the plebiscite
cases should be reconsidered and changed. In effect, he thus declared that he had an open mind in connection with
the cases at bar, and that in deciding the same he would not necessarily adhere to said opinion if the petitioners
herein succeeded in convincing him that their view should be sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935 Constitution, eight
(8) votes are necessary to declare invalid the contested Proclamation No. 1102. I do not believe that this
assumption is borne out by any provision of said Constitution. Section 10 of Article VIII thereof reads:
All cases involving the constitutionality of a treaty or law shall be heard and decided by the Supreme
Court in banc, and no treaty or law may be declared unconstitutional without the concurrence of two
thirds of all the members of the Court.
Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme Court is required only to
declare "treaty or law" unconstitutional. Construing said provision, in a resolution dated September 16, 1949, then
Chief Justice Moran, voicing the unanimous view of the Members of this Court, postulated:
... There is nothing either in the Constitution or in the Judiciary Act requiring the vote of eight
Justices to nullify a rule or regulation or an executive order issued by the President. It is very
significant that in the previous drafts of section 10, Article VIII of the Constitution, "executive order"
and "regulation"were included among those that required for their nullification the vote of two-thirds
of all the members of the Court. But "executive order" and "regulation" were later deleted from the
final draft (Aruego, The Framing of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere
majority of six members of this Court is enough to nullify them.
11
The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes) requirement, indeed, was
made to apply only to treaty and law, because, in these cases, the participation of the two other departments of the
government the Executive and the Legislative is present, which circumstance is absent in the case of rules,
regulations and executive orders. Indeed, a law (statute) passed by Congress is subject to the approval or veto of
the President, whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of each
House of Congress.
12
A treaty is entered into by the President with the concurrence of the Senate,
13
which is not
required in the case of rules, regulations or executive orders which are exclusive acts of the President. Hence, to nullify
the same, a lesser number of votes is necessary in the Supreme Court than that required to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive orders issued by the President, the dictum applies
with equal force to executive proclamation, like said Proclamation No. 1102, inasmuch as the authority to issue the
same is governed by section 63 of the Revised Administrative Code, which provides:
Administrative acts and commands of the (Governor-General) President of the Philippines touching
the organization or mode of operation of the Government or rearranging or readjusting any of the
districts, divisions, parts or ports of the (Philippine Islands) Philippines and all acts and commands
governing the general performance of duties by public employees or disposing of issues of general
concern shall be made effective in executive orders.
Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cease to
(have) effect and any information concerning matters of public moment determined by law,
resolution, or executive orders, may be promulgated in an executive proclamation, with all the force
of an executive order.
14
In fact, while executive order embody administrative acts or commands of the President, executive proclamations
are mainly informative and declaratory in character, and so does counsel for respondents Gil J. Puyat and Jose Roy
maintain in G.R. No.
L-36165.
15
As consequence, an executive proclamation has no more than "the force of an executive order," so that, for
the Supreme Court to declare such proclamation unconstitutional, under the 1935 Constitution, the same number of votes
needed to invalidate an executive order, rule or regulation namely, six (6) votes would suffice.
As regards the applicability of the provisions of the proposed new Constitution, approved by the 1971 Constitutional
Convention, in the determination of the question whether or not it is now in force, it is obvious that such question
depends upon whether or not the said new Constitution has been ratified in accordance with the requirements of the
1935 Constitution, upon the authority of which said Constitutional Convention was called and approved the
proposed Constitution. It is well settled that the matter of ratification of an amendment to the Constitution should be
settled by applying the provisions of the Constitution in force at the time of the alleged ratification, or the old
Constitution.
16
II
Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and, hence, non-
justiciable question?
The Solicitor General maintains in his comment the affirmative view and this is his main defense. In support thereof,
he alleges that "petitioners would have this Court declare as invalid the New Constitution of the Republic" from
which he claims "this Court now derives its authority"; that "nearly 15 million of our body politic from the age of
15 years have mandated this Constitution to be the New Constitution and the prospect of unsettling acts done in
reliance on it caution against interposition of the power of judicial review"; that "in the case of the New Constitution,
the government has been recognized in accordance with the New Constitution"; that "the countrys foreign relations
are now being conducted in accordance with the new charter"; that "foreign governments have taken note of it"; that
the "plebiscite cases" are "not precedents for holding questions regarding proposal and ratification justiciable"; and
that "to abstain from judgment on the ultimate issue of constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution invalid. What
petitioners dispute is the theory that it has been validly ratified by the people, especially that they have done so in
accordance with Article XV of the 1935 Constitution. The petitioners maintain that the conclusion reached by the
Chief Executive in the dispositive portion of Proclamation No. 1102 is not borne out by the whereases preceding the
same, as the predicates from which said conclusion was drawn; that the plebiscite or "election" required in said
Article XV has not been held; that the Chief Executive has no authority, under the 1935 Constitution, to dispensewith
said election or plebiscite; that the proceedings before the Citizens Assemblies did not constitute and may not be
considered as such plebiscite; that the facts of record abundantly show that the aforementioned Assemblies could
not have been held throughout the Philippines from January 10 to January 15, 1973; and that, in any event, the
proceedings in said Assemblies are null and void as an alleged ratification of the new Constitution proposed by the
1971 Constitutional Convention, not only because of the circumstances under which said Assemblies had been
created and held, but, also, because persons disqualified to vote under Article V of the Constitution were allowed to
participate therein, because the provisions of our Election Code were not observed in said Assemblies, because the
same were not held under the supervision of the Commission on Elections, in violation of section 2 of Article X of the
1935 Constitution, and because the existence of Martial Law and General Order No. 20, withdrawing or suspending
the limited freedom to discuss the merits and demerits of said proposed Constitution, impaired the peoples freedom
in voting thereon, particularly a viva voce, as it was done in many instances, as well as their ability to have a
reasonable knowledge of the contents of the document on which they were allegedly called upon to express their
views.
Referring now more specifically to the issue on whether the new Constitution proposed by the 1971 Constitutional
Convention has been ratified in accordance with the provisions of Article XV of the 1935 Constitution is a political
question or not, I do not hesitate to state that the answer must be in the negative. Indeed, such is the position taken
by this Court, 17 in an endless line of decisions, too long to leave any room for possible doubt that said issue is
inherently and essentially justiciable. Such, also, has been the consistent position of the courts of the United States
of America, whose decisions have a persuasive effect in this jurisdiction, our constitutional system in the 1935
Constitution being patterned after that of the United States. Besides, no plausible reason has, to my mind, been
advanced to warrant a departure from said position, consistently with the form of government established under said
Constitution..
Thus, in the aforementioned plebiscite cases,
18
We rejected the theory of the respondents therein that the question
whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of
the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it
partook of a political nature, and We unanimously declared that the issue was a justiciable one. With identical unanimity,
We overruled the respondents contention in the 1971 habeas corpus cases,
19
questioning Our authority to determine the
constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privilege of the writ
of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelona v.
Baker
20
and Montenegro v. Castaeda,
21
insofar as it adhered to the former case, which view We, accordingly,
abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales v.
Commission on Elections,
22
the political-question theory adopted in Mabanag v. Lopez Vito.
23
Hence, respondents herein
urge Us to reconsider the action thus taken by the Court and to revert to and follow the views expressed in Barcelon v.
Baker and Mabanag v. Lopez Vito.
24
The reasons adduced in support thereof are, however, substantially the same as those given in support of the
political-question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by
this Court and found by it to be legally unsound and constitutionally untenable. As a consequence, Our decision in
the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis, which gained added
weight by its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of similar character are justiciable, not political, is
plain and simple. One of the principal bases of the non-justiciability of so-called political questions is the principle of
separation of powers characteristic of the Presidential system of government the functions of which are
classified or divided, by reason of their nature, into three (3) categories, namely: 1) those involving the making of
laws, which are allocated to the legislative department; 2) those concerned mainly with the enforcement of such
laws and of judicial decisions applying and/or interpreting the same, which belong to the executive department; and
3) those dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that
are legally demandable and enforceable, which are apportioned to courts of justice. Within its own sphere
but only within such sphere each department is supreme and independent of the others, and each is devoid of
authority, not only to encroach upon the powers or field of action assigned to any of the other departments, but,
also, to inquire into or pass upon the advisability or wisdom of the acts performed, measures taken or decisions
made by the other departments provided that such acts, measures or decisions are withinthe area allocated
thereto by the Constitution.
25
This principle of separation of powers under the presidential system goes hand in hand with the system of checks
and balances, under which each department is vested by the Fundamental Law with some powers to forestall,
restrain or arrest a possible or actual misuse or abuse of powers by the other departments. Hence, the appointing
power of the Executive, his pardoning power, his veto power, his authority to call the Legislature or Congress to
special sessions and even to prescribe or limit the object or objects of legislation that may be taken up in such
sessions, etc. Conversely, Congress or an agency or arm thereof such as the commission on Appointments
may approve or disapprove some appointments made by the President. It, also, has the power of appropriation, to
"define, prescribe, and apportion the jurisdiction of the various courts," as well as that of impeachment. Upon the
other hand, under the judicial power vested by the Constitution, the "Supreme Court and ... such inferior courts as
may be established by law," may settle or decide with finality, not only justiciable controversies between private
individuals or entities, but, also, disputes or conflicts between a private individual or entity, on the one hand, and an
officer or branch of the government, on the other, or between two (2) officers or branches of service, when the latter
officer or branch is charged with acting without jurisdiction or in excess thereof or in violation of law. And so, when a
power vested in said officer or branch of the government is absolute or unqualified, the acts in the exercise of such
power are said to be political in nature, and, consequently, non-justiciable or beyond judicial review. Otherwise,
courts of justice would be arrogating upon themselves a power conferred by the Constitution upon another branch of
the service to the exclusion of the others. Hence, in Taada v. Cuenco,
26
this Court quoted with approval from In re
McConaughy,
27
the following:
"At the threshold of the case we are met with the assertion that the questions involved are political,
and not judicial. If this is correct, the court has no jurisdiction as the certificate of the state
canvassing board would then be final, regardless of the actual vote upon the amendment. The
question thus raised is a fundamental one; but it has been so often decided contrary to the view
contended for by the Attorney General that it would seem to be finally settled.
xxx xxx xxx
"... What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the government, with
discretionary power to act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re
Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516,
30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus
theLegislature may in its discretion determine whether it will pass law or submit a proposed
constitutional amendment to the people. The courts have no judicial control over such matters, not
merely becausethey involve political questions, but because they are matters which the people have
by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated
him, free from judicial control, so long as he observes the laws act within the limits of the power
conferred. Hisdiscretionary acts cannot be controllable, not primarily because they are of a politics
nature, but because the Constitution and laws have placed the particular matter under his
control. But every officer under constitutional government must act accordingly to law and subject its
restrictions, and every departure therefrom or disregard thereof must subject him to that restraining
and controlling power of the people, acting through the agency of the judiciary; for it must be
remembered that the people act through courts, as well as through the executive or the Legislature.
One department is just as representative as the other, and the judiciary is the department which is
charged with the special duty of determining the limitations which the law places upon all official
action. The recognition of this principle, unknown except in Great Britain and America, is necessary,
to "the end that the government may be one of laws and not of men" words which Webster said
were the greatest contained in any written constitutional document." (Emphasis supplied.)
and, in an attempt to describe the nature of a political question in terms, it was hoped, understandable to the
laymen, We added that "... the term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy" in matters concerning the government of a State, as a body politic. "In other
words, in the language of Corpus Juris Secundum (supra), it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure."
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not
the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-political,
the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said
qualifications, conditions or limitations particularly those prescribed or imposed by the Constitution would be
set at naught. What is more, the judicial inquiry into such issue and the settlement thereof are the mainfunctions of
courts of justice under the Presidential form of government adopted in our 1935 Constitution, and the system of
checks and balances, one of its basic predicates. As a consequence, We have neither the authority nor the
discretion to decline passing upon said issue, but are under the ineluctable obligation made particularly more
exacting and peremptory by our oath, as members of the highest Court of the land, to support and defend the
Constitution to settle it. This explains why, in Miller v. Johnson,
28
it was held that courts have a "duty, rather than a
power", to determine whether another branch of the government has "kept within constitutional limits." Not satisfied with
this postulate, the court went farther and stressed that, if the Constitution provides how it may be amended as it is in
our 1935 Constitution "then, unless the manner is followed, the judiciary as the interpreter of that constitution, will
declare the amendment invalid."
29
In fact, this very Court speaking through Justice Laurel, an outstanding authority on
Philippine Constitutional Law, as well as one of the highly respected and foremost leaders of the Convention that drafted
the 1935 Constitution declared, as early as July 15, 1936, that "(i)n times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict,
the judicialdepartment is the only constitutional organ which can be called upon to determine the proper allocation of
powers between the several departments" of the government.
30
The Solicitor General has invoked Luther v. Borden
31
in support of his stand that the issue under consideration is non-
justiciable in nature. Neither the factual background of that case nor the action taken therein by the Federal Supreme
Court has any similarity with or bearing on the cases under consideration.
Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States against
Borden and others for having forcibly entered into Luthers house, in Rhode Island, sometime in 1842. The
defendants who were in the military service of said former colony of England, alleged in their defense that they had
acted in obedience to the commands of a superior officer, because Luther and others were engaged in a conspiracy
to overthrow the government by force and the state had been placed by competent authority under Martial Law.
Such authority was the charter government of Rhode Island at the time of the Declaration of Independence, for
unlike other states which adopted a new Constitution upon secession from England Rhode Island retained its
form of government under a British Charter, making only such alterations, by acts of the Legislature, as were
necessary to adapt it to its subsequent condition as an independent state. It was under this form of government
when Rhode Island joined other American states in the Declaration of Independence and, by subsequently ratifying
the Constitution of the United States, became a member of the Union. In 1843, it adopted a new Constitution.
Prior thereto, however, many citizens had become dissatisfied with the charter government. Memorials addressed
by them to the Legislature having failed to bring about the desired effect, meetings were held and associations
formed by those who belonged to this segment of the population which eventually resulted in a convention
called for the drafting of a new Constitution to be submitted to the people for their adoption or rejection. The
convention was not authorized by any law of the existing government. The delegates to such convention framed a
new Constitution which was submitted to the people. Upon the return of the votes cast by them, the convention
declared that said Constitution had been adopted and ratified by a majority of the people and became the
paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of citizens of the state, contested, however, the
validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been elected governor under the
new Constitution of the rebels, prepared to assert authority by force of arms, and many citizens assembled to
support him. Thereupon, the charter government passed an Act declaring the state under Martial Law and adopted
measures to repel the threatened attack and subdue the rebels. This was the state of affairs when the defendants,
who were in the military service of the charter government and were to arrest Luther, for engaging in the support of
the rebel government which was never able to exercise any authority in the state broke into his house.
Meanwhile, the charter government had taken measures to call its own convention to revise the existing form of
government. Eventually, a new constitution was drafted by a convention held under the authority of the charter
government, and thereafter was adopted and ratified by the people. "(T)he times and places at which the votes were
to be given, the persons who were to receive and return them, and the qualifications of the voters having all been
previously authorized and provided for by law passed by the charter government," the latter formally surrendered all
of its powers to the new government, established under its authority, in May 1843, which had been in
operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military force, had made an unsuccessful attempt to take
possession of the state arsenal in Providence, but he was repulsed, and, after an "assemblage of some hundreds of
armed men under his command at Chepatchet in the June following, which dispersed upon approach of the troops
of the old government, no further effort was made to establish" his government. "... until the Constitution of 1843"
adopted under the auspices of the charter government "went into operation, the charter government continued to
assert its authority and exercise its powers and to enforce obedience throughout the state ... ."
Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by the majority of
the people, which the Circuit Court rejected, apart from rendering judgment for the defendants, the plaintiff took the
case for review to the Federal Supreme Court which affirmed the action of the Circuit Court, stating:
It is worthy of remark, however, when we are referring to the authority of State decisions, that the
trial of Thomas W. Dorr took place after the constitution of 1843 went into operation. The judges who
decided that case held their authority under that constitution and it is admitted on all hands that it
was adopted by the people of the State, and is the lawful and established government. It is the
decision, therefore, of a State court, whose judicial authority to decide upon the constitution and laws
of Rhode Island is not questioned by either party to this controversy, although the government under
which it acted was framed and adopted under the sanction and laws of the charter government.
The point, then, raised here has been already decided by the courts of Rhode Island. The question
relates, altogether, to the constitution and laws of that State, and the well settled rule in this court is,
that the courts of the United States adopt and follow the decisions of the State courts in questions
which concern merely the constitution and laws of the State.
Upon what ground could the Circuit Court of the United States which tried this case have departed
from this rule, and disregarded and overruled the decisions of the courts of Rhode
Island?Undoubtedly the courts of the United States have certain powers under the Constitution and
laws of the United States which do not belong to the State courts. But the power of determining that
a State government has been lawfully established, which the courts of the State disown and
repudiate, is not one of them. Upon such a question the courts of the United States are bound to
follow the decisions of the State tribunals, and must therefore regard the charter government as the
lawful and established government during the time of this contest.
32
It is thus apparent that the context within which the case of Luther v. Borden was decided is basically and
fundamentally different from that of the cases at bar. To begin with, the case did not involve a federal question, but
one purely municipal in nature. Hence, the Federal Supreme Court was "bound to follow the decisions of the State
tribunals" of Rhode Island upholding the constitution adopted under the authority of the charter government.
Whatever else was said in that case constitutes, therefore, an obiter dictum. Besides, no decision analogous to that
rendered by the State Court of Rhode Island exists in the cases at bar. Secondly, the states of the Union have a
measure of internal sovereignty upon which the Federal Government may not encroach, whereas ours is a unitary
form of government, under which our local governments derive their authority from the national government.
Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island contained noprovision on the
manner, procedure or conditions for its amendment.
Then, too, the case of Luther v. Borden hinged more on the question of recognition of government, than on
recognition of constitution, and there is a fundamental difference between these two (2) types of recognition, the first
being generally conceded to be a political question, whereas the nature of the latter depends upon a number of
factors, one of them being whether the new Constitution has been adopted in the manner prescribed in the
Constitution in force at the time of the purported ratification of the former, which is essentially a justiciablequestion.
There was, in Luther v. Borden, a conflict between two (2) rival governments, antagonistic to each other, which is
absent in the present cases. Here, the Government established under the 1935 Constitution is the very same
government whose Executive Department has urged the adoption of the new or revised Constitution proposed by
the 1971 Constitutional Convention and now alleges that it has been ratified by the people.
In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849, on
mattersother than those referring to its power to review decisions of a state court concerning the constitution and
government of that state, not the Federal Constitution or Government, are manifestly neither, controlling, nor even
persuasive in the present cases, having as the Federal Supreme Court admitted no authority whatsoever to pass
upon such matters or to review decisions of said state court thereon. In fact, referring to that case, the Supreme
Court of Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that the courts have
no power to determine questions of a political character. It is interesting historically, but it has not the
slightest application to the case at bar. When carefully analyzed, it appears that it merely determines
that the federal courts will accept as final and controlling a decision of the highest court of a state
upon a question of the construction of the Constitution of the state. ... .
33
Baker v. Carr,
34
cited by respondents, involved an action to annul a Tennessee statute apportioning the seats in the
General Assembly among the counties of the State, upon the theory that the legislation violated the equal protection
clause. A district court dismissed the case upon the ground, among others, that the issue was a political one, but, after a
painstaking review of the jurisprudence on the matter, the Federal Supreme Court reversed the appealed decision and
held that said issue was justiciable and non-political, inasmuch as:"... (d)eciding whether a matter has in any measure
been committed by the Constitution to another branch of government, or whether the action of that
branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is
a responsibility of this Court as ultimate interpreter of the Constitution ... ."
Similarly, in Powell v. McCormack,
35
the same Court, speaking through then Chief Justice Warren, reversed a decision
of the Court of Appeals of New York affirming that of a Federal District Court, dismissing Powells action for a declaratory
judgment declaring thereunder that he whose qualifications were uncontested had been unlawfully excluded from
the 90th Congress of the U.S. Said dismissal was predicated upon the ground, inter alia, that the issue was political, but
the Federal Supreme Court held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the matter. Owing to
the lucidity of its appraisal thereof, We append the same to this opinion as Annex A thereof.
After an, exhaustive analysis of the cases on this subject, the Court concluded:
The authorities are thus practically uniform in holding that whether a constitutional amendment has
been properly adopted according to the requirements of an existing Constitution is a judicial
question. There can be little doubt that the consensus of judicial opinion is to the effect that it is
the absolute duty of the judiciary to determine whether the Constitution has been amended in the
manner required by the Constitution, unless a special tribunal has been created to determine the
question; and even then many of the courts hold that the tribunal cannot be permitted to illegally
amend the organic law. ... .
36
In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the method or
procedure for its amendment, it is clear to my mind that the question whether or not the revised Constitution drafted
by the 1971 Constitutional Convention has been ratified in accordance with said Art. XV is a justiciable one and non-
political in nature, and that it is not only subject to judicial inquiry, but, also, that it is the Courts boundenduty to
decide such question.
The Supreme Court of the United States has meaningfully postulated that "the courts cannot reject as no law suit "
because it allegedly involves a political question "a bona fide controversy as to whether some action
denominated "political" exceeds constitutional authority."
37
III
Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the President "is without authority to create
the Citizens Assemblies" through which, respondents maintain, the proposed new Constitution has been ratified;
that said Assemblies "are without power to approve the proposed Constitution"; 3) that the President "is without
power to proclaim the ratification by the Filipino people of the proposed Constitution"; and 4) that "the election held
(in the Citizens Assemblies) to ratify the proposed Constitution was not a free election, hence null and void."
Apart from substantially reiterating these grounds support of said negative view, the petitioners in L-36164 contend:
1) that the President "has no power to call a plebiscite for the ratification or rejection" of the proposed new
Constitution or "to appropriate funds for the holding of the said plebiscite"; 2) that the proposed new or revised
Constitution "is vague and incomplete," as well as "contains provisions which are beyond the powers of the 1971
Convention to enact," thereby rendering it "unfit for ... submission the people;" 3) that "(t)he period of time between
November 1972 when the 1972 draft was approved and January 11-15, 1973," when the Citizens Assemblies
supposedly ratified said draft, "was too short, worse still, there was practically no time for the Citizens Assemblies to
discuss the merits of the Constitution which the majority of them have not read a which they never knew would be
submitted to them ratification until they were asked the question "do you approve of the New Constitution?"
during the said days of the voting"; and that "(t)here was altogether no freedom discussion and no opportunity to
concentrate on the matter submitted to them when the 1972 draft was supposedly submitted to the Citizens
Assemblies for ratification."
Petitioner in L-36236 added, as arguments in support of the negative view, that : 1) "(w)ith a government-controlled
press, there can never be a fair and proper submission of the proposed Constitution to the people"; and 2)
Proclamation No. 1102 is null and void "(i)nasmuch as the ratification process" prescribed "in the 1935 Constitution
was not followed."
Besides adopting substantially some of the grounds relied upon by the petitioners in the above-mentioned cases,
the petitioners in L-36283 argue that "(t)he creation of the Citizens Assemblies as the vehicle for the ratification of
the Constitution was a deception upon the people since the President announced the postponement of the January
15, 1973 plebiscite to either February 19 or March 5, 1973."
38
The reasons adduced by the petitioners in L-36165 in favor of the negative view have already been set forth earlier
in this opinion. Hence, it is unnecessary to reproduce them here. So it is, with respect to the positions taken in L-
36165 by counsel for therein respondents Gil J. Puyat and Jose Roy although more will be said later about them
and by the Solicitor General, on behalf of the other respondents in that case and the respondents in the other
cases.
1. What is the procedure prescribed by the 1935 Constitution for its amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:
1. That the amendments to the Constitution be proposed either by Congress or by a convention called for that
purpose, "by a vote of three-fourths of all the Members of the Senate and the House of Representatives voting
separately," but "in joint session assembled";
2. That such amendments be "submitted to the people for their ratification" at an "election"; and
3. That such amendments be "approved by a majority of the votes cast" in said election.
Compliance with the first requirement is virtually conceded, although the petitioners in L-36164 question the
authority of the 1971 Constitutional Convention to incorporate certain provisions into the draft of the new or revised
Constitution. The main issue in these five (5) cases hinges, therefore, on whether or not the last two (2)
requirements have been complied with.
2. Has the contested draft of the new or revised Constitution been submitted to the people for their ratification
conformably to Art. XV of the Constitution?
In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be taken into
account, namely, section I of Art. V and Art. X of said Constitution. The former reads:
Section 1. 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.
Sections 1 and 2 of Art. X of the Constitution ordain in part:
Section 1. There shall be an independent Commission on Elections composed of a Chairman and
two other Members to be appointed by the President with the consent of the Commission on
Appointments, who shall hold office for a term of nine years and may not be reappointed. ...
xxx xxx xxx
Sec. 2. The Commission on Elections shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections and shall exercise all other functions
which may be conferred upon it by law. It shall decide, save those involving the right to
vote, alladministrative questions, affecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors and of other election
officials. All law enforcement agencies and instrumentalities of the Government, when so required by
the Commission, shall act as its deputies for the purpose of insuring fee, orderly, and honest
elections. The decisions, orders, and rulings of the Commission shall be subject to review by the
Supreme Court.
xxx xxx xxx
39
a. Who may vote in a plebiscite under Art. V of the Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of the right of
suffrage. They claim that no other persons than "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," may
exercise the right of suffrage in the Philippines. Upon the other hand, the Solicitor General contends that said
provision merely guarantees the right of suffrage to persons possessing the aforementioned qualifications and none
of the disqualifications, prescribed by law, and that said right may be vested by competent authorities in
persons lacking some or all of the aforementioned qualifications, and possessing some of the aforesaid
disqualifications. In support of this view, he invokes the permissive nature of the language "(s)uffrage may be
exercised" used in section 1 of Art. V of the Constitution, and the provisions of the Revised Barrio Charter,
Republic Act No. 3590, particularly sections 4 and 6 thereof, providing that citizens of the Philippines "eighteen
years of age or over," who are registered in the list of barrio assembly members, shall be members thereof and may
participate as such in the plebiscites prescribed in said Act.
I cannot accept the Solicitor Generals theory. Art. V of the Constitution declares who may exercise the right of
suffrage, so that those lacking the qualifications therein prescribed may not exercise such right. This view is borne
out by the records of the Constitutional Convention that drafted the 1935 Constitution. Indeed, section 1 of Art. V of
the 1935 Constitution was largely based on the report of the committee on suffrage of the Convention that drafted
said Constitution which report was, in turn, "strongly influenced by the election laws then in force in the Philippines
... ."
40
" Said committee had recommended: 1) "That the right of suffrage should exercised only by male citizens of the
Philippines." 2) "That should be limited to those who could read and write." 3) "That the duty to vote should be
made obligatory." It appears that the first recommendation was discussed extensively in the Convention, and that, by way
of compromise, it was eventually agreed to include, in section 1 of Art. V of the Constitution, the second sentence thereof
imposing upon the National Assembly established by the original Constitution instead of the bicameral Congress
subsequently created by amendment said Constitution the duty to "extend the right of suffrage women, if in a plebiscite
to, 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."
41
The third recommendation on "compulsory" voting was, also debated upon rather extensively, after which it was
rejected by the Convention.
42
This accounts, in my opinion, for the permissive language used in the first sentence of
said Art. V. Despite some debates on the age qualification amendment having been proposed to reduce the same to
18 or 20, which were rejected, and the residence qualification, as well as the disqualifications to the exercise of the right of
suffrage the second recommendation limiting the right of suffrage to those who could "read and write" was in the
language of Dr. Jose M. Aruego, one of the Delegates to said Convention "readily approved in the Convention without
any dissenting vote," although there was some debate on whether the Fundamental Law should specify the language or
dialect that the voter could read and write, which was decided in the negative.
43
What is relevant to the issue before Us is the fact that the constitutional provision under consideration was meant to
be and is a grant or conferment of a right to persons possessing the qualifications and none of the disqualifications
therein mentioned, which in turn, constitute a limitation of or restriction to said right, and cannot, accordingly, be
dispensed with, except by constitutional amendment. Obviously, every such constitutional grant or conferment of a
right is necessarily a negation of the authority of Congress or of any other branch of the Government to deny said
right to the subject of the grant and, in this sense only, may the same partake of the nature of a guarantee. But,
this does not imply not even remotely, that the Fundamental Law allows Congress or anybody else to vest in those
lacking the qualifications and having the disqualifications mentioned in the Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of Art. V of
the Constitution was "strongly influenced by the election laws then in force in the Philippines." Our first Election Law
was Act 1582, passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768, and
incorporated into the Administrative Code of 1916 Act 2657 as chapter 20 thereof, and then in the
Administrative Code of 1917 Act 2711 as chapter 18 thereof, which, in turn, was amended by Act 3387,
approved on December 3, 1927. Sections 431 and 432 of said Code of 1917, prescribing, respectively, the
qualifications for and disqualifications from voting, are quoted below.
44
In all of these legislative acts, the provisions
concerning the qualifications of voters partook of the nature of a grant or recognition of the right of suffrage, and, hence, of
adenial thereof to those who lacked the requisite qualification and possessed any of the statutory disqualifications. In
short, the history of section 1, Art. V of the Constitution, shows beyond doubt than the same conferred not guaranteed
the authority to persons having the qualifications prescribed therein and none of disqualifications to be specified in
ordinary laws and, necessary implication, denied such right to those lacking any said qualifications, or having any of the
aforementioned disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to a
plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935 Constitution, by reducing the voting age
from twenty-one (21) years to eighteen (18) years, which, however, did not materialize on account of the decision of
this Court in Tolentino v. Commission on Elections,
45
granting the writs, of prohibition and injunction therein applied for,
upon the ground that, under the Constitution, all of the amendments adopted by the Convention should be submitted in
"an election" or a single election, not separately or in several or distinct elections, and that the proposed amendment
sought to be submitted to a plebiscite was not even a complete amendment, but a "partial amendment" of said section
1, which could be amended further, after its ratification, had the same taken place, so that the aforementioned partial
amendment was, for legal purposes, no more than a provisional or temporary amendment. Said partial amendment was
predicated upon the generally accepted contemporary construction that, under the 1935 Constitution, persons below
twenty-one (21) years of age could not exercise the right of suffrage, without a previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in barrio assembly
plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict between the last paragraph of
said section 6 of Rep. Act No. 3590,
46
pursuant to which the "majority vote of all the barrio assemblymembers" (which
include all barrio residents 18 years of age or over, duly registered in the list of barrio assembly members) is necessary
for the approval, in an assembly plebiscite, of "any budgetary, supplemental appropriations or special tax ordinances,"
whereas, according to the paragraph preceding the penultimate one of said section,
47
"(a)ll duly registered barrio
assembly members qualified to vote" who, pursuant to section 10 of the same Act, must be citizens "of the
Philippines, twenty-one years of age or over, able to read and write," and residents the barrio "during the six months
immediately preceding election, duly registered in the list of voters" and " otherwise disqualified ..." just like the
provisions of present and past election codes of the Philippines and Art. V of the 1935 Constitution "may vote in the
plebiscite."
I believe, however, that the apparent conflict should resolved in favor of the 21-year-old members of the assembly,
not only because this interpretation is in accord with Art. V the Constitution, but, also, because provisions of a
Constitution particularly of a written and rigid one, like ours generally accorded a mandatory status unless the
intention to the contrary is manifest, which is not so as regards said Art. V for otherwise they would not have
been considered sufficiently important to be included in the Fundamental Law of the land.
48
Besides, it would be
illogical, if not absurd, believe that Republic Act No. 3590 requires, for the most important measures for which it demands
in addition to favorable action of the barrio council the approval of barrio assembly through a plebiscite, lesser
qualifications than those prescribed in dealing with ordinary measures for which such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V thereof to
apply only to elections of public officers, not to plebiscites for the ratification of amendments to the Fundamental
Law or revision thereof, or of an entirely new Constitution, and permit the legislature to require lesser qualifications
for such ratification, notwithstanding the fact that the object thereof much more important if not fundamental, such
as the basic changes introduced in the draft of the revised Constitution adopted by the 1971 Constitutional
Convention, which a intended to be in force permanently, or, at least, for many decades, and to affect the way of life
of the nation and, accordingly, demands greater experience and maturity on the part of the electorate than that
required for the election of public officers,
49
whose average term ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not they possessed
the other qualifications laid down in both the Constitution and the present Election Code,
50
and of whether or not they
are disqualified under the provisions of said Constitution and Code,
51
or those of Republic Act No. 3590,
52
have
participated and voted in the Citizens Assemblies that have allegedly ratified the new or revised Constitution drafted by
the 1971 Constitutional Convention.
In fact, according to the latest official data, the total number of registered voters 21 years of age or over in the entire
Philippines, available in January 1973, was less than 12 million. Yet, Proclamation No. 1102 states that 14,976,56
"members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against
... 743,869 who voted for its rejection," whereas, on the question whether or not the people still wanted a plebiscite
to be called to ratify the new Constitution, "... 14,298,814 answered that there was no need for a plebiscite and that
the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite." In other words, it is
conceded that the number of people who allegedly voted at the Citizens Assemblies for exceeded the number of
registered voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens Assemblies and We have more to say on this point in
subsequent pages were fundamentally irregular, in that persons lacking the qualifications prescribed in section 1
of Art. V of the Constitution were allowed to vote in said Assemblies. And, since there is no means by which the
invalid votes of those less than 21 years of age can be separated or segregated from those of the qualified voters,
the proceedings in the Citizens Assemblies must be considered null and void.
53
It has been held that "(t)he power to reject an entire poll ... should be exercised ... in a case where it is impossibleto
ascertain with reasonable certainty the true vote," as where "it is impossible to separate the legal votes from the
illegal or spurious ... ."
54
In Usman v. Commission on Elections, et al.,
55
We held:
Several circumstances, defying exact description and dependent mainly on the factual milieu of the
particular controversy, have the effect of destroying the integrity and authenticity of disputed election
returns and of avoiding their prima facie value and character. If satisfactorily proven, although in a
summary proceeding, such circumstances as alleged by the affected or interested parties, stamp the
election returns with the indelible mark of falsity and irregularity, and, consequently, of unreliability,
and justify their exclusion from the canvass.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the
Fundamental Law to be "valid" as part thereof, and the term "votes cast" has a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65 N.W. 956, 64
Minn. 16, to have been used as an equivalent of "ballots cast."
56
The word "cast" is defined as "to deposit formally or officially."
57
It seems to us that a vote is cast when a ballot is deposited indicating a "choice." ... The word "cast"
means "deposit (a ballot) formally or officially ... .
... In simple words, we would define a "vote cast" as the exercise on a ballot of the choice of the
voter on the measure proposed.
58
In short, said Art. XV envisages with the term "votes cast" choices made on ballots not orally or by raising
by the persons taking part in plebiscites. This is but natural and logical, for, since the early years of the American
regime, we had adopted the Australian Ballot System, with its major characteristics, namely, uniform official
ballots prepared and furnished by the Government and secrecy in the voting, with the advantage of keeping records
that permit judicial inquiry, when necessary, into the accuracy of the election returns. And the 1935 Constitution has
been consistently interpreted in all plebiscites for the ratification rejection of proposed amendments thereto, from
1935 to 1967. Hence, the viva voce voting in the Citizens Assemblies was and is null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof, particularly its
sections 1 and 2. Indeed, section 1 provides that "(t)here shall be an independent Commission on Elections ... ."
The point to be stressed here is the term "independent." Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of the Commission, would it have been
depends upon either Congress or the Judiciary? The answer must be the negative, because the functions of the
Commission "enforcement and administration" of election laws are neither legislative nor judicial in nature,
and, hence, beyond the field allocated to either Congress or courts of justice. Said functions are by their nature
essentially executive, for which reason, the Commission would be under the "control" of the President, pursuant to
section 10, paragraph (1) of Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it (the
Commission) is an "independent" body. In other words, in amending the original 1935 Constitution, by inserting
therein said Art. X, on the Commission on Elections, the purpose was to make said Commission independent
principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a constitutional
organ, election laws in the Philippines were enforced by the then Department of the Interior, through its Executive
Bureau, one of the offices under the supervision and control of said Department. The same like other
departments of the Executive Branch of the Government was, in turn, under the control of the Chief Executive,
before the adoption of the 1935 Constitution, and had been until the abolition of said Department, sometime ago
under the control of the President of the Philippines, since the effectivity of said Fundamental Law. Under the
provisions thereof, the Executive could so use his power of control over the Department of the Interior and its
Executive Bureau as to place the minority party at such a great, if not decisive, disadvantage, as to deprive it, in
effect, of the opportunity to defeat the political party in power, and, hence, to enable the same to perpetuate itself
therein. To forestall this possibility, the original 1935 Constitution was amended by the establishment of the
Commission on Elections as a constitutional body independent primarily of the President of the Philippines.
The independence of the Commission was sought to be strengthened by the long term of office of its members
nine (9) years, except those first appointed
59
the longest under the Constitution, second only to that of the Auditor
General
60
; by providing that they may not be removed from office except by impeachment, placing them, in this respect,
on the same plane as the President, the Vice-President, the Justices of the Supreme Court and the Auditor General; that
they may not be reappointed; that their salaries, "shall be neither increased nor diminished during their term of office"; that
the decisions the Commission "shall be subject to review by the Supreme Court" only
61
; that "(n)o pardon, parole, or
suspension sentence for the violation of any election law may be granted without the favorable recommendation of the
Commission"
62
; and, that its chairman and members "shall not, during the continuance in office, engage in the practice of
any profession or intervene, directly or indirectly, in the management or control of any private enterprise which in anyway
may affected by the functions of their office; nor shall they, directly or indirectly, be financially interested in any contract
with the Government or any subdivision or instrumentality thereof."
63
Thus, the framers of the amendment to the original
Constitution of 1935 endeavored to do everything possible protect and insure the independence of each member of the
Commission.
With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he Commission on Elections
shall have exclusive charge of the enforcement and administration all laws relative to the conduct of elections,"
apart from such other "functions which may be conferred upon it by law." It further provides that the Commission
"shall decide, save those involving the right to vote, all administrative question affecting elections, including the
determination of the number and location of polling places, and the appointment of election inspectors and of other
election officials." And, to forests possible conflicts or frictions between the Commission, on one hand, and the other
offices or agencies of the executive department, on the other, said section 2 postulates that "(a)ll law enforcement
agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for
the purpose of insuring free, orderly, and honest elections." Not satisfied with this, it declares, in effect, that "(t)he
decisions, orders, and ruling of the Commission" shall not be subject to review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise known as the
Election Code of 1971, implements the constitutional powers of the Commission on Elections and grants additional
powers thereto, some of which are enumerated in sections 5 and 6 of said Act, quoted below.
64
Moreover, said Act
contains, inter alia, detailed provisions regulating contributions and other (corrupt) practices; the establishment of election
precincts; the designation and arrangement of polling places, including voting booths, to protect the secrecy of the ballot;
formation of lists of voters, the identification and registration of voters, the proceedings therefor, as well as for the
inclusion in, or exclusion or cancellation from said list and the publication thereof; the establishment of municipal,
provincial and files of registered voters; the composition and appointment of board of election inspectors; the particulars of
the official ballots to be used and the precautions to be taken to insure authenticity thereof; the procedure for the casting
of votes; the counting of votes by boards of inspectors; the rules for the appreciation of ballots and the preparation and
disposition of election returns; the constitution and operation of municipal, provincials and national boards of canvassers;
the presentation of the political parties and/or their candidates in each election precinct; the proclamation of the results,
including, in the case of election of public officers, election contests; and the jurisdiction of courts of justice in cases of
violation of the provisions of said Election Code and the penalties for such violations.
Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free, orderly, and
honest election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the foregoing constitutional and
statutory provisions was followed by the so-called Barangays or Citizens Assemblies. And no reasons have been
given, or even sought to be given therefor. In many, if not most, instances, the election were held a viva voce, thus
depriving the electorate of the right to vote secretly one of the most, fundamental and critical features of our
election laws from time immemorial particularly at a time when the same was of utmostimportance, owing to
the existence of Martial Law.
In Glen v. Gnau,
65
involving the casting of many votes, openly, without complying with the requirements of the law
pertinent thereto, it was held that the "election officers" involved "cannot be too strongly condemned" therefor and that if
they "could legally dispense with such requirement ... they could with equal propriety dispense with all of them, including
the one that the vote shall be by secret ballot, or even by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted by the 1971
Constitutional Convention, or on December 1, 1972, Presidential Decree No. 73 (on the validity of which which
was contested in the plebiscite cases, as well as in the 1972 habeas corpus cases
66
We need not, in the case of
bar, express any opinion) was issued, calling a plebiscite, to be held on January 15, 1973, at which the proposed
Constitution would be submitted to the people for ratification or rejection; directing the publication of said proposed
Constitution; and declaring, inter alia, that "(t)he provision of the Election Code of 1971, insofar as they are not
inconsistent" with said decree excepting those "regarding right and obligations of political parties and candidates"
"shall apply to the conduct of the plebiscite." Indeed, section 2 of said Election Code of 1971 provides that "(a)ll elections
of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code." General
Order No. 20, dated January 7, 1973, postponing until further notice, "the plebiscite scheduled to be held on January 15,
1973," said nothing about the procedure to be followed in plebiscite to take place at such notice, and no other order or
decree has been brought to Our attention, expressly or impliedly repealing the provisions of Presidential Decree 73,
insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of Presidential
Decree No. 73 insofar as they allow free public discussion of proposed Constitution ... temporarily suspending
effects of Proclamation No. 1081 for the purposes of free open dabate on the proposed Constitution ... ." This
specific mention of the portions of the decrees or orders or instructions suspended by General Order No. 20
necessarily implies that all other portions of said decrees, orders or instructions and, hence, the provisions of
Presidential Decree No. 73 outlining the procedure to be followed in the plebiscite for ratification or rejection of the
proposed Constitution remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A the text of which is quoted below
67
the Executive
declared, inter alia, that the collective views expressed in the Citizens Assemblies "shall be considered in the formulation
of national policies or programs and, wherever practicable, shall be translated into concrete and specific decision"; that
such Citizens Assemblies "shall consider vital national issues ... like the holding of the plebiscite on the new Constitution
... and others in the future, which shall serve as guide or basis for action or decision by the national government"; and that
the Citizens Assemblies "shall conduct between January 10 and 15, 1973, a referendum on important national issues,
including those specified in paragraph 2 hereof, and submit the results thereof to the Department of Local Governments
and Community Development immediately thereafter, ... ." As in Presidential Decree No. 86, this Decree No. 86-A does
not and cannot exclude the exercise of the constitutional supervisory power of the Commission on Elections or its
participation in the proceedings in said Assemblies, if the same had been intended to constitute the "election" or Plebiscite
required Art. V of the 1935 Constitution. The provision of Decree No. 86-A directing the immediate submission of the
result thereof to the Department of Local Governments Community Development is not necessarily inconsistent with, and
must be subordinate to the constitutional power of the Commission on Elections to exercise its "exclusive authority over
the enforcement and administration of all laws to the conduct of elections," if the proceedings in the Assemblies would
partake of the nature of an "election" or plebiscite for the ratification or rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B, dated 1973,
ordering "that important national issues shall from time to time; be referred to the Barangays (Citizens Assemblies)
for resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum
include the matter of ratification of the Constitution by the 1971 Constitutional Convention" and that "(t)he Secretary
of the Department of Local Governments and Community Development shall insure the implementation of this
order." As in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing directives do not necessarily exclude
exercise of the powers vested by the 1935 Constitution in the Commission on Elections, even if the Executive had
the authority to repeal Art. X of our Fundamental Law which he does not possess. Copy of Presidential Decree
No. 86-B is appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took place without the intervention of the Commission
on Elections, and without complying with the provisions of the Election Code of 1971 or even of those of Presidential
Decree No. 73. What is more, they were held under the supervision of the very officers and agencies of the
Executive Department sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse still, said officers
and agencies of the 1935 Constitution would be favored thereby, owing to the practical indefinite extension of their
respective terms of office in consequence of section 9 of the Transitory Provisions, found in Art. XVII of the
proposed Constitution, without any elections therefor. And the procedure therein mostly followed is such that there
is no reasonable means of checking the accuracy of the returns files by the officers who conducted said plebiscites.
This is another patent violation of Art. of the Constitution which can hardly be sanctioned. And, since the provisions
of this article form part of the fundamental scheme set forth in the 1935 Constitution, as amended, to insure the
"free, orderly, and honest" expression of the peoples will, the aforementioned violation thereof renders null and void
the contested proceedings or alleged plebiscite in the Citizens Assemblies, insofar as the same are claimed to have
ratified the revised Constitution proposed by the 1971 Constitutional Convention. "...(a)ll the authorities agree that
the legal definition of an election, as well as that which is usually and ordinarily understood by the term, is a
choosing or as election by those having a right to participate (in the selection) of those who shall fill the offices, or of
the adoption or rejection of any public measure affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25
Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11
L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouviers Law Dictionary.
68
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
Citizens Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is precisely being
contested by petitioners herein. Respondents claim that said proclamation is "conclusive" upon this Court, or is, at
least, entitled to full faith and credence, as an enrolled bill; that the proposed Constitution has been, in fact, ratified,
approved or adopted by the "overwhelming" majority of the people; that Art. XV of the 1935 Constitution has thus
been "substancially" complied with; and that the Court refrain from passing upon the validity of Proclamation No.
1102, not only because such question is political in nature, but, also, because should the Court invalidate the
proclamation, the former would, in effect, veto the action of the people in whom sovereignty resides and from its
power are derived.
The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on which it is
predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of Minnessota has aptly put
it
... every officer under a constitutional government must act according to law and subject to its
restrictions, and every departure therefrom or disregard thereof must subject him to the restraining
and controlling of the people, acting through the agency of the judiciary; for it must be remembered
that the people act through courts, as well as through the executive or the Legislature. One
department is just as representative as the other, and the judiciary is the department which is
charged with the special duty of determining the limitations which the law places upon all official
action. ... .
Accordingly, the issue boils downs to whether or not the Executive acted within the limits of his authority when he
certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of
all the Barangays (Citizens Assemblies) throughout the Philippines and has thereby come into effect."
In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he certified in said
proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to place beyond the Executive the
power to supervise or even exercise any authority whatsoever over "all laws relative to the conduct of elections,"
and, hence, whether the elections are for the choice or selection of public officers or for the ratification or rejection of
any proposed amendment, or revision of the Fundamental Law, since the proceedings for the latter are, also,
referred to in said Art. XV as "elections".
The Solicitor General stated, in his argument before this Court, that he had been informed that there was in each
municipality a municipal association of presidents of the citizens assemblies for each barrio of the municipality; that
the president of each such municipal association formed part of a provincial or city association of presidents of such
municipal associations; that the president of each one of these provincial or city associations in turn formed part of a
National Association or Federation of Presidents of such Provincial or City Associations; and that one Francisco
Cruz from Pasig, Rizal, as President of said National Association or Federation, reported to the President of the
Philippines, in the morning of January 17, 1973, the total result of the voting in the citizens assemblies all over the
country from January 10 to January 15, 1973. The Solicitor General further intimated that the said municipal
associations had reported the results of the citizens assemblies in their respective municipalities to the
corresponding Provincial Association, which, in turn, transmitted the results of the voting in the to the Department of
Local Governments and Community Development, which tabulated the results of the voting in the citizens
assemblies throughout the Philippines and then turned them over to Mr. Franciso Cruz, as President or acting
President of the National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported
said results (tabulated by the Department of Governments and Community Development) to the Chief Executive,
who, accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972, so that he
could possibly have been a member on January 17, 1973, of a municipal association of presidents of barrio or ward
citizens assemblies, much less of a Provincial, City or National Association or Federation of Presidents of any such
provincial or city associations.
Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of this Court of
same date, the Solicitor General was asked to submit, together with his notes on his oral argument, a true copy of
aforementioned report of Mr. Cruz to the President and of "(p)roclamation, decree, instruction, order, regulation or
circular, if any, creating or directing or authorizing creation, establishment or organization" of said municipal,
provincial and national associations, but neither a copy of alleged report to the President, nor a copy of any
"(p)roclamation, decree, instruction, order, regulation or circular," has been submitted to this Court. In the absence
of said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid of
any factual and legalfoundation. Hence, the conclusion set forth in the dispositive portion of said Proclamation No.
1102, to the effect that the proposed new or revised Constitution had been ratified by majority of the votes cast by
the people, can not possibly have any legal effect or value.
The theory that said proclamation is "conclusive upon Court is clearly untenable. If it were, acts of the Executive and
those of Congress could not possibly be annulled or invalidated by courts of justice. Yet, such is not the case. In
fact, even a resolution of Congress declaring that a given person has been elected President or Vice-President of
the Philippines as provided in the Constitution,
69
is not conclusive upon the courts. It is no more than prima
facieevidence of what is attested to by said resolution.
70
If assailed directly in appropriate proceedings, such as an
election protest, if and when authorized by law, as it is in the Philippines, the Court may receive evidence and declare, in
accordance therewith, who was duly elected to the office involved.
71
If prior to the creation of the Presidential Electoral
Tribunal, no such protest could be filed, it was not because the resolution of Congress declaring who had been elected
President or Vice-President was conclusive upon courts of justice, but because there was no law permitting the filing of
such protest and declaring what court or body would hear and decide the same. So, too, a declaration to the effect that a
given amendment to the Constitution or revised or new Constitution has been ratified by a majority of the votes cast
therefor, may be duly assailedin court and be the object of judicial inquiry, in direct proceedings therefor such as the
cases at bar and the issue raised therein may and should be decided in accordance with the evidence presented.
The case of In re McConaughy
72
is squarely in point. "As the Constitution stood from the organization of the state" of
Minnessota "all taxes were required to be raised under the system known as the general property tax. Dissatisfaction
with the results of this method and the development of more scientific and satisfactory methods of raising revenue
induced the Legislature to submit to the people an amendment to the Constitution which provided merely that taxes shall
be uniform upon the same class of subjects. This proposed amendment was submitted at the general election held in
November, 1906, and in due time it was certified by the state canvassing board and proclaimed by the Governor as
having been legally adopted. Acting upon the assumption that the amendment had become a part of the Constitution, the
Legislature enacted statutes providing for a State Tax Commission and a mortgage registry tax, and the latter statute,
upon the same theory, was held constitutional" by said Court. "The district court found that the amendment had no in fact
been adopted, and on this appeal" the Supreme Court was "required to determine the correctness of that conclusion."
Referring to the effect of the certification of the State Board of Canvassers created by the Legislature and of
theproclamation made by the Governor based thereon, the Court held: "It will be noted that this board does no more
than tabulate the reports received from the various county board and add up and certify the results. State v. Mason,
45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers, and
canvassing boards are not conclusive and that the final decision must rest with the courts, unless the law declares
that the decisions of the board shall be final" and there is no such law in the cases at bar. "... The correctness of
the conclusion of the state board rests upon the correctness of the returns made by the county boards and it
is inconceivable that it was intended that this statement of result should be final and conclusive regardless of the
actual facts. The proclamation of the Governor adds nothing in the way of conclusiveness to the legal effect of the
action of the canvassing board. Its purpose is to formally notify the people of the state of the result of the voting as
found by the canvassing board. James on Const. Conv. (4th Ed.) sec. 523."
In Bott v. Wartz,
73
the Court reviewed the statement of results of the election made by the canvassing board, in order
that the true results could be judicially determined. And so did the court in Rice v. Palmer.
74
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission on Elections,
"the enforcement and administration of all laws relative to the conduct of elections," independently of the Executive,
and there is not even a certification by the Commission in support of the alleged results of the citizens assemblies
relied upon in Proclamation No. 1102 apart from the fact that on January 17, 1973 neither the alleged president
of the Federation of Provincial or City Barangays nor the Department of Local Governments had certified to the
President the alleged result of the citizens assemblies all over the Philippines it follows necessarily that, from a
constitutional and legal viewpoint, Proclamation No. 1102 is not even prima facie evidence of the alleged ratification
of the proposed Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of the preceding
topic, the new or revised Constitution proposed by the 1971 Constitutional Convention was not ratified in
accordance with the provisions of the 1935 Constitution. In fact, it has not even been, ratified in accordance with
said proposed Constitution, the minimum age requirement therein for the exercise of the right of suffrage
beingeighteen (18) years, apart from the fact that Art. VI of the proposed Constitution requires "secret" voting, which
was not observed in many, if not most, Citizens Assemblies. Besides, both the 1935 Constitution and the proposed
Constitution require a "majority of the votes cast" in an election or plebiscite called for the ratification of an
amendment or revision of the first Constitution or the effectivity of the proposed Constitution, and the phrase "votes
cast" has been construed to mean "votes made in writing not orally, as it was in many Citizens Assemblies.
75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV of the
Constitution has not been complied with, and since the alleged substantial compliance with the requirements thereof
partakes of the nature of a defense set up by the other respondents in these cases, the burden of proving such
defense which, if true, should be within their peculiar knowledge is clearly on such respondents. Accordingly, if
despite the extensive notes and documents submitted by the parties herein, the members of the Court do not know
or are not prepared to say whether or not the majority of the people or of those who took part in the Citizens
Assemblies have assented to the proposed Constitution, the logical step would be to give due course to these
cases, require the respondents to file their answers, and the plaintiffs their reply, and, thereafter, to receive the
pertinent evidence and then proceed to the determination of the issues raised thereby. Otherwise, we would be
placing upon the petitioners the burden of disproving a defense set up by the respondents, who havenot so
far established the truth of such defense.
Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to believe that
many, if not most, of the people did not know that the Citizens Assemblies were, at the time they were held,
plebiscites for the ratification or rejection of the proposed Constitution. Hence, in Our decision in the plebiscite
cases, We said, inter alia:
Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the
effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed
Constitution. On December 23, the President announced the postponement of the plebiscite for the
ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until
January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to
be held on January 15, 1973, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed
Constitution.
In view of these events relative to the postponement of the aforementioned plebiscite, the Court
deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were known or announced
officially. Then again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular
session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that
the President does not have the legislative authority to call a plebiscite and appropriate funds
therefor, which Congress unquestionably could do, particularly in view of the formal postponement of
the plebiscite by the President reportedly after consultation with, among others, the leaders of
Congress and the Commission on Elections the Court deemed it more imperative to defer its final
action on these cases.
And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 four (4) days
after the last hearing of said cases
76
the President announced the postponement of the plebiscite scheduled by
Presidential Decree No. 73 to be held on January 15, 1973, after consultation with the Commission on Elections and the
leaders of Congress, owing to doubts on the sufficiency of the time available to translate the proposed Constitution into
some local dialects and to comply with some pre-electoral requirements, as well as to afford the people a reasonable
opportunity to be posted on the contents and implications of said transcendental document. On January 7, 1973, General
Order No. 20 was issued formally, postponing said plebiscite "until further notice." How can said postponement be
reconciled with the theory that the proceedings in the Citizens Assemblies scheduled to be held from January 10 to
January 15, 1973, were "plebiscites," in effect, accelerated, according to the theory of the Solicitor General, for the
ratification of the proposed Constitution? If said Assemblies were meant to be the plebiscites or elections envisaged in Art.
XV of the Constitution, what, then, was the "plebiscite" postponed by General Order No. 20? Under these circumstances,
it was only reasonable for the people who attended such assemblies to believe that the same were not an "election" or
plebiscite for the ratification or adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the Citizens Assemblies, namely:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos is running the affairs of the government? [Bulletin Today,
January 10, 1973; emphasis an additional question.]
[6] Do you approve of the citizens assemblies as the base of popular government to decide issues of
national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new Constitution?
[9] Do you want the elections to be held in November, 1973 in accordance with the provisions of the
1935 Constitution?
[10] If the elections would not be held, when do you want the next elections to be called?
[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the ratification of a
proposed Constitution or of a proposed amendment thereto. Secondly, neither is the language of question No. 7
"Do you approve the new Constitution?" One approves "of" the act of another which does not need such approval
for the effectivity of said act, which the first person, however, finds to be good, wise satisfactory. The approval of the
majority of the votes cast in plebiscite is, however, essential for an amendment to the Constitution to be valid as part
thereof. Thirdly, if the proceedings in the Citizens Assemblies constituted a plebiscite question No. 8 would have
been unnecessary and improper, regardless of whether question No. 7 were answered affirmatively or negatively. If
the majority of the answers to question No. 7 were in the affirmative, the proposed Constitution would have become
effective and no other plebiscite could be held thereafter in connection therewith, even if the majority of the answers
to question No. 8 were, also, in the affirmative. If the majority of the answers to question No. 7 were in the negative,
neither may another plebiscite be held, even if the majority of the answers to question No. 8 were in the affirmative.
In either case, not more than one plebiscite could be held for the ratification or rejection of the proposed
Constitution. In short, the insertion of said two (2) questions apart from the other questions adverted to above
indicates strongly that the proceedings therein did not partake of the nature of a plebiscite or election for the
ratification or rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by the
people in the citizens assemblies all over the Philippines, when it is, to my mind, a matter of judicial knowledge that
there have been no such citizens assemblies in many parts of Manila and suburbs, not to say, also, in other parts of
the Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated January 15, 1973, to the Chief Executive,
the former reported:
... This report includes a resumee (sic) of the activities we undertook in effecting the referendum on
the eleven questions you wanted our people consulted on and the Summary of Results thereof for
each municipality and for the whole province.
xxx xxx xxx
... Our initial plans and preparations, however, dealt only on the original five questions.
Consequently, when we received an instruction on January 10 to change the questions, we urgently
suspended all scheduled Citizens Assembly meetings on that day and called all Mayors, Chiefs of
Offices and other government officials to another conference to discuss with them the new set of
guidelines and materials to be used.
On January 11, ... another instruction from the top was received to include the original five questions
among those to be discussed and asked in the Citizens Assembly meetings. With this latest
order, we again had to make modifications in our instructions to all those managing and supervising
the holding of the Citizens Assembly meetings throughout the province. ... Aside from the
coordinators we had from the Office of the Governor, the splendid cooperation and support extended
by almost all government officials and employees in the province, particularly of the Department of
Education, PC and PACD personnel, provided us with enough hands to trouble shoot and implement
sudden changes in the instructions anytime and anywhere needed. ...
... As to our people, in general, their enthusiastic participation showed their preference and
readiness to accept this new method of government to people consultation in shaping up
government policies.
Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens Assembly meetings
..." and call all available officials "... to discuss with them the new set of guidelines and materials to be used ... ."
Then, "on January 11 ... another instruction from the top was received to include the original five questions among
those be discussed and asked in the Citizens Assembly meetings. With this latest order, we again had to make
modifications in our instructions to all those managing and supervising holding of the Citizens Assembly meetings
throughout province. ... As to our people, in general, their enthusiastic participation showed their preference and
readiness to accept the new method of government to people consultation in shaping up government policies."
This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had still to discuss
not put into operation means and ways to carry out the changing instructions from the top on how to organize the
citizens assemblies, what to do therein and even what questions or topics to propound or touch in said assemblies;
2) that the assemblies would involve no more than consultations or dialogues between people and government
not decisions be made by the people; and 3) that said consultations were aimed only at "shaping up government
policies" and, hence could not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a
proposed amendment of a new or revised Constitution for the latter does not entail the formulation of a policy of the
Government, but the making of decision by the people on the new way of life, as a nation, they wish to have, once
the proposed Constitution shall have been ratified.
If this was the situation in Bataan one of the provinces nearest to Manila as late as January 11, 1973, one can
easily imagine the predicament of the local officials and people in the remote barrios in northern and southern
Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact, several members of the Court, including
those of their immediate families and their household, although duly registered voters in the area of Greater Manila,
were not even notified that citizens assemblies would be held in the places where their respective residences were
located. In the Prohibition and Amendment case,
77
attention was called to the "duty cast upon the court of taking
judicial cognizance of anything affecting the existence and validity of any law or portion of the
Constitution ... ." In line with its own pronouncement in another case, the Federal Supreme Court of the United States
stressed, in Baker v. Carr,
78
that "a court is not at liberty to shut its eyes to an obvious mistake, when the validity of the
law depends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question under consideration can be answered or resolved
otherwise than in the negative.
V
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and has been run, since January 17, 1971, under
the Constitution drafted by the 1971 Constitutional Convention; that the political department of the Government has
recognized said revised Constitution; that our foreign relations are being conducted under such new or revised
Constitution; that the Legislative Department has recognized the same; and that the people, in general, have, by
their acts or omissions, indicated their conformity thereto.
As regards the so-called political organs of the Government, gather that respondents refer mainly to the offices
under the Executive Department. In a sense, the latter performs some functions which, from a constitutional
viewpoint, are politics in nature, such as in recognizing a new state or government, in accepting diplomatic
representatives accredited to our Government, and even in devising administrative means and ways to better carry
into effect. Acts of Congress which define the goals or objectives thereof, but are either imprecise or silent on the
particular measures to be resorted to in order to achieve the said goals or delegate the power to do so, expressly or
impliedly, to the Executive. This, notwithstanding, the political organ of a government that purports to be republican
is essentially the Congress or Legislative Department. Whatever may be the functions allocated to the Executive
Department specially under a written, rigid Constitution with a republican system of Government like ours the
role of that Department is inherently, basically and fundamentally executive in nature to "take care that the laws
be faithfully executed," in the language of our 1935 Constitution.
79
Consequently, I am not prepared to concede that the acts the officers and offices of the Executive Department, in
line with Proclamation No. 1102, connote a recognition thereof o an acquiescence thereto. Whether they recognized
the proposed Constitution or acquiesce thereto or not is something that cannot legally, much less necessarily or
even normally, be deduced from their acts in accordance therewith, because the are bound to obey and act in
conformity with the orders of the President, under whose "control" they are, pursuant to the 1935 Constitution. They
have absolutely no other choice, specially in view of Proclamation No. 1081 placing the Philippines under Martial
Law. Besides, by virtue of the very decrees, orders and instructions issued by the President thereafter, he had
assumed all powers of Government although some question his authority to do so and, consequently, there is
hardly anything he has done since the issuance of Proclamation No. 1102, on January 17, 1973 declaring that
the Constitution proposed by the 1971 Constitutional Convention has been ratified by the overwhelming majority of
the people that he could not do under the authority he claimed to have under Martial Law, since September 21,
1972, except the power of supervision over inferior courts and its personnel, which said proposed Constitution would
place under the Supreme Court, and which the President has not ostensibly exercised, except as to some minor
routine matters, which the Department of Justice has continued to handle, this Court having preferred to maintain
the status quo in connection therewith pending final determination of these cases, in which the effectivity of the
aforementioned Constitution is disputed.
Then, again, a given department of the Government cannot generally be said to have "recognized" its own acts.
Recognition normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a
subordinate officer or office of the Government complies with the commands of a superior officer or office, under
whose supervision and control he or it is, the former merely obeys the latter. Strictly speaking, and from a legal and
constitutional viewpoint, there is no act of recognition involved therein. Indeed, the lower officer or office, if he or it
acted otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth
80
cited by respondents herein in support of the theory of
the peoples acquiescence involved a constitution ordained in 1902 and "proclaimed by a convention duly called by a
direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of that
Convention has been recognized, accepted and acted upon as the only valid Constitution of the State" by
1. The "Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby";
2. The "Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution
ordained by the Convention ...";
3. The "individual oaths of its members to support it, and by its having been engaged for nearly a year, in legislating
under it and putting its provisions into
operation ...";
4. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions ..."; and
5. The "people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters
under it to the extent of thousands throughout the State, and by voting, under its provisions, at a general election for
their representatives in the Congress of the United States."
Note that the New Constitution of Virginia, drafted by a convention whose members were elected directly by the
people, was not submitted to the people for ratification or rejection thereof. But, it was recognized, not by the
convention itself, but by other sectors of the Government, namely, the Governor; the Legislature not merely by
individual acts of its members, but by formal joint resolution of its two (2) chambers; by the judiciary; and by the
people, in the various ways specified above. What is more, there was no martial law. In the present cases, none of
the foregoing acts of acquiescence was present. Worse still, there is martial law, the strict enforcement of which was
announced shortly before the alleged citizens assemblies. To top it all, in the Taylor case, the effectivity of the
contested amendment was not contested judicially until about one (1) year after the amendment had been put into
operation in all branches of the Government, and complied with by the people who participated in the elections held
pursuant to the provisions of the new Constitution. In the cases under consideration, the legality of Presidential
Decree No. 73 calling a plebiscite to be held on January 15, 1973, was impugned as early as December 7, 1972, or
five (5) weeks before the scheduled plebiscite, whereas the validity of Proclamation No. 1102 declaring on January
17, 1973, that the proposed Constitution had been ratified despite General Order No. 20, issued on January 7,
1972, formally and officially suspending the plebiscite until further notice was impugned as early as January 20,
1973, when L-36142 was filed, or three (3) days after the issuance of Proclamation No. 1102.
It is further alleged that a majority of the members of our House of Representatives and Senate have acquiesced in
the new or revised Constitution, by filing written statements opting to serve in the Ad Interim Assembly established
in the Transitory Provisions of said Constitution. Individual acts of recognition by members of our legislature, as well
as of other collegiate bodies under the government, are invalid as acts of said legislature or bodies, unless its
members have performed said acts in session duly assembled, or unless the law provides otherwise, and there is
no such law in the Philippines. This is a well-established principle of Administrative Law and of the Law of Public
Officers, and no plausible reason has been adduced to warrant departure therefrom.
81
Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why did it become
necessary to padlock its premises to prevent its meeting in session on January 22, 1973, and thereafter as provided
in the 1935 Constitution? It is true that, theoretically, the members of Congress, if bent on discharging their functions
under said Constitution, could have met in any other place, the building in which they perform their duties being
immaterial to the legality of their official acts. The force of this argument is, however, offset or dissipated by the fact
that, on or about December 27, 1972, immediately after a conference between the Executive, on the one hand, and
members of Congress, on the other, some of whom expressed the wish to meet in session on January 22, 1973, as
provided in the 1935 Constitution, a Daily Express columnist (Primitivo Mijares) attributed to Presidential Assistant
Guillermo de Vega a statement to the effect that "certain members of the Senate appear to be missing the point in
issue when they reportedly insisted on taking up first the question of convening Congress." The Daily Express of
that date,
82
likewise, headlined, on its front page, a "Senatorial PlotAgainst Martial Law Government Disclosed". Then,
in its issue of December 29, 1972, the same paper imputed to the Executive an appeal "to diverse groups involved in
a conspiracy to undermine" his powers" under martial law to desist from provoking a constitutional crisis ... which may
result in the exercise by me of authority I have not exercised."
No matter how good the intention behind these statement may have been, the idea implied therein was too clear
an ominous for any member of Congress who thought of organizing, holding or taking part in a session of Congress,
not to get the impression that he could hardly do so without inviting or risking the application of Martial Law to him.
Under these conditions, I do not feel justified in holding that the failure of the members of Congress to meet since
January 22, 1973, was due to their recognition, acquiescence in or conformity with the provisions of the
aforementioned Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines under Martial
Law, neither am I prepared to declare that the peoples inaction as regards Proclamation No. 1102, and their
compliance with a number of Presidential orders, decrees and/or instructions some or many of which have
admittedly had salutary effects issued subsequently thereto amounts, constitutes or attests to a ratification,
adoption or approval of said Proclamation No. 1102. In the words of the Chief Executive, "martial law
connotespower of the gun, meant coercion by the military, and compulsion and intimidation."
83
The failure to use the
gun against those who comply with the orders of the party wielding the weapon does not detract from the intimidation that
Martial Law necessarily connotes. It may reflect the good, reasonable and wholesome attitude of the person who has the
gun, either pointed at others, without pulling the trigger, or merely kept in its holster, but not without warning that he may
or would use it if he deemed it necessary. Still, the intimidation is there, and inaction or obedience of the people, under
these conditions, is not necessarily an act of conformity or acquiescence. This is specially so when we consider that the
masses are, by and large, unfamiliar with the parliamentary system, the new form of government introduced in the
proposed Constitution, with the particularity that it is not even identical to that existing in England and other parts of the
world, and that even experienced lawyers and social scientists find it difficult to grasp the full implications of some
provisions incorporated therein.
As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the same refers to a
document certified to the President for his action under the Constitution by the Senate President and the
Speaker of the House of Representatives, and attested to by the Secretary of the Senate and the Secretary of the
House of Representatives, concerning legislative measures approved by the two Houses of Congress. The
argument of the Solicitor General is, roughly, this: If the enrolled bill is entitled to full faith and credence and, to this
extent, it is conclusive upon the President and the judicial branch of the Government, why should Proclamation No.
1102 merit less consideration than in enrolled bill?
Before answering this question, I would like to ask the following: If, instead of being certified by the aforementioned
officers of Congress, the so-called enrolled bill were certified by, say, the President of the Association of Sugar
Planters and/or Millers of the Philippines, and the measure in question were a proposed legislation concerning
Sugar Plantations and Mills sponsored by said Association, which even prepared the draft of said legislation, as well
as lobbied actually for its approval, for which reason the officers of the Association, particularly, its aforementioned
president whose honesty and integrity are unquestionable were present at the deliberations in Congress when
the same approved the proposed legislation, would the enrolled bill rule apply thereto? Surely, the answer would
have to be in the negative. Why? Simply, because said Association President has absolutely no official authority to
perform in connection therewith, and, hence, his certification is legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community
Development about the tabulated results of the voting in the Citizens Assemblies allegedly held all over the
Philippines and the records do not show that any such certification, to the President of the Philippines or to the
President Federation or National Association of presidents of Provincial Associations of presidents of municipal
association presidents of barrio or ward assemblies of citizens would not, legally and constitutionally, be worth
the paper on which it is written. Why? Because said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a proposed amendment or revision of the
Constitution and, hence, to tabulate the results thereof. Worse still, it is the department which, according to Article X
of the Constitution, should not and must not be all participate in said plebiscite if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval,
84
the Highest Court of the United States that courts
"willnot stand impotent before an obvious instance of a manifestly unauthorized exercise of power."
85
I cannot honestly say, therefore, that the people impliedly or expressly indicated their conformity to the proposed
Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the procedure followed in these five (5) cases.
In this connection, it should be noted that the Court has not decided whether or not to give due course to the
petitions herein or to require the respondents to answer thereto. Instead, it has required the respondents to
comment on the respective petitions with three (3) members of the voting to dismiss them outright and then
considers comments thus submitted by the respondents as motions to dismiss, as well as set the same for hearing.
This was due to the transcendental nature of the main issue raised, the necessity of deciding the same with utmost
dispatch, and the main defense set up by respondents herein, namely, the alleged political nature of said issue,
placing the same, according to respondents, beyond the ambit of judicial inquiry and determination. If this defense
was sustained, the cases could readily be dismissed; but, owing to the importance of the questions involved, a
reasoned resolution was demanded by public interest. At the same time, respondents had cautioned against a
judicial inquiry into the merits of the issues posed on account of the magnitude of the evil consequences, it was
claimed, which would result from a decision thereon, if adverse to the Government.
As a matter of fact, some of those issues had been raised in the plebiscite cases, which were dismissed as moot
and academic, owing to the issuance of Proclamation No. 1102 subsequently to the filing of said cases, although
before the rendition of judgment therein. Still one of the members of the Court (Justice Zaldivar) was of the opinion
that the aforementioned issues should be settled in said cases, and he, accordingly, filed an opinion passing upon
the merits thereof. On the other hand, three (3) members of the Court Justices Barredo, Antonio and Esguerra
filed separate opinions favorable to the respondents in the plebiscite cases, Justice Barredo holding "that the 1935
Constitution has pro tanto passed into history and has been legitimately supplanted by the Constitution in force by
virtue of Proclamation 1102."
86
When the petitions at bar were filed, the same three (3) members of the Court,
consequently, voted for the dismissal of said petitions. The majority of the members of the Court did not share, however,
either view, believing that the main question that arose before the rendition of said judgment had not been sufficiently
discussed and argued as the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every possible opportunity to do so and to elucidate on and
discuss said question. Thus, apart from hearing the parties in oral argument for five (5) consecutive days morning
and afternoon, or a total of exactly 26 hours and 31 minutes the respective counsel filed extensive notes on their
or arguments, as well as on such additional arguments as they wished to submit, and reply notes or memoranda, in
addition to rejoinders thereto, aside from a sizeable number of document in support of their respective contentions,
or as required by the Court. The arguments, oral and written, submitted have been so extensive and exhaustive,
and the documents filed in support thereof so numerous and bulky, that, for all intents and purposes, the situation is
as if disregarding forms the petitions had been given due course and the cases had been submitted for
decision.
Accordingly, the majority of the members of the Court believe that they should express their views on the
aforementioned issues as if the same were being decided on the merits, and they have done so in their individual
opinion attached hereto. Hence, the resume of the votes cast and the tenor of the resolution, in the last pages
hereof, despite the fact that technically the Court has not, as yet, formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat and Jose Roy,
President and President Pro Tempore respectively of the Senate, it being settled in our jurisdiction, based upon the
theory of separation of powers, that the judiciary will not issue such writ to the head of a co-equal department, like
the aforementioned officers of the Senate.
In all other respects and with regard to the other respondent in said case, as well as in cases L-36142, L-36164, L-
36236 and L-36283, my vote is that the petitions therein should be given due course, there being more thanprima
facie showing that the proposed Constitution has not been ratified in accordance with Article XV of the 1935
Constitution, either strictly, substantially, or has been acquiesced in by the people or majority thereof; that said
proposed Constitution is not in force and effect; and that the 1935 Constitution is still the Fundamental Law of the
Land, without prejudice to the submission of said proposed Constitution to the people at a plebiscite for its
ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution and the provisions of the
Revised Election Code in force at the time of such plebiscite.
Perhaps others would feel that my position in these cases overlooks what they might consider to be the demands of
"judicial statesmanship," whatever may be the meaning of such phrase. I am aware of this possibility, if not
probability; but "judicial statesmanship," though consistent with Rule of Law, cannot prevail over the latter. Among
consistent ends or consistent values, there always is a hierarchy, a rule of priority.
We must realize that the New Society has many achievements which would have been very difficult, if not
impossible, to accomplish under the old dispensation. But, in and for the judiciary, statesmanship should not prevail
over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto are basic,
fundamental and essential parts of statesmanship itself.
Resume of the Votes Cast and the Courts Resolution
As earlier stated, after the submittal by the members of the Court of their individual opinions and/or concurrences as
appended hereto, the writer will now make, with the concurrence of his colleagues, a resume or summary of the
votes cast by each of them.
It should be stated that by virtue of the various approaches and views expressed during the deliberations, it was
agreed to synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the
votes. It was further agreed of course that each member of the Court would expound in his individual opinion and/or
concurrence his own approach to the stated issues and deal with them and state (or not) his opinion thereon singly
or jointly and with such priority, qualifications and modifications as he may deem proper, as well as discuss thereon
other related issues which he may consider vital and relevant to the cases at bar.
The five questions thus agreed upon as reflecting the basic issues herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable,
question?
2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not
strict, compliance) conformably to the applicable constitutional and statutory provisions?
3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed by the members of the Court in their respect
opinions and/or concurrences, are as follows:
1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro, Fernando,
Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102
presents a justiciable and non-political question. Justices Makalintal and Castro did not vote squarely on this
question, but, only inferentially, in their discussion of the second question. Justice Barredo qualified his vote, stating
that "inasmuch as it is claimed there has been approval by the people, the Court may inquire into the question of
whether or not there has actually been such an approval, and, in the affirmative, the Court should keep hands-off
out of respect to the peoples will, but, in negative, the Court may determine from both factual and legal angles
whether or not Article XV of the 1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra, or
three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial inquiry."
2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee
and myself, or six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional
Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides
only one way for ratification, i.e., "in an election or plebiscite held in accordance with law and participated in only by
qualified and duly registered voters.
87
Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been validly ratified
pursuant to Article XV, I still maintain that in the light of traditional concepts regarding the meaning and intent of said
Article, the referendum in the Citizens Assemblies, specially in the manner the votes therein were cast, reported
and canvassed, falls short of the requirements thereof. In view, however, of the fact that I have no means of refusing
to recognize as a judge that factually there was voting and that the majority of the votes were for considering as
approved the 1973 Constitution without the necessity of the usual form of plebiscite followed in past ratifications, I
am constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be deemed to
have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, it
may be said that in its political aspect, which is what counts most, after all, said Article has been substantially
complied with, and, in effect, the 1973 Constitution has been constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there has
been in effect substantial compliance with the constitutional requirements for valid ratification.
3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no
majority vote has been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have
already accepted the 1973 Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and
there has even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or
repudiation of the proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is conceded that the
doctrine stated in some American decisions to the effect that independently of the validity of the ratification, a new
Constitution once accepted acquiesced in by the people must be accorded recognition by the Court, I am not at this
stage prepared to state that such doctrine calls for application in view of the shortness of time that has elapsed and
the difficulty of ascertaining what is the mind of the people in the absence of the freedom of debate that is a
concomitant feature of martial law."
88
Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question.
Justices Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial
law, with the free expression of opinions through the usual media vehicle restricted, (they) have no means of
knowing, to the point of judicial certainty, whether the people have accepted the Constitution."
89
4. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the
strength of their view that "(T)he effectivity of the said Constitution, in the final analysis, is the basic and ultimate
question posed by these cases to resolve which considerations other than judicial, an therefore beyond the
competence of this Court,
90
are relevant and unavoidable."
91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny
respondents motion to dismiss and to give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that
it is in force by virtue of the peoples acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast
no vote thereon on the premise stated in their votes on the third question that they could not state
with judicial certainty whether the people have accepted or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the Constitution
proposed by the 1971 Constitutional Convention is not in force;
with the result that there are not enough votes to declare that the new Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio
and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and
Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is no
further judicial obstacle to the new Constitution being considered in force and effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have almost uniformly exercised the authority to
determine the validity of the proposal, submission, or ratification of constitutional amendments. It has beenjudicially
determined whether a proposed amendment received the constitutional majority of votes (Dayton v. St. Paul, 22
Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A.
251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb.
801, 71 N.W. 779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156 Ind. 104,
59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposed amendment is a single
amendment, within the constitutional requirement that every amendment must be separately submitted (State v.
Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54
Wis. 318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181,
102 N.W. 1121; People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87
Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the resolution of
submission upon the legislative journals invalidates the amendment (Koehler v. Hill, 60 Iowa, 543,14 N.W. 738,15
N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; Durfee v.
Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the
description of the amendment and the form of the ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849;
State v. Winnett [ Neb.] 110 N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W.
127); whether the method of submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy,
164 Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a notice relative to it is sufficient (Com. v.
Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the submission
may be well by resolution as by a legislative act approved by the executive (Com. v. Griest, 196 Pa. 396, 46 Atl.
505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31
L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what
election the amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: "It is contended that the determination
of the question whether an amendment to the Constitution has been carried involves the exercise of political, and
not judicial, power. If this be so, it follows that the promulgation of any purported amendment by the executive or any
executive department is final, and that the action cannot be questioned by the judiciary; but, with reference to the
conditions precedent to submitting a proposed amendment to a vote of the people, it has been repeatedly held, by
courts of the highest respectability, that it is within the power of the judiciary to inquire into the question, even in a
collateral proceeding. ... It is to be noted that under section 1 of article 20 of the Constitution of the state no
amendment can become a part of the Constitution until ratified by a vote of the people. One prerequisite is equally
as essential as the other. The amendment must first receive the requisite majority in the Legislature, and afterwards
be adopted by the requisite vote. ... It is the fact of a majority vote which makes the amendment a part of the
Constitution."
"In considering the cases it is necessary to note whether in the particular case the court was called upon to
determine between rival governments, or whether the Legislature, or some board or official, had legally performed
the duty imposed by the Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held
that the General Assembly, under the power granted by the Constitution, could change the Constitution only in the
manner prescribed by it, and that it was the duty of the court to determine whether all prerequisites had been
complied with. In Collier v. Frierson, 24 Ala. 100, it was held that a Constitution can be changes only by the peoplein
convention or in a mode described by the Constitution itself, and that if the latter mode is adopted every requisite of
the Constitution must be observed. It has been said," says the court, "that certain acts are to be done, certain
requisitions are to be observed, before a change can be effected; but to what purpose are these acts required, or
these requisitions enjoined, if the Legislature or any other department of the government candispense with them. To
do so would be to violate the instrument which they are sworn to support; and every principle of public law and
sound constitutional policy requires the court to pronounce against every amendment which is shown not to have
been made in accordance with the rules prescribed by the fundamental law.
"In State v. Swift, 69 Ind. 505, it was said that: The people of a state may form an original Constitution, or abrogate
an old one and form a new one, at any time, without any political restriction, except the Constitution of the United
States, but if they undertake to add an amendment, by the authority of legislation to a Constitution already in
existence, they can do it only by the method pointed out by the Constitution to which the amendment is added. The
power to amend a Constitution by legislative action does not confer the power to break it, any more than it confers
the power to legislate on any other subject contrary to its prohibitions. So, in State v. Timme, 54 Wis. 318, 11 N.W.
785, it was held that no amendments can be made to the Constitution of the state without a compliance with the
provisions thereof, both in the passage of such amendment by the Legislature and the manner of submitting it to the
people. The courts have not all agreed as to the strictness of compliance which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether an amendment to the
Constitution had been legally adopted. After approving the statement quoted from Collier v. Frierson, supra, that we
entertain no doubt that, to change the Constitution in an other mode than by a convention, every requisite which is
demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment, the
court held that, as substance of right is grander and more potent than methods of form, there had been substantial
compliance with the constitutional requirement that a proposed amendment to the Constitution must be entered at
length on the legislative journal. It appears that the joint resolution making submission simply provided that a
proposition should be submitted to the electors at the general election of 1880. It did not declare that the machinery
of the general election law should control, or that any particular officers or board would receive, count, or canvass
the votes cast. But the existing election machinery was adequate, and the votes were received, counted, and
canvassed, and the result declared as fully as though it had been in terms so ordered. These methods had been
followed in the adoption of previous amendments
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-35546 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENIGNO S. AQUINO, JR., RAMON MITRA,
JR., FRANCISCO RODRIGO, AND NAPOLEON RAMA, petitioners,
vs.
HON JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. ROMEO ESPINO, CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE
CONSTABULARY,respondents.
G.R. No. L-35538 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF JOAQUIN P. ROCES, TEODORO M. LOCSIN,
SR., ROLANDO FADUL, ROSALINA GALANG, GO ENG GUAN, MAXIMO V. SOLIVEN, RENATO
CONSTANTINO, AND LUIS R. MAURICIO, petitioners,
vs.
THE SECRETARY OF NATIONAL DEFENSE; THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES;
THE CHIEF, PHILIPPINE CONSTABULARY, et al., respondents.
G.R. No. L-35539 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF JOSE W. DIOKNO, CARMEN I.
DIOKNO, *1petitioner,
vs.
JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; ROMEO ESPINO, THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES.respondents.
G.R. No. L-35540 September 17, 1974
MAXIMO V. SOLIVEN, NAPOLEON G. RAMA, AND JOSE MARI VELEZ, petitioners,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; HON. FRANCISCO TATAD, PRESS
SECRETARY; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY, respondents.
G.R. No. L-35547 September 17, 1974 *2
ENRIQUE VOLTAIRE GARCIA II, petitioner,
vs.
BRIG. GEN. FIDEL RAMOS, CHIEF, PHILIPPINE CONSTABULARY; GEN. ROMEO ESPINO, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES; AND HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL
DEFENSE, respondents.
G.R. No. L-35556 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF VERONICA L. YUYITUNG AND TAN CHIN
HIAN, petitioners,
vs.
JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT. GEN. ROMEO ESPINO, CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN. FIDEL V. RAMOS, CHIEF OF THE
PHILIPPINE CONSTABULARY, respondents.
G.R. No. L-35567 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF AMANDO DORONILA JUAN L. MERCADO,
HERNANDO L. ABAYA, ERNESTO GRANADA, LUIS D. BELTRAN, TAN CHIN HIAN, BREN GUIAO, RUBEN
CUSIPAG, ROBERTO ORDOEZ, MANUEL ALMARIO AND WILLIE BAUN, petitioners,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT. GEN. ROMEO ESPINO, CHIEF
OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE
CONSTABULARY, respondents.
G.R. No. L-35571 September 17, 1974. *3
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BREN Z. GUIAO, TERESITA M.
GUIAO,petitioner,
vs.
JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; LT. GEN. ROMEO ESPINO, CHIEF OF
STAFF OF THE ARMED FORCES OF THE PHILIPPINES: AND BRIG. GEN. FIDEL V. RAMOS, CHIEF OF THE
PHILIPPINE CONSTABULARY, respondents.
G.R. No. L-35573 September 17, 1974
ERNESTO RONDON, petitioner,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. FIDEL V. RAMOS, CHIEF,
PHILIPPINE CONSTABULARY; AND MAJOR RODULFO MIANA, respondents.
MAKALINTAL, C.J .:p
These cases are all petitions for habeas corpus, the petitioners having been arrested and detained by the military by
virtue of the Presidents Proclamation No. 1081, dated September 21, 1972.
At the outset a word of clarification is in order. This is not the decision of the Court in the sense that a decision
represents a consensus of the required majority of its members not only on the judgment itself but also on the
rationalization of the issues and the conclusions arrived at. On the final result the vote is practically unanimous; this
is a statement of my individual opinion as well as a summary of the voting on the major issues. Why no particular
Justice has been designated to write just one opinion for the entire Court will presently be explained.
At one point during our deliberations on these cases it was suggested that as Chief Justice I should write that
opinion. The impracticability of the suggestion shortly became apparent for a number of reasons, only two of which
need be mentioned. First, the discussions, as they began to touch on particular issues, revealed a lack of
agreement among the Justices as to whether some of those issues should be taken up although it was not
necessary to do so, they being merely convenient for the purpose of ventilating vexing questions of public interest,
or whether the decision should be limited to those issues which are really material and decisive in these cases.
Similarly, there was no agreement as to the manner the issues should be treated and developed. The same
destination would be reached, so to speak, but through different routes and by means of different vehicles of
approach. The writing of separate opinions by individual Justices was thus unavoidable, and understandably so for
still another reason, namely, that although little overt reference to it was made at the time, the future verdict of
history was very much a factor in the thinking of the members, no other case of such transcendental significance to
the life of the nation having before confronted this Court. Second and this to me was the insuperable obstacle I
was and am of the opinion, which was shared by six other Justices
1
at the time the question was voted upon, that
petitioner Jose W. Dioknos motion of December 28, 1973 to withdraw his petition (G.R. No. L-35539) should be granted,
and therefore I was in no position to set down the ruling of the Court on each of the arguments raised by him, except
indirectly, insofar as they had been raised likewise in the other cases.
It should be explained at this point that when the Court voted on Dioknos motion to withdraw his petition he was still
under detention without charges, and continued to remain so up to the time the separate opinions of the individual
Justices were put in final form preparatory to their promulgation on September 12, which was the last day of Justice
Zaldivars tenure in the Court.
2
Before they could be promulgated, however, a major development supervened: petitioner
Diokno was released by the President in the morning of September 11, 1974. In view thereof all the members of this Court
except Justice Castro agreed to dismiss Dioknos petition on the ground that it had become moot, with those who
originally voted to grant the motion for withdrawal citing said motion as an additional ground for such dismissal.
The petitioners in the other cases, except Benigno Aquino, Jr. (G.R. No. L-35546), either have been permitted to
withdraw their petitions or have been released from detention subject to certain restrictions.
3
In the case of Aquino,
formal charges of murder, subversion and illegal possession of firearms were lodged against him with a Military
Commission on August 11, 1973; and on the following August 23 he challenged the jurisdiction of said Commission as
well as his continued detention by virtue of those charges in a petition for certiorari and prohibition filed in this Court (G.R.
No.
L-37364). The question came up as to whether or not Aquinos petition for habeas corpus should be dismissed on the
ground that the case as to him should more appropriately be resolved in this new petition. Of the twelve Justices,
however, eight voted against such dismissal and chose to consider the case on the merits.
4
On Dioknos motion to withdraw his petition I voted in favor of granting it for two reasons. In the first place such
withdrawal would not emasculate the decisive and fundamental issues of public interest that demanded to be
resolved, for they were also raised in the other cases which still remained pending. Secondly, since it was this
petitioners personal liberty that was at stake, I believed he had the right to renounce the application for habeas
corpus he initiated. Even if that right were not absolute I still would respect his choice to remove the case from this
Courts cognizance, regardless of the fact that I disagreed with many of his reasons for so doing. I could not escape
a sense of irony in this Courts turning down the plea to withdraw on the ground, so he alleges among others, that
this is no longer the Court to which he originally applied for relief because its members have taken new oaths of
office under the 1973 Constitution, and then ruling adversely to him on the merits of his petition.
It is true that some of the statements in the motion are an affront to the dignity of this Court and therefore should not
be allowed to pass unanswered. Any answer, however, would not be foreclosed by allowing the withdrawal. For my
part, since most of those statements are of a subjective character, being matters of personal belief and opinion, I
see no point in refuting them in these cases. Indeed my impression is that they were beamed less at this Court than
at the world outside and designed to make political capital of his personal situation, as the publicity given to them by
some segments of the foreign press and by local underground propaganda news sheets subsequently confirmed. It
was in fact from that perspective that I deemed it proper to respond in kind, that is, from a non-judicial forum, in an
address I delivered on February 19, 1974 before the LAWASIA, the Philippine Bar Association and the Philippine
Lawyers Association. Justice Teehankee, it may be stated, is of the opinion that a simple majority of seven votes
out of twelve is legally sufficient to make the withdrawal of Dioknos petition effective, on the theory that the
requirement of a majority of eight votes applies only to a decision on the merits.
In any event, as it turned out, after petitioner Diokno was released by the President on September 11 all the
members of this Court except Justice Castro were agreed that his petition had become moot and therefore should
no longer be considered on the merits. This notwithstanding, some of the opinions of the individual members,
particularly Justices Castro and Teehankee, should be taken in the time setting in which they were prepared, that is,
before the order for the release of Diokno was issued.
The Cases.
The events which form the background of these nine petitions are related, either briefly or in great detail, in the
separate opinions filed by the individual Justices. The petitioners were arrested and held pursuant to General Order
No. 2 of the President (September 22, 1972), "for being participants or for having given aid and comfort in the
conspiracy to seize political and state power in the country and to take over the Government by force ..."
General Order No. 2 was issued by the President in the exercise of the powers he assumed by virtue of
Proclamation No. 1081 (September 21, 1972) placing the entire country under martial law. The portions of the
proclamation immediately in point read as follows:
xxx xxx xxx
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the
powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place
the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in
my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines,
to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my direction.
In addition, I do hereby order that all persons presently detained, as well as all others who may
hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and
offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection
therewith, for crimes against national security and the law of nations, crimes against public order,
crimes involving usurpation of authority, rank, title and improper use of names, uniforms and
insignia, crimes committed by public officers, and for such other crimes as will be enumerated in
orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of
any decree, order or regulation promulgated by me personally or promulgated upon my direction
shall be kept under detention until otherwise ordered released by me or by my duly designated
representative.
The provision of the 1935 Constitution referred to in the proclamation reads: "the President shall be commander-in-
chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or
rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ
of habeas corpus, or place the Philippines or any part thereof under martial law."
1. The first major issue raised by the parties is whether this Court may inquire into the validity of Proclamation No.
1081. Stated more concretely, is the existence of conditions claimed to justify the exercise of the power to declare
martial law subject to judicial inquiry? Is the question political or justiciable in character?
Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino hold that the question is political and therefore its
determination is beyond the jurisdiction of this Court. The reasons are given at length in the separate opinions they
have respectively signed. Justice Fernandez adds that as a member of the Convention that drafted the 1973
Constitution he believes that "the Convention put an imprimatur on the proposition that the validity of a martial law
proclamation and its continuation is political and non-justiciable in character."
Justice Barredo, on the other hand, believes that political questions are not per se beyond the Courts jurisdiction,
the judicial power vested in it by the Constitution being plenary and all-embracing, but that as a matter of policy
implicit in the Constitution itself the Court should abstain from interfering with the Executives Proclamation, dealing
as it does with national security, for which the responsibility is vested by the charter in him alone. But the Court
should act, Justice Barredo opines, when its abstention from acting would result in manifest and palpable
transgression of the Constitution proven by facts of judicial notice, no reception of evidence being contemplated for
purposes of such judicial action.
It may be noted that the postulate of non-justiciability as discussed in those opinions involves disparate methods of
approach. Justice Esguerra maintains that the findings of the President on the existence of the grounds for the
declaration of martial law are final and conclusive upon the Courts. He disagrees vehemently with the ruling
inLansang vs. Garcia, 42 SCRA 448, December 11, 1971, and advocates a return to Barcelon vs. Baker, 5 Phil. 87
(1905), and Montenegro vs. Castaeda, 91 Phil. 882 (1952). Justice Barredo, for his part, holds that Lansang need
not be overturned, indeed does not control in these cases. He draws a distinction between the power of the
President to suspend the privilege of the writ of habeas corpus, which was the issue in Lansang, and his power to
proclaim martial law, calling attention to the fact that while the Bill of Rights prohibits suspension of the privilege
except in the instances specified therein, it places no such prohibition or qualification with respect to the declaration
of martial law.
Justice Antonio, with whom Justices Makasiar, Fernandez and Aquino concur, finds that there is no dispute as to the
existence of a state of rebellion in the country, and on that premise emphasizes the factor of necessity for the
exercise by the President of his power under the Constitution to declare martial law, holding that the decision as to
whether or not there is such necessity is wholly confided to him and therefore is not subject to judicial inquiry, his
responsibility being directly to the people.
Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee and Muoz Palma. They hold that the
constitutional sufficiency of the proclamation may be inquired into by the Court, and would thus apply the principle
laid down in Lansang although that case refers to the power of the President to suspend the privilege of the writ
of habeas corpus. The recognition of justiciability accorded to the question in Lansang, it should be emphasized, is
there expressly distinguished from the power of judicial review in ordinary civil or criminal cases, and is limited to
ascertaining "merely whether he (the President) has gone beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the wisdom of his act." The test is not whether the Presidents
decision is correct but whether, in suspending the writ, he did or did not act arbitrarily. Applying this test, the finding
by the Justices just mentioned is that there was no arbitrariness in the Presidents proclamation of martial law
pursuant to the 1935 Constitution; and I concur with them in that finding. The factual bases for the suspension of the
privilege of the writ of habeas corpus, particularly in regard to the existence of a state of rebellion in the country, had
not disappeared, indeed had been exacerbated, as events shortly before said proclamation clearly demonstrated.
On this Point the Court is practically unanimous; Justice Teehankee merely refrained from discussing it.
Insofar as my own opinion is concerned the cleavage in the Court on the issue of justiciability is of not much more
than academic interest for purposes of arriving at a judgment. I am not unduly exercised by Americas decisions on
the subject written in another age and political clime, or by theories of foreign authors in political science. The
present state of martial law in the Philippines is peculiarly Filipino and fits into no traditional patterns or judicial
precedents.
In the first place I am convinced (as are the other Justices), without need of receiving evidence as in an ordinary
adversary court proceeding, that a state of rebellion existed in the country when Proclamation No. 1081 was issued.
It was a matter of contemporary history within the cognizance not only of the courts but of all observant people
residing here at the time. Many of the facts and events recited in detail in the different "Whereases" of the
proclamation are of common knowledge. The state of rebellion continues up to the present. The argument that while
armed hostilities go on in several provinces in Mindanao there are none in other regions except in isolated pockets
in Luzon, and that therefore there is no need to maintain martial law all over the country, ignores the sophisticated
nature and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes between
organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through
printed news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of
funds, procurement of arms and material, fifth-column activities including sabotage and intelligence all these are
part of the rebellion which by their nature are usually conducted far from the battle fronts. They cannot be
counteracted effectively unless recognized and dealt with in that context.
Secondly, my view, which coincides with that of other members of the Court as stated in their opinions, is that the
question of validity of Proclamation No. 1081 has been foreclosed by the transitory provision of the 1973
Constitution [Art. XVII, Sec. 3(2)] that "all proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of the land and shall remain valid, legal, binding
and effective even after ... the ratification of this Constitution ..." To be sure, there is an attempt in these cases to
resuscitate the issue of the effectivity of the new Constitution. All that, however, is behind us now. The question has
been laid to rest by our decision in Javellana vs. Executive Secretary (L-36142, 50 SCRA 30, March 31, 1973), and
of course by the existing political realities both in the conduct of national affairs and in our relations with other
countries.
On the effect of the transitory provision Justice Muoz Palma withholds her assent to any sweeping statement that
the same in effect validated, in the constitutional sense, all "such proclamations, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President." All that she concedes is that the transitory provision
merely gives them "the imprimatur of a law but not of a constitutional mandate," and as such therefore "are subject
to judicial review when proper under the Constitution.
Finally, the political-or-justiciable question controversy indeed, any inquiry by this Court in the present cases into the
constitutional sufficiency of the factual bases for the proclamation of martial law has become moot and
purposeless as a consequence of the general referendum of July 27-28, 1973. The question propounded to the
voters was: "Under the (1973) Constitution, the President, if he so desires, can continue in office beyond 1973. Do
you want President Marcos to continue beyond 1973 and finish the reforms he initiated under Martial Law?" The
overwhelming majority of those who cast their ballots, including citizens between 15 and 18 years, voted
affirmatively on the proposal. The question was thereby removed from the area of presidential power under the
Constitution and transferred to the seat of sovereignty itself. Whatever may be the nature of the exercise of that
power by the President in the beginning whether or not purely political and therefore non-justiciable this Court
is precluded from applying its judicial yardstick to the act of the sovereign.
2. With respect to the petitioners who have been released from detention but have not withdrawn their petitions
because they are still subject to certain restrictions,
5
the ruling of the Court is that the petitions should be dismissed.
The power to detain persons even without charges for acts related to the situation which justifies the proclamation of
martial law, such as the existence of a state of rebellion, necessarily implies the power (subject, in the opinion of the
Justices who consider Lansang applicable, to the same test of arbitrariness laid down therein), to impose upon the
released detainees conditions or restrictions which are germane to and necessary to carry out the purposes of the
proclamation. Justice Fernando, however, "is for easing the restrictions on the right to travel of petitioner Rodrigo" and
others similarly situated and so to this extent dissents from the ruling of the majority; while Justice Teehankee believes
that those restrictions do not constitute deprivation of physical liberty within the meaning of the constitutional provision on
the privilege of the writ ofhabeas corpus.
It need only be added that, to my mind, implicit in a state of martial law is the suspension of the said privilege with
respect to persons arrested or detained for acts related to the basic objective of the proclamation, which is to
suppress invasion, insurrection, or rebellion, or to safeguard public safety against imminent danger thereof. The
preservation of society and national survival take precedence. On this particular point, that is, that the proclamation
of martial law automatically suspends the privilege of the writ as to the persons referred to, the Court is practically
unanimous. Justice Fernando, however, says that to him that is still an open question; and Justice Muoz Palma
qualifiedly dissents from the majority in her separate opinion, but for the reasons she discusses therein votes for the
dismissal of the petitions.
IN VIEW OF ALL THE FOREGOING AND FOR THE REASONS STATED BY THE MEMBERS OF THE COURT IN
THEIR SEPARATE OPINIONS, JUDGMENT IS HEREBY RENDERED DISMISSING ALL THE PETITIONS,
EXCEPT THOSE WHICH HAVE BEEN PREVIOUSLY WITHDRAWN BY THE RESPECTIVE PETITIONERS WITH
THE APPROVAL OF THIS COURT, AS HEREINABOVE MENTIONED. NO COSTS.
Makasiar, Esguerra, Fernandez, Muoz Palma and Aquino, JJ., concur.
Prefatory Note
(written on September 12, 1974)
My separate opinion below in the nine cases at bar was handed to Chief Justice Querube C. Makalintal on Monday,
September 9, 1974, for promulgation (together with the individual opinions of the Chief Justice and the other
Justices) on September 12 (today) as agreed upon by the Court.
On September 11 the petitioner Jose W. Diokno was released from military custody. The implications of this
supervening event were lengthily discussed by the Court in its deliberations in the afternoon. Eleven members
thereafter voted to dismiss Dioknos petition as being "moot and academic;" I cast the lone dissenting vote. Although
perhaps in the strictest technical sense that accords with conventional legal wisdom, the petition has become "moot"
because Diokno has been freed from physical confinement, I am nonetheless persuaded that the grave issues of
law he has posed and the highly insulting and derogatory imputations made by him against the Court and its
members constitute an inescapable residue of questions of transcendental dimension to the entire nation and its
destiny and to the future of the Court questions that cannot and should not be allowed to remain unresolved and
unanswered.
I have thus not found it needful nor even advisable to recast my separate opinion or change a word of it.
I invite the reader to assess my 38-page separate opinion which immediately follows, in the light of the foregoing
context and factual setting.
FRED RUIZ CASTRO
Associate Justice.
SEPARATE OPINION
(written before Sept. 9, 1974)
L-35539, L-35546, L-35538, L-35540, L-35567, L-35556,
L-35571, L-35573, and L-35547
Separate Opinions
CASTRO, J .:
I
These nine cases are applications for writs of habeas corpus. The petitions aver in substance that on September 21,
1972 the President of the Philippines placed the country under martial law (Proclamation 1081); that on various
dates from September 22 to September 30, 1972, the petitioners or the persons in whose behalf the applications
were made were arrested by the military authorities and detained, some at Fort Bonifacio in Makati, Rizal, others at
Camp Aguinaldo and still others at Camp Crame, both in Quezon City; and that the arrest and detention of the
petitioners were illegal, having been effected without a valid order of a competent court of justice.
Writs of habeas corpuz were issued by the Court directing the respondents Secretary of National Defense, Chief of
Staff of the Armed Forces of the Philippines, and Chief of the Philippine Constabulary, to produce the bodies of the
petitioners in Court on designated dates and to make returns to the writs. In due time the respondents, through the
Solicitor General, filed their returns to the writs and answers to the petitions. Admitting that the petitioners had been
arrested and detained, the respondents nevertheless justified such arrest and detention as having been legally
ordered by the President of the Philippines pursuant to his proclamation of martial law, the petitioners being
regarded as participants or as having given aid and comfort "in the conspiracy to seize political and state power and
to take over the government by force." The respondents traversed the petitioners contention that their arrest and
detention were unconstitutional.
Hearings were held on September 26 and 29 and October 6, 1972, at which the petitioners were produced in Court.
Thereafter the parties filed memoranda.
Meanwhile, some of the petitioners, with leave of Court, withdrew their petitions;
1
others, without doing so, were
subsequently released from custody under certain restrictive conditions.
2
Enrique Voltaire Garcia II, the sole petitioner in
L-35547 and one of those released, having died shortly after his release, the action was deemed abated as to him.
As of this date only Jose W. Diokno, in whose behalf the petition in L-35539 was filed, and Benigno S. Aquino, Jr. in
L35546, are still in military custody.
On August 23, 1973 the petitioner Aquino filed an action for certiorari and prohibition with this Court alleging that on
August 11, 1973 charges of murder, subversion and illegal possession of firearms were filed against him with a
military commission; that his trial by the military court which was to be held on August 27, 29 and 31, 1973 was
illegal because the proclamation of martial law was unconstitutional; and that he could not expect a fair trial because
the President of the Philippines, having prejudged his case, could reverse any judgment of acquittal by the military
court and sentence him to death. That action, docketed as L-37364 and entitled "Benigno S. Aquino, Jr. vs. Military
Commission No. 2," is still pending consideration and decision.
On the other hand, Jose W. Diokno, on December 28, 1973, filed a motion to withdraw the petition filed in his behalf,
imputing delay in the disposition of his case, and asseverating that because of the decision of the Court in the
Ratification Cases
3
and the action of the members of the Court in taking an oath to support the new Constitution, he
cannot "reasonably expect to get justice in this case." The respondents oppose the motion on the grounds that there is a
public interest in the decision of these cases and that the reasons given for the motion to withdraw are untrue, unfair and
contemptuous.
II
The threshold question is whether to allow the withdrawal of the petition in
L-35539 filed in behalf of Diokno. In his letter to his counsel, which is the basis of the motion to withdraw, Diokno
states the following considerations: first, the delay in the disposition of his case; second, the dismissal of the
petitions in the Ratification Cases, contrary to the Courts ruling that the 1973 Constitution was not validly ratified;
and third, the action of the members of the Court in taking an oath of allegiance to the new Constitution. Diokno
asserts that "a conscience that allows a man to rot behind bars for more than one year and three months without
trial of course, without any charges at all is a conscience that has become stunted, if not stultified" and that "in
swearing to support the new Constitution, the five members of the Court who had held that it had not been validly
ratified, have not fulfilled our expectations." He goes on to say: "I do not blame them. I do not know what I would
have done in their place. But, at the same time, I can not continue to entrust my case to them; and I have become
thoroughly convinced that our quest for justice in my case is futile."
As already noted, the Solicitor General, in behalf of the respondents, opposes the withdrawal of the petition on the
ground of public interest, adding that the motion to withdraw cannot be granted by the Court without in effect
admitting the "unfair, untrue and contemptuous" statements contained therein.
Without passing on the liability of any party in this case for contemptuous statements made, the Court (by a vote of
5 to 7) denied the motion.
I voted for the denial of the motion to withdraw for inescapable reasons that I now proceed to expound.
The general rule is that in the absence of a statute expressly or impliedly prohibiting the withdrawal of an action, the
party bringing such action may dismiss it even without the consent of the defendant or respondent where the latter
will not be prejudiced, although it may be necessary to obtain leave of court. But there are recognized exceptions:
when the public interest or questions of public importance are involved.
5
For example, the fact that a final
determination of a question involved in an action is needed or will be useful as a guide for the conduct of public officers or
tribunals is a sufficient reason for retaining an action which would or should otherwise be dismissed. Likewise, appeals
may be retained if the questions involved are likely to arise frequently in the future unless they are settled by a court of
last resort.
Thus, in Gonzales vs. Commission on Elections,
6
an action for declaratory judgment impugning the validity of Republic
Act No. 4880 which prohibits the early nomination of candidates for elective offices and early election campaigns or
partisan political activities became moot by reason of the holding of the 1967 elections before decision could be rendered.
Nonetheless the Court treated the petition as one for prohibition and rendered judgment in view of "the paramount public
interest and the undeniable necessity for a ruling, the national elections [of 1969] being barely six months away.
In Krivenko vs. Register of Deeds,
7
the Court denied the petition to withdraw, an appeal in view of the public importance
of the questions involved, and lest "the constitutional mandate [proscribing the sale of lands to aliens] ... be ignored or
misconceived with all the harmful consequences ... upon the national economy."
The petitioner Diokno has made allegations to the effect that the President has "arrogated" unto himself the powers
of government by "usurping" the powers of Congress and "ousting" the courts of their jurisdiction, thus establishing
in this country a "virtual dictatorship." Diokno and his Counsel have in fact stressed that the present trend of events
in this country since the proclamation of martial law bears a resemblance to the trend of events that led to the
establishment of a dictatorship in Germany under Hitler. There is thus a profound public interest in the resolution of
the questions raised in the cases at bar, questions that, in the phrase of Chief Justice Marshall inMarbury vs.
Madison,
8
are "deeply interesting to the nation." I apprehend that in view of the import of the allegations made by Diokno
and his counsel, incalculable harm or, in the very least, great disservice may be caused to the national interest if these
cases are not decided on the merits. As the Solicitor General has observed," petitioners [Dioknos] arrest and detention
have been so exploited in the hate campaign that the only way to protect the integrity of the government is to insist on a
decision of this case in the forum in which the petitioner had chosen to bring them. Otherwise, like festering sores, the
issues stirred up by this litigation will continue to agitate the nation."
Prescinding from the policy considerations just discussed, I am gladdened that the Court has not shunted aside
what I regard as the inescapable moral constraints in the petitioner Dioknos motion to withdraw his petition
forhabeas corpus.
9
The Court repudiated the facile recourse of avoiding resolution of the issues on the pretext that
Diokno insists on withdrawing his petition. It is thus not a mere happenstance that, notwithstanding that seven members of
the Court are of the view that Diokno has an absolute right to withdraw his petition, the Court has confronted the issues
posed by him, and now resolves them squarely, definitively and courageously. No respectable legal historian or
responsible chronicler of the nations destiny will therefore have any reason to level the indictment that once upon a grave
national crisis the Court abdicated its constitutional prerogative of adjudication and forswore the sacred trust reposed in it
as the nations ultimate arbiter on transcendental, far-reaching justiciable questions.
With respect to the reasons given for the motion to withdraw, the Court is mindful that it has taken some time to
resolve these cases. In explanation let it be said that the issues presented for resolution in these cases are of the
utmost gravity and delicateness. No question of the awesome magnitude of those here presented has ever
confronted the Court in all its history. I am not aware that any other court, except possibly the Circuit Court in Ex
parte Merryman,
10
has decided like questions during the period of the emergency that called for the proclamation of
martial law.
But then in Merryman the Court there held that under the U.S. Federal Constitution the President did not have
power to suspend the privilege of the writ of habeas corpus. Otherwise, where the question involved not power but
rather the exercise of power, courts have declined to rule against the duly lasted. As Court Glendon Schubert noted,
the U.S. Supreme Court "was unwilling to [do so] until the war was over and Lincoln was dead."
Thus, in Ex parte Milligan,
11
the decision voiding the petitioners trial by a military court was not announced until
December 14, 1866, after the Civil War was over. The Civil War began on May 3, 1861 with the capture of Fort Sumter by
Confederate forces. Lambdin Milligan was charged before a military commission with aiding rebels, inciting insurrection,
disloyal practices and violation of the laws of war. His trial ran from September to December 1862; he was convicted on
October 21, 1864 and ordered executed on May 19, 1865. On May 10, 1865 he applied for a writ of habeas corpus from
the Circuit Court of Indianapolis. On May 11, Justice Davis and Judge McDonald certified that they differed in opinion and,
therefore, pursuant to the statute of 1802, elevated their questions to the Supreme Court. On June 3, 1865 the death
sentence was commuted to life imprisonment by President Johnson who had succeeded to the Presidency after the
assassination of Lincoln. The Supreme Court heard the parties arguments for eight days, on March 5, 6, 7, 8, 9, 12 and
13, and April 3, 1866. On December 14, 1866 the decision of the Supreme Court voiding Milligans trial was announced.
In In Re Moyer,
12
martial rule was proclaimed in Colorado on March 23, 1904. Application for a writ of habeas
corpus was filed with the State Supreme Court on April 14, 1904, seeking the release of Moyer who had been detained
under the Colorado governors proclamation. On June 6, 1904 the complaint was dismissed and the petitioner was
remanded to the custody of the military authorities. The Court held that as an incident to the proclamation of martial law,
the petitioners arrest and detention were lawful. Moyer subsequently brought an action for damages for his imprisonment
from March 30 to June 15, 1904. The complaint was dismissed by the Circuit Court. On writ of error, the U.S. Supreme
Court affirmed, holding that "So long as such arrests are made in good faith and in the honest belief that they are needed
in order to head the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of
office, on the ground that he had no reasonable ground for his belief."
13
Finally, in Duncan vs. Kahanamoku,
14
Hawaii was placed under martial rule on December 7, 1941, after the Japanese
sneak attack on Pearl Harbor. The petitioner Duncan was tried by a provost court on March 2, 1944, and found guilty on
April 13 of assault on two marine sentries. The other petitioner, White, was charged on August 25, 1942, also before a
provost court, with embezzling stocks belonging to another civilian. White and Duncan questioned the power of the
military tribunals in petitions for habeas corpus filed with the District Court of Hawaii on March 14 and April 14, 1944,
respectively. Writs were granted on May 2, 1944, and after trial the District Court held the military trials void and ordered
the release of Duncan and White. On October 24, 1944 the privilege of the writ of habeas corpus was restored and martial
law was terminated in Hawaii. On appeal, the decision of the District Court was reversed.
15
Certiorari was granted by the
U.S. Supreme Court on February 12, 1945. 16 On February 25, 1946 the Court held that the trials of White and Duncan
by the military tribunals were void.
In truth, as the Court in Milligan recognized, its decision could not have been made while the Civil War lasted.
Justice Davis wrote:
During the Wicked Rebellion, the temper of the times did not allow that calmness in deliberation and
discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of
safety were mingled with the exercise of power; and feelings and interests prevailed which are
happily terminated. Now that the public safety is assured, this question as well as all others, can be
discussed and decided without passion or the admixture of an clement not required to form a legal
judgment. We approached the investigation of this case fully sensible of the magnitude of the inquiry
and the of full and cautious deliberation.
17
No doubt there is a point, although controversial, in the observation that in the instances just examined a successful
challenge was possible only retroactively, after the cessation of the hostilities which would under any circumstances
have justified the judgment of the military.
18
Nor did it offend against principle or ethics for the members of this Court to take an oath to support the 1973
Constitution. After this Court declared that, with the dismissal of the petitions questioning the validity of the
ratification of the new Constitution, there was "no longer any judicial obstacle to the new Constitution being
considered in force and effect,"
19
it became the duty of the members of the Court, let alone all other government
functionaries, to take an oath to support the new Constitution. While it is true that a majority of six justices declared that
the 1973 Constitution was not validly ratified, it is equally true that a majority of six justices held that the issue of
its effectivitywas a political question, which the Court was not equipped to determine, depending as it did on factors for
which the judicial process was not fit to resolve. Resolution of this question was dispositive of all the issues presented in
the Ratification Cases. It thus became untenable for the members of the Court who held contrary opinions to press their
opposition beyond the decision of those cases. Fundamental respect for the rule of law dictated that the members of the
Court take an oath to uphold the new Constitution. There is nothing in that solemn oath that debases their individual
personal integrity or renders them unworthy or incapable of doing justice in these cases. Nor did the environmental milieu
of their adjuration in any manner demean their high offices or detract from the legitimacy of the Court as the highest
judicial collegium of the land.
III
From its Anglo-Saxon origin and throughout its slow evolution, the concept, scope and boundaries, application,
limitations and other facets of martial law have been the subject of misunderstanding, controversy and debate.
20
To
the legal scholar interested in set legal principles and precise distinctions, martial law could be a frustrating subject. On
the matter of its definition alone, it is known to have as many definitions as there are numerous authors and court decision
s (not to discount the dissenting opinions) on the subject. The doctrinal development of martial law has relied mainly on
case law,
21
and there have been relatively few truly distinctive types of occasions where martial law, being the
extraordinary remedy that it is, has been resorted to.
In the Philippines, the only other notable instance when martial law was declared was on September 22, 1944, per
Proclamation No. 29 promulgated by President Jose P. Laurel. But this was pursuant to the constitution of the short-
lived Japanese Occupation Republic, and the event has not been known to be productive of any jurisprudential
pronouncements emanating from the high court of the land.
Notwithstanding the confused state of jurisprudence on the subject of martial law in England and in the United
States, and, consequently, in the Philippines, a useful knowledge of the law on the subject can fairly be had from a
study of its historical background and its rationale, its doctrinal development, applicable constitutional and statutory
provisions, and authoritative court decisions and commentaries.
Legal scholars trace the genesis of martial law to England starting from the age of the Tudors and the Stuarts in the
14th century when it was first utilized for the suppression of rebellions and disorders. It later came to be employed in
the British colonies and dominions where its frequent exercise against British subjects gave rise to the criticism that
it was being exploited as a weapon to enhance British imperialism.
22
In the United States, martial law was declared on numerous occasions from the revolutionary period to the Civil
War, and after the turn of the century. One of the earliest instances in American history was the declaration of
martial law by Gen. Andrew Jackson before the Battle of New Orleans in 1814. Fearing that the New Orleans
legislature might capitulate to the British, he placed the State under "strict martial law" and forbade the State
legislature to convene. Martial law was lifted after the American victory over British arms. The Civil War period saw
the declaration of martial law on many occasions by both the Confederate and the Union authorities. It has also
been resorted to in cases of insurrection and rebellion, as exemplified by the Whiskey rebellion (1794 in
Pennsylvania and Virginia) and the Dorrs rebellion (1842 in Rhode Island). Martial law has also been utilized during
periods of disaster, such as the San Francisco earthquake and fire of 1906, and in industrial disputes involving
violence and disorder. It has likewise been variously instituted to police elections, to take charge of ticket sales at a
football game, to prevent the foreclosure of mortgages to close a race track. In an extreme case, the governor of
Georgia proclaimed martial law around a government building to exclude from its premises a public official whom he
was enjoined from removing.
23
At the close of the World War I, the term "martial law" was erroneously employed to refer to the law administered in
enemy territory occupied by the allied forces pending the armistice . 21 William Winthrop states that the earlier
confusion regarding the concept of martial law, resulting partly from the wrong definition of the term by the Duke of
Wellington who had said that "it is nothing more nor less than the will of the general," had misled even the Supreme
Court of the United States.
25
In the leading case of Ex Parte Milligan,
26
however, Chief Justice Chase, in his dissenting
opinion, clarified and laid down the classic distinctions between the types of military jurisdiction in relation to the terms
"martial law," "military law" and "military government," which to a great extent cleared the confusion in the application of
these terms.
These distinctions were later incorporated in the Manual for Courts-Martial of the United States Army,
27
after which
the Manual for Courts-Martial of the Armed Forces of the Philippines, promulgated on December 17, 1938 pursuant to
Executive Order No. 178, was patterned. In essence, these distinctions are as follows:
a. Military jurisdiction in relation to the term military law is that exercised by a government "in the
execution of that branch of its municipal law which regulates its military establishment." (In the U.S.
and the Philippines, this refers principally to the statutes which embody the rules of conduct and
discipline of members of their respective armed forces. In the Philippines we have for this purpose
Commonwealth Act No. 408, as amended, otherwise known as "The Article of War").
b. Military jurisdiction in relation to the term martial law is that exercised in time of rebellion and civil
war by a government temporarily governing the civil population of a locality through its military
forces, without the authority of written law, as necessity may require.
28
c. Military jurisdiction in relation to the term military government is that "exercised by a belligerent
occupying an enemys territory."
29
(A familiar example of a military government was, of course, that
established and administered by the Japanese armed forces in the Philippines from 1942 to 1945).
What is the universally accepted fundamental justification of martial law? Wiener in A Practical Manual Martial
Law,
30
ventures this justification: "Martial Law is the public law of necessity. Necessity calls it forth, necessity justifies its
existence, and necessity measures the extent and degree to which it may be employed."
Martial law is founded upon the principle that the state has a right to protect itself against those who would destroy
it, and has therefore been likened to the right of the individual to self-defense.
31
It is invoked as an extreme measure,
and rests upon the basic principle that every state has the power of self-preservation, a power inherent in all states,
because neither the state nor society would exist without it.
32
IV
I now proceed to discuss the issues posed in these cases.
In Proclamation 1081, dated September 21, 1972, the President of the Philippines declared that lawless elements,
supported by a foreign power, were in "armed insurrection and rebellion against the Government of the Philippines
in order to forcibly seize political and state power, overthrow the duly constituted government and supplant our
existing political, social, economic and legal order with an entirely new one ... based on the Marxist-Leninist-Maoist
teachings and beliefs." He enumerated many and varied acts of violence committed in pursuance of the insurrection
and rebellion. He therefore placed the Philippines under martial law, commanded the armed forces to suppress the
insurrection and rebellion, enforce obedience to his decrees, orders and regulations, and arrest and detain those
engaged in the insurrection and rebellion or in other crimes "in furtherance or on the occasion thereof, or incident
thereto or in connection therewith." The President invoked his powers under article VII section 10(2) of the 1935
Constitution "to save the Republic and reform our society."
33
By General Order No. 2 the President directed the Secretary of National Defense to "forthwith arrest or cause the
arrest ... the individuals named in the attached lists for being participants or for having given aid and comfort in the
conspiracy to seize political and state power in the country and to take over the government by force ... in order to
prevent them from further committing acts that are inimical or injurious ..." The Secretary was directed to hold in
custody the individuals so arrested "until otherwise so ordered by me or by my duly designated representative." The
arrest and detention of the petitioners in these cases appear to have been made pursuant to this order.
I cannot blink away the stark fact of a continuing Communist rebellion in the Philippines. The Court has repeatedly
taken cognizance of this fact in several eases decided by it. In 1971, in Lansang vs. Garcia,
34
the Court, after
reviewing the history of the Communist movement in the country since the 1930s, concluded: "We entertain, therefore, no
doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and
have thus been and still are engaged in rebellion against the Government of the Philippines." It affirmed this finding in
1972 35 in sustaining the validity of the Anti-Subversion Act (Republic Act 1700). The Act is itself a congressional
recognition and acute awareness of the continuing threat of Communist subversion to democratic institutions in this
country. Enacted in 1957, it has remained in the statute books despite periodic agitation in many quarters for its total
excision.
At times the rebellion required no more than ordinary police action, coupled with criminal prosecutions. Thus the
1932 Communist trials resulted in the conviction of the well-known Communists of the day: Crisanto Evangelista,
Jacinto G. Manahan, Dominador J. Ambrosio, Guillermo Capadocia, Ignacio Nabong and Juan Feleo, among
others, for crimes ranging from illegal association to rebellion and sedition.
36
The end of World War II saw the resurgence of the Communist rebellion. Now with an army forged out of the former
Hukbalahaps (the armed resistance against the Japanese) and renamed Hukbong Mapagpalaya ng Bayanor HMB,
the threat to the security of the state became so malevolent that on October 22, 1950, President Elpidio Quirino was
impelled to suspend the privilege of the writ of habeas corpus. This enabled the Government to effect the
apprehension of top Communist Party leaders Guillermo Capadocia, Flavio Nava, Amado V. Hernandez, Jesus
Lava, Jose Lava, Angel Baking and Simeon Rodriguez, among others.
37
When challenged by one of those detained
under the Presidential proclamation the suspension of the privilege of the writ of habeas corpus was sustained by the
Court.
38
The beginning of the 1970s was marked by the rise of student activism. This phenomenon swept around the globe,
and did not spare our own colleges and universities. Soon the campuses became staging grounds for student
demonstrations that generally ended in bloody and not infrequently lethal street riots.
In Navarro vs. Villegas,
39
in upholding the power of the Mayor of Manila to determine the place and time for the holding
of public assemblies, this Court noted
That experiences in connection with present assemblies and demonstrations do not warrant the
Courts disbelieving respondent Mayors appraisal that a public rally at Plaza Miranda, as compared
to one at the Sunken Gardens as he suggested, poses a clearer and more imminent danger of
public disorders, breaches of the peace, criminal acts, and even bloodshed as an aftermath of such
assemblies, and petitioner has manifested that it has no means of preventing such disorders;
That, consequently, every time that such assemblies are announced, the community is placed in
such a state of fear and tension that offices are closed early and employees dismissed storefronts
boarded up, classes suspended, and transportation disrupted to the general detriment of the public.
Riding on the crest of student unrest, the Communist rebellion gained momentum. As the Court noted in Lansang
vs. Garcia,
40
[T]he reorganized Communist Party of the Philippines has, moreover, adopted Maos concept of
protracted peoples war, aimed at the paralyzation of the will to resist of the government, of the
political, economic and intellectual leadership, and of the people themselves; that conformably to
such concept the Party has placed special emphasis upon most extensive and intensive program of
subversion by the establishment of front organizations in urban centers, the organization of armed
city partisans and the infiltration in student groups, labor unions, and farmer and professional
groups; that the CPP has managed to infiltrate or establish and control nine (9) major labor
organizations; that it has exploited the youth movement and succeeded in making Communist fronts
of eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30)
mass organizations actively advancing the CPP interests, among which are the Malayang Samahan
ng Magsasaka (MASAKA) the Kabataang Makabayan (KM), the Movement for the Advancement of
Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM),
and the Malayang Pagkakaisa ng Kabataang Pilipino (MPKP); that, as of August, 1971, the KM had
two hundred forty-five (245) operational chapters throughout the Philippines, of which seventy-three
(73) were in the Greater Manila Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon,
forty-two (42) in the Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had
recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-three i33) ended
in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these
actions were organized, coordinated or led by the aforementioned front organizations; that the
violent demonstrations were generally instigated by a small, but well-trained group of armed
agitators; that the number of demonstrations heretofore staked in 1971 has already exceeded those
in 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of
fifteen (15) persons and the injury of many more.
The mounting level of violence necessitated the suspension, for the second time, of the privilege of the writ
ofhabeas corpus on August 21, 1971. The Governments action was questioned in Lansang vs. Garcia. This Court
found that the intensification and spread of Communist insurgency imperiled the state. The events after the
suspension of the privilege of the writ confirmed the alarming extent of the danger to public safety:
Subsequent events as reported have also proven that petitioners counsel have
underestimated the threat to public safety posed by the New Peoples Army. Indeed, it appears
that, since August 21, 1971, it had in Northern Luzon six (6) encounters and staged one (1) raid, in
consequence of which seven (7) soldiers lost their lives and two (2) others were wounded, whereas
the insurgents suffered five (5) casualties; that on August 26, 1971, a well-armed group of NPA,
trained by defector Lt. Victor Corpus, attacked the very command post of TF LAWIN in Isabela,
destroying two (2) helicopters and one (1) plane, and wounding one (1) soldier; that the NPA had in
Central Luzon a total of four (4) encounters, with two (2) killed and three (3) wounded on the side of
the Government, one (1) KM-SDK leader, an unidentified dissident, and Commander Panchito,
leader of dissident group, were killed; that on August 26, 1971, there was an encounter in the Barrio
of San Pedro, Iriga City, Camarines Sur, between the PC and the NPA, in which a PC and two (2)
KM members were killed; that the current disturbances in Cotabato and the Lanao provinces have
been rendered more complex by the involvement of the CPP/NPA for, in mid-1971, a KM group
headed by Jovencio Esparagoza, contacted the Higa-onan tribes, in their settlement in Magsaysay,
Misamis Oriental, and offered them books, pamphlets and brochures of Mao Tse Tung, as well as
conducted teach-ins in the reservation; that Esparagoza was reportedly killed on September 22,
1971, in an operation of the PC in said reservation; and that there are now two (2) NPA cadres in
Mindanao.
It should, also, be noted that adherents of the CPP and its front organization are accordingly to
intelligence findings, definitely capable of preparing powerful explosives out of locally available
materials; that the bomb used in the Constitutional Convention Hall was a clay more mine, a
powerful explosive device used by the U.S. Arm believed to have been one of many pilfered from the
Subic Naval Base a few days before; that the President had received intelligence information to the
effect that there was a July-August Plan involving a wave of assassinations, kidnappings, terrorism
and miss destruction of property and that an extraordinary occurrence would signal the beginning of
said event; that the rather serious condition of peace and order in Mindanao, particularly in Cotabato
and Lanao, demanded the presence therein of forces sufficient to cope with the situation; that a
sizeable part of our armed forces discharges other functions; and that the expansion of the CPP
activities from Central Luzon to other parts of the country particularly Manila and its suburbs the
Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and Bicol Region, required that the rest of our
armed forces be spread thin over a wide area.
41
By virtue of these findings, the Court, led by Chief Justice Roberto Concepcion, unanimously upheld the suspension
of the privilege of the writ of habeas corpus. The Court said:
Considering that the President was in possession of the above data except those related to
events that happened after August 21, 1971 when the Plaza Miranda prompting, took place, the
Court is not prepared to held that the Executive had acted arbitrarily or gravely abused his discretion
when he then concluded that public safety and national security required the suspension of the
privilege of the writ, particularly if the NPA were to strike simultaneously with violent demonstrations
staged by the two hundred forty-five (245) KM chapters, all over the Philippines, with the assistance
and cooperation of the dozens of CPP front organizations, and the bombing of water mains and
conduits, as well as electric power plants and installations a possibility which, no matter how
remote, he was bound to forestall, and a danger he was under obligation to anticipate and at rest.
He had consulted his advisers and sought their views. He had reason to feel that the situation was
critical as, indeed, it was and demanded immediate action. This he took believing in good faith
that public safety required it. And, in the light of the circumstances adverted to above, he had
substantial grounds to entertain such belief."
42
The suspension of the privilege of the writ was lifted on January 7, 1972, but soon thereafter chaos engulfed the
nation again. A large area of the country was in open rebellion. The authority of the Government was frontally
challenged by a coalition of forces. It was against this backdrop of violence and anarchy that martial law was
proclaimed on September 21, 1972.
Personally I take notice of this condition, in addition to what the Court has found in cases that have come to it for
decision, and there is no cogent reason for me to say as a matter of law that the President exceeded his powers in
declaring martial law. Nor do I believe that the Solicitor Generals manifestation of May 13, 1974 to the effect that
while on the whole the military challenge to the Republic has been overcome there are still large areas of conflict
which warrant the continued imposition of law, can be satisfactorily controverted by or by any perceptive observer of
the national scene.
As I will point out in this opinion, the fact that courts are open be accepted as proof that the rebellion and which
compellingly called for the declaration of martial law, no longer imperil the public safety. Nor are the many surface
indicia adverted to by the petitioners (the increase in the number of tourists, the choice of Manila as the conferences
and of an international beauty contest) to be regarded as evidence that the threat to public safe has abated. There is
actual armed combat, attended by the somber panoply war, raging in Sulu and Cotabato, not to not mention the
region and Cagayan Valley.
43
I am hard put to say, therefore, that the Governments claim is baseless.
I am not insensitive to the plea made here in the name of individual liberty. But to paraphrase Ex parte Moyer,
44
if it
were the liberty alone of the petitioner Diokno that is. in issue we would probably resolve the doubt in his favor and grant
his application. But the Solicitor General, who must be deemed to represent the President and the Executive Department
in this case,
45
has manifested that in the Presidents judgment peace and tranquility cannot be speedily restored in the
country unless the petitioners and others like them meantime remain in military custody. For, indeed, the central matter
involved is not merely the liberty of isolated individuals, but the collective peace, tranquility and security of the entire
nation. V.
The 1935 Constitution committed to the President the determination of the public exigency or exigencies requiring
the proclamation of martial law. It provided in article VII, section 10(2) that
The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence,
46
invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or eminent
danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas
corpus, or place the Philippines or any part thereof under martial law.
47
In the 1934 Constitutional Convention it was proposed to vest the power to suspend the privilege of the writ
ofhabeas corpus in the National Assembly. The proposal, sponsored by Delegate Araneta, would give this power to
the President only in cases where the Assembly was not in session and then only with the consent of the Supreme
Court. But the majority of the delegates entertained the fear that the Government would be powerless in the face of
danger.
48
They rejected the Araneta proposal and adopted instead the provisions of the Jones Law of 1916. The framers
of the Constitution realized the need for a strong Executive, and therefore chose to retain the provisions of the former
organic acts,
49
which, adapted to the exigencies of colonial administration , naturally made the Governor General a strong
Executive.
Construing a similar provision of the Philippine Bill of 1902 which authorized the Governor General, with the
approval of the Philippine Commission, to suspend the privilege of the writ of habeas corpus "when in cases of
rebellion, insurrection, or invasion the public safety may require it," this Court held that the Governor Generals
finding as to the necessity for such action was "conclusive and final" on the judicial department.
50
This ruling was
affirmed in 1952 in Montenegro vs. Castaeda,
51
this Court stating that
the authority to decide whether the exigency has arisen requiring, the suspension belongs to the
President and his decision is final and conclusive upon the courts and upon all other persons.
It is true that in Lansang vs. Garcia
52
there is language that appears to detract from the uniform course of judicial
construction of the Commander-in-Chief Clause. But a close reading of the opinion in that case shows that in the main
there was adherence to precedents. To be sure, the Court there asserted the power to inquire into the "existence of the
factual bases [for the suspension of the privilege of the writ of habeas corpus] in order to determine the sufficiency
thereof," But this broad assertion of power is qualified by the Courts unambiguous statement that "the function of the
Court is, merely to check not to supplant the Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act." For
this reason this Court announced that the test was not whether the President acted correctly but whether he acted
arbitrarily. In fact this Court readBarcelon and Montenegro as authorizing judicial inquiry into "whether or not there really
was a rebellion, as stated in the proclamation therein contested."
Of course the judicial department can determine the existence of the conditions for the exercise of the Presidents
powers and is not bound by the recitals of his proclamation. But whether in the circumstances obtaining public
safety requires the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law is
initially for the President to decide. Considerations of commitment of the power to the executive branch of the
Government and the lack of accepted standards for dealing with incommensurable factors, suggest the wisdom of
considering the Presidents finding as to necessity persuasive upon the courts. This conclusion results from the
nature of the power vested in the President and from the evident object contemplated. For that power is intended to
enable the Government to cope with sudden emergencies and meet great occasions of state under circumstances
that may be crucial to the life of the nation.
53
The fact that courts are open and in the unobstructed discharge of their functions is pointed to as proof of the
absence of any justification for martial law. The ruling in Milligan
54
and Duncan
55
is invoked. In both cases the U.S.
Supreme Court reversed convictions by military commissions. In Milligan the Court stated that "martial law cannot arise
from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the
courts and deposes the civil administration." In Duncan a similar expression was made: "The phrase martial law ... while
intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense
of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by
military tribunals."
But Milligan and Duncan were decided on the basis of a widely disparate constitutional provision. What is more, to
the extent that they may be regarded as embodying what the petitioners call an "open court" theory, they are of
doubtful applicability in the context of present-day subversion.
Unlike the detailed provision of our Constitution, the U.S. Federal Constitution does not explicitly authorize the U.S.
President to proclaim martial law. It simply states in its article II, section 2 that "the President shall be Commander-
in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the
actual Service of the United States. ..." On the other hand, our Constitution authorizes the proclamation of martial
law in cases not only of actual invasion, insurrection or rebellion but also of "imminent danger" thereof.
It is true that in Duncan the U.S. Supreme Court dealt with a U.S. statute that in terms was similar to the Philippine
Constitution. Section 67 of the Hawaiian Organic Act provided that "[the Territorial Governor] may, in case of
invasion, or imminent danger thereof, when public safety requires it, suspend the privilege of the writ of habeas
corpus, or place the Territory, or any part thereof under martial law until communication can be had with the
President [of the United States] and his decision thereof made known." In fact the Hawaiian Organic Act, that of
Puerto Rico, and the Jones law of 1916, from which latter law, as I have earlier noted, the Commander-in-Chief
Clause of our Constitution was adopted, were part of the legislation of the U.S. Congress during the colonial period.
But again, unlike the Jones Law, the Hawaiian Organic Act also provided in its section 5 that the U.S. Federal
Constitution "shall have the same force and effect in the territory [of Hawaii] as elsewhere in the United States. For
this reason it was held in Duncan that "imminent danger" of invasion or rebellion was not a ground for authorizing
the trial of civilians by a military tribunal. Had Duncan been decided solely on the basis of section 67 of the Hawaiian
Organic Act and had the petitioners in that case been tried for offenses connected with the prosecution of the
war,
56
the prison sentences imposed by the military tribunals would in all probability had been upheld. As a matter of fact
those who argued in Duncan that the power of the Hawaiian governor to proclaim martial law comprehended not only
actual rebellion or invasion but also "imminent danger thereof" were faced with the problem of reconciling, the two parts of
the Hawaiian Organic Act. They contended that "if any paint of section 67 would otherwise be unconstitutional section 5
must be construed as extending the [U.S.] Constitution to Hawaii subject to the qualifications or limitations contained in
section 67."
57
Forsooth, if the power to proclaim martial law is at all recognized in American federal constitutional law, it is only by
implication from the necessity of self-preservation and then subject to the narrowest possible construction.
Nor is there any State Constitution in the United States, as the appended list indicates (see Appendix), which in
scope and explicitness can compare with the Commander-in-Chief Clause of our Constitution. The Alaska
Constitution, for example, authorizes the governor to proclaim martial law when the public safety requires it in case
of rebellion or actual or imminent invasion. But even then it also provides that martial law shall not last longer than
twenty days unless approved by a majority of the legislature in joint session. On the other hand, the present
Constitution of Hawaii does not grant to the State governor the power to suspend the writ of habeas corpus or to
proclaim martial law as did its Organic Act before its admission as a State to the American Union.
An uncritical reading of Milligan and Duncan is likely to overlook these crucial differences in textual concepts
between the Philippine Constitution, on the one hand, and the Federal and State Constitutions of the United States,
on the other. In our case then the inclusion of the "imminent danger" phrase as a ground for the suspension of the
privilege of the writ of habeas corpus and for the proclamation of martial law was a matter of deliberate choice and
renders the language of Milligan ("martial law cannot arise from a threatened invasion") inapposite and therefore
inapplicable.
The Philippine Bill of 1902 provided in its section 2, paragraph 7
that the privilege of the writ of habeas corpus shall not be suspended unless when in cases of
rebellion, insurrection, or invasion the public safety may require it, in either of which events the same
may be suspended by the President, or by the Governor General with the approval of the Philippine
Commission, wherever during such period the necessity for such suspension shall exist.
The Jones Law of 1916 substantially reenacted this provision. Thus section 3, paragraph 7 thereof provided:
That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of
rebellion, insurrection, or invasion the public safety may require it, in either of which events the same
may be suspended by the President or by the Governor General, wherever during such period the
necessity for such suspension shall exist.
In addition, the Jones Law provided in its section 21 that
... [The Governor General] may, in case of rebellion or invasion, or imminent danger thereof, when
the public safety requires it, suspend the privileges of the writ of habeas corpus or place the Islands,
or any part thereof, under martial law: Provided That whenever the Governor General shall exercise
this authority, he shall at once notify the President of the United States thereof, together with the
attending facts and circumstances, and the President shall have power to modify or vacate the
action of the Governor General.
Note that with respect to the suspension of the privilege of the writ of habeas corpus, section 21 mentions, as
ground therefor, "imminent danger" of invasion or rebellion. When the Constitution was drafted in 1934, its framers,
as I have already noted, decided to adopt these provisions of the Jones Law. What was section 3, paragraph 7, in
the Jones Law became section 1(14) of article III (Bill of Rights) of the Constitution; and what was section 21
became article VII, section 10(2) (Commander-in-Chief Clause). Thus, the Bill of Rights provision reads:
The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion,
insurrection, or rebellion, when the public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for such suspension shall exist.
On the other hand, the Commander-in-Chief Clause states:
The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence,
invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger
thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas
corpus, or place the Philippines or any part thereof under martial law.
The attention of the 1934 Convention was drawn to the apparent inconsistency between the Bill of Rights provision
and the Commander-in-Chief Clause. Some delegates tried to harmonize the two provisions by inserting the phrase
"imminent danger thereof" in the Bill of Rights provision, but on reconsideration the Convention deleted the phrase
from the draft of the Bill of Rights provision, at the same time retaining it in the Commander-in Chief Clause.
When this apparent inconsistency was raised in a suit
58
questioning the validity of President Quirino suspension of the
privilege of the writ of habeas corpus, this Court sustained the Presidents power to suspend the privilege of the writ even
on the ground of imminent danger of invasion, insurrection or rebellion. It held that as the Commander-in-Chief Clause
was last in the order of time and local position it should be deemed controlling. This rationalization has evoked the
criticism that the Constitution was approved as a whole and not in parts, but in result the decision in that case is certainly
consistent with the conception of a strong Executive to which the 1934 Constitutional Convention was committed.
The 1973 Constitution likewise authorizes the suspension of the privilege of the writ of habeas corpus on the ground
of imminent danger of invasion, insurrection and rebellion.
The so-called "open court" theory does not apply to the Philippine situation because our 1935 and 1973
Constitutions expressly authorize the declaration of martial law even where the danger to public safety arises merely
from the imminence of invasion, insurrection, or rebellion. Moreover, the theory is too simplistic for our day,what with
the universally recognized insidious nature of Communist subversion and its covert operations.
Indeed the theory has been dismissed as unrealistic by perceptive students of Presidential powers.
Charles Fairman says:
These measures are unprecedented but so is the danger that called them into being. Of course we
are not without law, even in time of crisis. Yet the cases to which one is cited in the digests disclose
such confusion of doctrine as to perplex a lawyer who suddenly tries to find his bearings. Hasty
recollection of Ex parte Milligan recalls the dictum that Martial rule cannot arise from a threatened
invasion. The necessity must be actual and present; the invasion real, such as effectually closes the
courts and deposes the civil administration. Not even the aerial attack upon Pearl Harbor closed the
courts or of its own force deposed the civil administration; yet it would be the common understanding
of men that those agencies which are charged with the national defense surely must have authority
to take on the spot some measures which in normal times would be ultra vires. And whilst college
sophomores are taught that the case stands as a constitutional landmark, the hard fact is that of late
governors have frequently declared martial law and war and have been judicially sustained in their
measures. Undoubtedly, many of these cases involving the suspension of strikers went much too
far. But just as certainly so it will be argued here the doctrine of the majority in Ex
parte Milligandoes not go far enough to meet the conditions of modern war.
59
Clinton Rossiter writes:
It is simply not true that martial law cannot arise from a threatened invasion, or that martial rule can
never exist where the courts are open. These statements do not present an accurate definition of
the allowable limits of the martial powers of the President and Congress in the face of alien threats
of internal disorder. Nor was Davis dictum on the specific power of Congress in this matter any more
accurate. And, however eloquent quotable his words on the untouchability of the Constitution in time
of actual crisis, and did not then, express the realities of American constitutional law.
60
William Winthrop makes these thoughtful observations:
It has been declared by the Supreme Court in Ex parte Milligan that martial law is confined to the
locality of actual war, and also that it can never exist when the courts are open and in the proper
and unobstructed exercise of their jurisdiction. But this ruling was made by a bare majority five
of the court, at a time of great political excitement and the opinion of the four other members, as
delivered by the Chief Justice, was to the effect that martial law is not necessarily limited to time of
war, but may be exercised at other periods of public danger, and that the fact that the civil courts
are open is not controlling against such exercise, since they might be open and undisturbed in the
execution of their functions and yet wholly incompetent to avert threatened danger or to punish with
adequate promptitude and certainty the guilty. It is the opinion of the author that the of the view of
the minority of the court is the sounder and more reasonable one, and that the dictum of the majority
was influenced by a confusing of martial law proper with that military government which exists only
at a time and on the theater of war, and which was clearly distinguished from martial law by the
Chief Justice in the dissenting opinion the first complete judicial definition of the
subject.
61
(emphasis supplied)
In Queen vs. Bekker (on the occasion of the Boer War) Justice Maasdorp categorically affirmed that "the existence
of civil courts is no proof that martial law has become unnecessary.
62
VI
Given then the validity of the proclamation of martial law, the arrest and detention of those reasonably believed to be
engaged in the disorder or in formenting it is well nigh beyond questioning. Negate the power to make such arrest
and detention, and martial law would be "mere parade, and rather encourage attack than repel it."
63
Thus, in Moyer
vs. Peabody,
64
the Court sustained the authority of a State governor to hold temporarily in custody one whom he believed
to be engaged in formenting trouble, and denied recovery against the governor for the imprisonment. It was said that, as
the governor "may kill persons who resist," he may use the milder measure of seizing the bodies of those whom he
considers in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to
prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are
needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he
is out of office on the ground that he had no reasonable ground for his belief."
It is true that in Sterling vs. Contantin
65
the same Court set aside the action of a State governor taken under martial law.
But the decision in that case rested on the ground that the action set aside had no direct relation to the quelling of the
uprising. There the governor of Texas issued a proclamation stating that certain counties were in a state of insurrection
and declaring martial law in that territory. The proclamation recited that there was an organized group of oil and gas
producers in insurrection against conservation laws of the State and that this condition had brought such a state of public
feeling that if the State government could not protect the publics interest they would take the law into their own hands.
The proclamation further recited that it was necessary that the Railroad Commission be given time to make orders
regarding oil production. When the Commission issued an order limiting oil production, the complainants brought suit iii
the District Court which issued restraining orders, whereupon Governor Sterling ordered General Wolters of the Texas
National Guards to enforce a limit on oil production. It was this order of the State governor that the District Court enjoined.
On appeal the U.S. Supreme Court affirmed. After assuming that the governor had the power to declare martial law, the
Court held that the order restricting oil production was not justified by the exigencies of the situation.
... Fundamentally, the question here is not the power of the governor to proclaim that a state of
insurrection, or tumult or riot, or breach of the peace exists, and that it is necessary to call military
force to the aid of the civil power. Nor does the question relate to the quelling of disturbance and the
overcoming of unlawful resistance to civil authority. The question before us is simply with respect to
the Governors attempt to regulate by executive order the lawful use of complainants properties in
the production of oil. Instead of affording them protection in the exercise of their rights as determined
by the courts, he sought, by his executive orders, to make that exercise impossible.
On the other hand, what is involved here is the validity of the detention order under which the petitioners were
ordered arrested. Such order is, as I have already stated, a valid incident of martial law. With respect to such
question Constantin held that "measures, conceived in good faith, in the face of the emergency and directly related
to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the
exercise of his authority to maintain peace."
In the cases at bar, the respondents have justified the arrest and detention of the petitioners on the ground of
reasonable belief in their complicity in the rebellion and insurrection. Except Diokno and Aquino, all the petitioners
have been released from custody, although subject to defined restrictions regarding personal movement and
expression of views. As the danger to public safety has not abated, I cannot say that the continued detention of
Diokno and Aquino and the restrictions on the personal freedoms of the other petitioners are arbitrary, just as I am
not prepared to say that the continued imposition of martial rule is unjustified.
As the Colorado Supreme Court stated in denying the writ of habeas corpus in Moyer:
66
His arrest and detention in such circumstances are merely to prevent him from taking part or aiding
in a continuation of the conditions which the governor, in the discharge of his official duties and in
the exercise of the authority conferred by law, is endeavoring to suppress.
VII
While courts may inquire into or take judicial notice of the existence of conditions claimed to justify the exercise of
the power to declare martial law,
67
the determination of the necessity for the exercise of such power is within the
periphery of the constitutional domain of the President; and as long as the measures he takes are reasonably related to
the occasion involved, interference by the courts is officious.
I am confirmed in this construction of Presidential powers by the consensus of the 1971 Constitutional Convention to
strengthen the concept of a strong Executive and by the confirmation of the validity of acts taken or done after the
proclamation of martial law in this country. The 1973 Constitution expressly authorizes the suspension of the
privilege of the writ of habeas corpus as well as the imposition of martial law not only on the occasion of actual
invasion, insurrection or rebellion, but also where the danger thereof is imminent. 68 Acrimonious discussion on this
matter has thus become pointless and should therefore cease.
The new Constitution as well provides that
All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and
effective even after lifting of martial law or the ratification of this constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of
the incumbent President, or unless expressly aid explicitly modified or repealed by the regular
National Assembly.
69
The effectivity of the new Constitution is now beyond all manner of debate in view of the Courts decision in the
Ratification Cases 70 as well as the demonstrated acquiescence therein by the Filipino people in the historic July
1973 national referendum.
VIII
It is thus evident that suspension of the privilege of the writ of habeas corpus is unavoidable subsumed in a
declaration of martial law, since one basic objective of martial rule is to neutralize effectively by arrest and
continued detention (and possibly trial at the proper and opportune time) those who are reasonably believed to
be in complicity or are particeps criminis in the insurrection or rebellion. That this is so and should be so is
ineluctable to deny this postulate is to negate the very fundamental of martial law: the preservation of society and
the survival of the state. To recognize the imperativeness and reality of martial law and at the same time dissipate
its efficacy by withdrawing from its ambit the suspension of the privilege of the writ of habeas corpus is a proposition
I regard as fatuous and therefore repudiate.
Invasion and insurrection, both of them conditions of violence, are the factual prerequisites of martial
law ... The rights of person and property present no obstruction to the authorities acting under such a
regime, if the acts which encroach upon them are necessary to the preservation or restoration of
public order and safety. Princeps et res publica ex justa causa possunt rem meam auferre. All the
procedures which are recognized adjuncts of executive crisis government ... are open to the persons
who bear official authority under martial law. The government may wield arbitrary powers of police to
allay disorder, arrest and detain without trial all citizens taking part in this disorder and even punish
them (in other words, suspend the [privilege of the] writ of habeas corpus), institute searches and
seizures without warrant, forbid public assemblies, set curfew hours, suppress all freedom of
expression, institute courts martial for the summary trial of crimes perpetrated in the course of this
regime and calculated to defeat its purposes ...
71
(emphasis supplied)
The point here is whether martial law is simply a shorthand expression denoting the suspension of
the writ, or whether martial law involves not only the suspension of the writ but much more besides.
... The latter view is probably sounder because martial law certainly in the present state of its
development, is not at all dependent on a suspension of the writ of habeas corpus. ... Where there
has been violence or disorder in fact, continued detention of offenders by the military is so far proper
as to result in a denial by the courts of writs releasing those detained. ...
72
IX.
Although the respondents, in their returns to the writs and in their answers to the several petitions, have insisted on
a disclaimer of the jurisdiction of this Court, on the basis of General Orders Nos. 3 and 3-A,
73
their subsequent
manifestations urging decision of these cases amount to an abandonment of this defense. In point of fact President Marco
has written, in unmistakable phrase, that "Our martial law is unique in that it is based on the supremacy of the civilian
authority over the military and on complete submission of the decision of the Supreme Court. ... For who is the dictator
who would submit himself to a higher body like the Supreme Court on the question of the constitutionality or validity of his
actions?"
74
Construing this avowal of the President and the repeated urgings of the respondents in the light of the
abovequoted provision of the 1973 Constitution (Art. XVII, sec. 3(2)), it is my submission that General Orders Nos. 3 and
3-A must be deemed revoked in so far as they tended to oust the judiciary of jurisdiction over cases involving the
constitutionality of proclamations, decrees, orders or acts issued or done by the President.
X
In sum and substance, I firmly adhere to these views: (1) that the proclamation of martial law in September 1972 by
the President was well within the aegis of the 1935 Constitution; (2) that because the Communist rebellion had not
abated and instead the evil ferment of subversion had proliferated throughout the archipelago and in many places
had exploded into the roar of armed and searing conflict with all the sophisticated panoply of war, the imposition of
martial law was an "imperative of national survival;" (3) that the arrest and detention of persons who were
"participants or gave aid and comfort in the conspiracy to seize political and state power and to take over the
government by force," were not unconstitutional nor arbitrary; (4) that subsumed in the declaration of martial law is
the suspension of the privilege of the writ of habeas corpus; (5) that the fact that the regular courts of justice are
open cannot be accepted as proof that the rebellion. and insurrection, which compellingly called for the declaration
of martial law, no longer imperil the public safety; (6) that actual armed combat has been and still is raging in
Cotabato, Lanao, Sulu and Zamboanga, not to mention the Bicol Region and Cagayan Valley, and nationwide
Communist subversion continues unabated; (7) that the host of doubts that had plagued this Court with respect to
the validity of the ratification and consequent effectivity of the 1973 Constitution has been completely dispelled by
every rational evaluation of the national referendum of July 1973, at which the people conclusively albeit quietly,
demonstrated nationwide acquiescence in. the new Constitution; and (8) that the issue of the validity and
constitutionality of the arrest and detention of all the petitioners and of the restrictions imposed upon those who were
subsequently freed, is now foreclosed by the transitory provision of the 1973 Constitution (Art, XVII. Sec. 3(2)) which
efficaciously validates all acts made, done or taken by the President, or by others upon his instructions, under the
regime of martial law, prior to the ratification of the said Constitution.
XI
It is not a mere surreal suspicion on the part of the petitioner Diokno that the incumbent members of this highest
Tribunal of the land have removed themselves from a level of conscience to pass judgment upon his petition
forhabeas corpus or afford him relief from his predicament. He has actually articulated it as a formal indictment. I
venture to say that his obsessional preoccupation on the ability of this Court to reach a fair judgment in relation to
him has been, in no small measure, engendered by his melancholy and bitter and even perhaps traumatic detention.
And even as he makes this serious indictment, he at the same time would withdraw his petition forhabeas corpus
hoping thereby to achieve martyrdom, albeit dubious and amorphous. As a commentary on this indictment, I here
that for my part and I am persuaded that all the other members of this Court are situated similarly I avow fealt
to the full intendment and meaning of the oath I have taken as a judicial magistrate. Utilizing the modest
endowments that God has granted me, I have endeavored in the past eighteen years of my judicial career and in
the future will always endeavor to discharge faithfully the responsibilities appurtenant to my high office, never
fearing, wavering or hesitating to reach judgments that accord with my conscience.
ACCORDINGLY, I vote to dismiss all the petitions.
APPENDIX to Separate Opinion of
Justice Fred Ruiz Castro
STATE CONSTITUTIONAL PROVISIONS
REGARDING MARTIAL LAW
ALASKA CONST., art. III, sec. 20:
Sec. 20. Martial Law. The governor may proclaim martial law when the public safety requires it in case of rebellion
or actual or imminent invasion. Martial law shall not continue for longer than twenty days without the approval of a
majority of the members of the legislature in joint session.
MAINE CONST., art. I, sec. 14:
Sec. 14. Corporal punishment under military law. No person shall be subject to corporal punishment under military
law, except such as are employed in the army or navy, or in the militia when in actual service in time of war or public
danger.
MARYLAND CONST., art. 32:
Art. 32. Martial Law. That no person except regular soldiers, marines, and mariners in the service of this State, or
militia, when in actual service, ought in any case, to be subject to, or punishable by Martial Law.
MASSACHUSETTS CONST., art. XXVIII:
Art. XXVIII. Citizens exempt from law martial. No person can in any case be subjected to law martial, or to any
penalties or pains, by virtue of that law, except those employed in the army or navy, and except the militia in actual
service, but by authority of the legislature.
NEW HAMPSHIRE, Pt II, arts. 34 and 51:
Art. 34th. Martial law limited. No person can, in any case, be subjected to law martial, or to any pains or penalties by
virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by
authority of the legislature.
Art. 51st. Powers and duties of governor as commander-in-chief; limitation. The governor of this state for the time
being. shall be commander-in-chief of the army and navy, and all the military forces of the state by sea and land;
and shall have full power by himself, or by any chief commander, or other officer, or officers, from time to time, to
train, instruct, exercise and govern the militia and navy; and for the special defense and safety of this state, to
assemble in martial array, and put in war-like posture, the inhabitants thereof, and to lead and conduct them, and
with them to encounter, repulse, repel resist and pursue by force of arms, as well by sea as by land, within and
without the limits of this state: and also kill, slay. destroy, if necessary, and conquer by all fitting ways, enterprise
and means, all and every such person and persons as shall, at any time hereafter, in a hostile manner, attempt or
enterprise the destruction, invasion, detriment or annoyance of this state; and to use and exercise over the army
and navy, and over the militia in actual service, the law martial in time of war invasion, and also in rebellion,
declared by the legislature to exist, as occasion shall necessarily require: And surprise, by all ways and means
whatsoever, all and every such person or persons, with their ships, arms, ammunition, and other goods, as shall in a
hostile manner invade, or attempt the invading, conquering or annoying this state; and in fine the governor hereby is
entrusted with all other powers incident to the office of the captain-general and commander-in-chief, and admiral, to
be exercised agreeably to the rules and regulations of the constitution, and the laws of the land; provided, that the
Governor shall not, at any time hereafter, by virtue of any power by this constitution granted, or hereafter to be
granted to him by the legislature, transport any of the inhabitants of this state, or oblige them to march out of the
limits of the same, without their free and voluntary consent, or the consent of the general court, nor grant
commissions for exercising the law martial in any case, without the advise and the consent of the council.
RHODE ISLAND CONST., art. I, sec. 18: .
Sec. 18. Military subordinate; martial law. The military shall be held in strict subordination to the civil authority. And
the law martial shall be used and exercised in such cases only as occasion shall necessarily require.
TENNESSEE CONST., art. 1, sec. 25:
Sec. 25. Punishment under martial and military law. That no citizen of this State, except such as are employed in the
army of the United States, or militia in actual service, shall be subjected to punishment under the martial or military
law. That martial law, in the sense of the unrestricted power of military officers, or others, to dispose of the persons,
liberties or property of the citizen, is inconsistent with the principles of free government, and is not confided to any
department of the government of this State.
VERMONT CONST., ch. 1, art. 17:
Art. 17th. Martial law restricted. That no person in this state can in any case be subjected to law martial, or to any
penalties or pains by virtue of that law except those employed in the army and the militia in actual service.
WEST VIRGINIA, art, III, sec. 12:
Art. III, sec. 12. Military subordinate to civil power. Standing armies, in time of peace, should be avoided as
dangerous to liberty. The military shall be subordinate to the civil power; and no citizen, unless engaged in the
military service of the State, shall be tried or punished by any military court, for any offense that is cognizable by the
civil courts of the State. No soldier shall, in time of peace, be quartered in any house, without the consent of the
owner, nor in time of war, except in the manner to be prescribed by law. .
FERNANDO, J ., concurring and dissenting:
The issue involved in these habeas corpus petitions is the pre-eminent problem of the times the primacy to be
accorded the claims of liberty during periods of crisis. There is much that is novel in what confronts the Court. A
traditional orientation may not suffice. The approach taken cannot be characterized by rigidity and inflexibility. There
is room, plenty of it, for novelty and innovation. Doctrines deeply rooted in the past, that have stood the test of time
and circumstance, must be made adaptable to present needs and, hopefully, serviceable to an unknown future, the
events of which, to recall Story, are locked tip in the inscrutable designs of a merciful Providence. It is essential then
that in the consideration of the petitions before us there be objectivity, calmness, and understanding. The deeper the
disturbance in the atmosphere of security, the more compelling is the need for tranquility of mind, if reason is to
prevail. No legal carrier is to be interposed to thwart the efforts of the Executive to restore normalcy. He is not to be
denied the power to take that for him may be necessary measures to meet emergency conditions. So the realities of
the situation dictate. There should be on the part of the judiciary then, sensitivity to the social forces at work,
creating conditions of grave unrest and turbulence and threatening the very stability not to say existence, of the
political order. It is in that setting that the crucial issue posed by these petitions is to be appraised. It may be that this
clash between the primacy of liberty and the legitimate defense of authority is not susceptible of an definite, clear-
cut solution. Nonetheless, an attempt has to be made. With all due recognition of the merit apparent in the
exhaustive, scholarly and eloquent dissertations of Justice Barredo and my other brethren as well as the ease and
lucidity with which the Chief Justice clarified the complex issues and the views of members of the Court, I would like
to give a brief expression to my thoughts to render clear the points on which I find myself, with regret, unable to be
of the same persuasion.
I concur in the dismissal of the habeas corpus petition of Benigno S. Aquino, Jr. solely on the ground that charges
had been filed and dissent in part in the dismissal of the petition of Francisco Rodrigo and others, * who joined him in his
plea for the removal of the conditions on their release, on the view that as far as freedom of travel is concerned, it should be, on principle, left unrestricted. As
originally prepared, this opinion likewise explained his dissent in the denial of the motion to withdraw in the petition filed on behalf of Jose W. Diokno, a matter now
moot and academic.
1. We have to pass on habeas corpus petitions. The great writ of liberty is involved. Rightfully, it is latitudinarian in
scope. It is wide-ranging and all-embracing in its reach. It can dig deep into the facts to assure that there be no
toleration of illegal restraint. Detention must be for a cause recognized by law. The writ imposes on the judiciary the
grave responsibility of ascertaining whether a deprivation of physical freedom is warranted. The party who is
keeping a person in custody has to produce him in court as soon as possible. What is more, he must justify the
action taken. Only if it can be demonstrated that there has been no violation of ones right to liberty will he be
absolved from responsibility. Failing that, the confinement must thereby cease. Nor does it suffice that there be a
court process, order, or decision on which it is made to rest. If there be a showing of a violation of constitutional
rights, the jurisdiction of the tribunal issuing it is ousted. Moreover, even if there be a valid sentence, it cannot, even
for a moment, be extended beyond the period provided for by law. When that time comes, he is entitled to be
released. It is in that sense then, as so well put by Holmes, that this great writ "is the usual remedy for unlawful
imprisonment."
1
It does afford to borrow from the language of Birkenhead "a swift and imperative remedy in all cases of
illegal restraint or confinement."
2
Not that there is need for actual incarceration. A custody for which there is no support in
law suffices for its invocation. The party proceeded against is usually a public official, the run-of-the-mill petitions often
coming from individuals who for one reason or another have run afoul of the penal laws. Confinement could likewise come
about because of contempt citations,
3
whether from the judiciary or from the legislature. It could also be due to statutory
commands, whether addressed to cultural minorities
4
or to persons diseased.
5
Then, too, this proceeding could be
availed of by citizens subjected to military discipline
6
as well as aliens seeking entry into or to be deported from the
country.
7
Even those outside the government service may be made to account for their action as in the case of wives
restrained by their husbands or children withheld from the proper parent or guardian.
8
It is thus apparent that any
deviation from the legal norms calls for the restoration of freedom. It cannot be otherwise. It would be sheer mockery of all
that such a legal order stands for, if any persons right to live and work where he is minded to, to move about freely, and to
be rid of any unwarranted fears that he would just be picked up and detained, is not accorded full respect. The
significance of the writ then for a regime of liberty cannot be overemphasized.
9
2. Nor does the fact that, at the time of the filing of these petitions martial law had been declared, call for a different
conclusion. There is of course imparted to the matter a higher degree of complexity. For it cannot be gainsaid that
the reasonable assumption is that the President exercised such an awesome power, one granted admittedly to cope
with an emergency or crisis situation, because in his judgment the situation as thus revealed to him left him with no
choice. What the President did attested to an executive determination of the existence of the conditions that called
for such a move. There was, in his opinion, an insurrection or rebellion of such magnitude that public safety did
require placing the country under martial law. That decision was his to make it; it is not for the judiciary. The
assessment thus made, for all the sympathetic consideration it is entitled to, is not, however, impressed with finality.
This Court has a limited sphere of authority. That, for me, is the teaching of Lansang.
10
The judicial role is difficult, but
it is unavoidable. The writ of liberty has been invoked by petitioners. They must be heard, and we must rule on their
petitions.
3. This Court has to act then. The liberty enshrined in the Constitution, for the protection of which habeas corpusis
the appropriate remedy, imposes that obligation. Its task is clear. It must be performed. That is a trust to which it
cannot be recreant Whenever the grievance complained of is deprivation of liberty, it is its responsibility to inquire
into the matter and to render the decision appropriate under the circumstances. Precisely, a habeas corpuspetition
calls for that response. For the significance of liberty in a constitutional regime cannot be sufficiently stressed.
Witness these words from the then Justice, later Chief Justice, Concepcion: "Furthermore, individual freedom is too
basic, to be denied upon mere general principles and abstract consideration of public safety. Indeed, the
preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its
enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted
[twelve other] paragraphs [thereof] to the protection of several aspect of freedom."
11
A similar sentiment was given
expression by the then Justice, later Chief Justice, Bengzon: "Let the rebels have no reason to apprehend that their
comrades now under custody are being railroaded into Muntinlupa without benefit of those fundamental privileges which
the experience of the ages has deemed essential for the protection of all persons accused of crime before the tribunals of
justice. Give them the assurance that the judiciary, ever mindful of its sacred mission will not, thru faulty cogitation or
misplaced devotion, uphold any doubtful claims of Governmental power in diminution of individual rights, but will always
cling to the principle uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the
Constitution, the Courts will favor personal liberty ...."
12
The pertinence of the above excerpt becomes quite manifest
when it is recalled that its utterance was in connection with a certiorari proceeding where the precise point at issue was
whether or not the right to bail could be availed of when the privilege of the writ of habeas corpus was suspended. There
was no decisive outcome, although there were five votes in favor of an affirmative answer to only four against.
13
Such
pronouncements in cases arising under the 1935 Constitution should occasion. no surprise. They merely underscore what
was so vigorously emphasized by the then Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, in
his sponsorship address of the draft provisions. Thus: "The history of the world is the history of man and his ardous
struggle for liberty. ... It is the history of those brave and able souls who, in the ages that are past, have labored, fought
and bled that the government of the lash that symbol of slavery and despotism - might endure no more. It is the history
of those great self-sacrificing men who lived and suffered in an age of cruelty, pain and desolation so that every man
might stand, under the protection of great rights and privileges, the equal of every other man.
14
So should it be under the
present Constitution. No less a person than President Marcos during the early months of the 1971 Constitutional
Convention categorically affirmed in his Todays Revolution: Democracy: "Without freedom, the whole concept of
democracy falls apart."
15
Such a view has support in history. A statement from Dr. Rizal has a contemporary ring: "Give
liberties, so that no one may have a right to conspire."
16
Mabini listed as an accomplishment of the ill-fated revolution
against the Americans the manifestation of "our love of freedom guaranteeing to each citizen the exercise of certain rights
which make our communal life less constricted, ...."
17
4. Equally so, the decisive issue is one of liberty not only because of the nature of the petitions but also because
that is the mandate of the Constitution. That is its philosophy. It is a regime of liberty to which our people are so
deeply and firmly committed.
18
The fate of the individual petitioners hangs in the balance. That is of great concern. What
is at stake however, is more than that much more. There is a paramount public interest involved. The momentous
question is how far in times of stress fidelity can be manifested to the claims of liberty. So it is ordained by the
Constitution, and it is the highest law. It must be obeyed. Nor does it make a crucial difference, to my mind, that martial
law exists. It may call for a more cautious approach. The simplicity of constitutional fundamentalism may not suffice for the
complex problems of the day. Still the duty remains to assure that the supremacy of the Constitution is upheld. Whether in
good times or bad, it must be accorded the utmost respect and deference. That is what constitutionalism connotes. It is its
distinctive characteristic. Greater restraints may of course be imposed. Detention, to cite the obvious example, is not ruled
out under martial law, but even the very proclamation thereof is dependent on public safety making it imperative. The
powers, rather expansive, perhaps at times even latitudinarian, allowable the administration under its aegis, with the
consequent diminution of the sphere of liberty, are justified only under the assumption that thereby the beleaguered state
is in a better position to protect, defend and preserve itself. They are hardly impressed with the element of permanence.
They cannot endure longer than the emergency that called for the executive having to make use of this extraordinary
prerogative. When it is a thing of the past, martial law must be at an end. It has no more reason for being. If its
proclamation is open to objection, or its continuance no longer warranted, there is all the more reason, to follow Laski, to
respect the traditional limitation of legal authority that freedom demands.
19
With these habeas corpus petitions precisely
rendering peremptory action by this Court, there is the opportunity for the assessment of liberty considered in a concrete
social context. With full appreciation then of the complexities of this era of turmoil and disquiet, it can hopefully contribute
to the delineation of constitutional boundaries. It may even be able to demonstrate that law can be timeless and yet timely.
5. There are relevant questions that still remain to be answered. Does not the proclamation of martial law carry with
it the suspension of the privilege of the writ of habeas corpus? If so, should not the principle above enunciated be
subjected to further refinement? I am not too certain that the first query. necessarily calls for an affirmative answer.
Preventive detention is of course allowable. Individuals who are linked with invasion or rebellion may pose a danger
to the public be safety. There is nothing inherently unreasonable in their being confined. Moreover, where it is the
President himself, as in the case of these petitioners, who personally directed that they be taken in, it is not easy to
impute arbitrariness. It may happen though that officers of lesser stature not impressed with the high sense of
responsibility would utilize the situation to cause the apprehension of persons without sufficient justification.
Certainly it would be, to my mind, to sanction oppressive acts if the validity of such detention cannot be inquired into
through habeas corpus petitions. It is more than just desirable therefore that if such be the intent, there be a specific
decree concerning the suspension of the privilege of the writ of habeas corpus. Even then, however, such
proclamation could be challenged. If vitiated by constitutional infirmity, the release may be ordered. Even if it were
otherwise, the applicant may not be among those as to whom the privilege of the writ has been suspended. It is
pertinent to note in this connection that Proclamation No. 1081 specifically states "that all persons presently
detained as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and
all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in
connection therewith, for crimes against national security and the law of nations, crime against the fundamental laws
of the State, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of
names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated
in Orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree,
order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention
until otherwise ordered released by me or by duly designated representative."
20
The implication appears at unless the
individual detained is included among those to whom any of the above crime or offense may be imputed, he is entitled to
judicial protection. Lastly, the question of whether or not there is warrant for the view that martial law is at an end may be
deemed proper not only in the light of radically altered conditions but also because of certain executive acts clearly
incompatible with its continued existence. Under such circumstances, an element of a justiciable controversy may be
discerned.
6. That brings me to the political question doctrine. Its accepted signification is that where the matter involved is left
to a decision by the people acting in their sovereign capacity or to the sole determination by either or both the
legislative or executive branch of the government, it is beyond judicial cognizance.
21
Thus it was that in suits where
the party proceeded against was either the President or Congress, or any of its branches for that matter, the courts
refused to act.
22
Unless such be the case, the action taken by any or both the political branches whether in the form of a
legislative act or an executive order could be tested in court. Where private rights are affected, the judiciary has the duty
to look into its validity. There is this further implication of the doctrine. A showing that plenary power is granted either
department of government may not be an obstacle to judicial inquiry. Its improvident exercise or the abuse thereof may
give rise to a justiciable controversy.
23
What is more, a constitutional grant of authority is not usually
unrestricted.
24
Limitations are provided for as to what may be done and how it is to he accomplished. Necessarily then, it
becomes the responsibility of the courts to ascertain whether the two coordinate branches have adhered to the mandate
of the fundamental law. The question thus posed is judicial rather than political.
7. Reference at this point to the epochal opinion in the aforecited Lansang v. Garcia decision, where the validity of
the suspension of the privilege of the writ of habeas corpus was sustained by this Court, is not amiss. For in both in
the 1935 and in the present Constitutions, the power to declare martial law is embraced in the same provision with
the grant of authority to suspend the privilege of the writ of habeas corpus, with the same limits to be observed in
the exercise thereof.
25
It would follow, therefore, that a similar approach commends itself on the question of whether or
not the finding made by the President in Proclamation No. 1081 as to the existence of "rebellion and armed action
undertaken by these lawless elements of the communist and other armed aggrupations organized to overthrow the
Republic of the Philippines by armed violence and force [impressed with the] magnitude of an actual state of war against
[the] people and the Republic ..."
26
is open to judicial inquiry. Reference to the opinion of Chief Justice Concepcion would
prove illuminating: "Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority
conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional.
The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the
former in the negative, evidently to stress its importance, by providing that (t)he privilege of the writ of habeas
corpus shall not be suspended. .... It is only by way of exception that it permits the suspension of the privilege in cases of
invasion, insurrection, or rebellion or, under Art. VII of the Constitution, "imminent danger thereof" when the public
safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such
suspension shall exist. Far from being full and plenary, the authority to suspend the privilege of the writ is thus
circumscribed, confined and restricted not only by the prescribed setting or the conditions essential to its existence, but
also as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or
conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist.
And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence
thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit
constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to
engage in such a wasteful exercise in futility."
27
Such a view was fortified by the high estate accorded individual freedom
as made clear in the succeeding paragraph of his opinion: "Much less may the assumption be indulged in when we bear
in mind that our political system is essentially democratic and republican in character and that the suspension of the
privilege affects the most fundamental element of that system, namely, individual freedom. Indeed, such freedom includes
and connotes, as well as demands, the right of every single member of our citizenry to freely discuss and dissent from, as
well as criticize and denounce, the views, the policies and the practices of the government and the party in power that he
deems unwise, improper or inimical to the commonwealth, regardless of whether his own opinion is objectively correct or
not. The untrammelled enjoyment and exercise of such right which, under certain conditions, may be a civic duty of the
highest order is vital to the democratic system and essential to its successful operation and wholesome growth and
development."
28
The writer wrote a concurring and dissenting opinion. He was fully in agreement with the rest of his brethren as to
the lack of conclusiveness attached to the presidential determination. Thus: "The doctrine announced inMontenegro
v. Castaeda that such a question is political has thus been laid to rest. It is about time too. It owed its existence to
the compulsion exerted by Barcelon v. Baker, a 1905 decision. This Court was partly misled by an undue reliance in
the latter case on what is considered to be authoritative pronouncement from such illustrious American jurists as
Marshall, Story, and Taney. That is to misread what was said by them. This is most evident in the case of Chief
Justice Marshall, whose epochal Marbury v. Madison was cited. Why that was so is difficult to understand. For it
speaks to the contrary. It was by virtue of this decision that the function of judicial review owes its origin
notwithstanding the absence of any explicit provision in the American Constitution empowering the courts to do so.
Thus: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the
rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the
courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the
constitution apply to a particular case, so that the court must either decide that case conformably to the law
disregarding the constitution; or conformably to the constitution, disregarding the law, the court must determine
which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are
to regard the constitution, and the constitution is superior to any ordinary act of legislature, the constitution, and not
such ordinary act, must govern the case to which they both apply."
29
8. To refer to Lansang anew, this Court sustained the presidential proclamation suspending the privilege of the writ
of habeas corpus as there was no showing of arbitrariness in the exercise of a prerogative belonging to the
executive, the judiciary merely acting as a check on the exercise of such authority. So Chief Justice Concepcion
made clear in this portion of his opinion: "Article VII of the Constitution vests in the Executive power to suspend the
privilege of the writ of habeas c under specified conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and
balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he
acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so
acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme. In the exercise
of such authority, the function of the Court is merely to check not to supplant the Executive, or toascertain merely
whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. To be sure, the power of the Court to determine the validity of the contested
proclamation is far from being identical to, or even comparable with, its power over ordinary civil or criminal cases
elevated thereto by ordinary appeal from inferior courts, in which cases the appellate court has all of the powers of
the court of origin."
30
The test then to determine whether the presidential action should be nullified according to the
Supreme Court is that of arbitrariness. Absent such a showing, there is no justification for annulling the presidential
proclamation.
On this point, the writer, in a separate opinion, had this to say: "With such presidential determination of the
existence of the conditions required by the Constitution to justify a suspension of the privilege of the writ no longer
conclusive on the other branches, this Court may thus legitimately inquire into its validity. The question before us, it
bears repeating, is whether or not Proclamation No. 889 as it now stands, not as it was originally issued, is valid.
The starting point must be a recognition that the power to suspend the privilege of the writ belongs to the Executive,
subject to limitations. So the Constitution provides, and it is to be respected. The range of permissible inquiry to be
conducted by this Tribunal is necessarily limited then to the ascertainment of whether or not such a suspension, in
the light of the credible information furnished the President, was arbitrary. Such a test met with the approval of the
chief counsel for petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question before the judiciary
is not the correctness but the reasonableness of the action taken. One who is not the Executive but equally
knowledgeable may entertain a different view, but the decision rests with the occupant of the office. As would be
immediately apparent even from a cursory perusal of the data furnished the President, so impressively summarized
in the opinion of the Chief Justice, the imputation of arbitrariness would be difficult to sustain. Moreover, the steps
taken by him to limit the area where the suspension operates as well as his instructions attested to a firm resolve on
his part to keep strictly within the bounds of his authority. Under the circumstances, the decision reached by the
Court that no finding of unconstitutionality is warranted commends itself for approval. The most that can be said is
that there was a manifestation of presidential power well-nigh touching the extreme borders of his conceded
competence, beyond which a forbidden domain lies. The requisite showing of either improvidence or abuse has not
been made."
31
9. The Lansang doctrine for me is decisive on the various issues raised in this case, my discussion being confined
to petitioner Rodrigo, as well as others similarly situated, for under my view that the petition in Aquino should be
dismissed because charges had been filed, and the petition in Diokno should be considered withdrawn, there need
be no further inquiry as to the merits of their respective contentions.
Now, first as to the validity of the proclamation itself. It would seem that it is beyond question in the light of this
particular transitory provision in the present Constitution: "All proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid,
legal, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent
President, or unless expressly and explicitly modified or repealed by the regular National Assembly."
32
Independently
of such provision, such presidential proclamation could not be characterized as arbitrary under the standard set forth in
the Lansang decision. He did act "on the basis of carefully evaluated and verified information, [which] definitely
established that lawless elements who are moved by a common or similar ideological conviction, design strategy and goal
and enjoying the active moral and material support of a foreign power and being guided and directed by intensely
devoted, well-trained, determined and ruthless groups of men and seeking refuge Linder the protection of our
constitutional liberties to promote and attain their ends, have entered into a conspiracy and have in fact joined and banded
their resources and forces together for the prime purpose of, and in fact they have been and are actually staging,
undertaking and waging an armed insurrection and rebellion against the Government of the Republic of the Philippines in
order to forcibly seize political state power in the country overthrow the duly constituted and supplant our existing political,
social, economic, and legal order with an entirely new one whose form of government, whose system of laws, whose
conception of God and religion, whose notion of individual rights and family relations, and whose political, social,
economic, legal and moral precepts are based on the Marxist-Leninist-Maoist teachings and beliefs; ...."
33
Subsequent events did confirm the validity of such appraisal. Even now, from the pleadings of the Solicitor General,
the assumption that the situation has not in certain places radically changed for the better cannot be stigmatized as
devoid of factual foundation. As of the present, even on the view that the courts may declare that the crisis
conditions have ended and public safety does not require the continuance of martial law, there is not enough
evidence to warrant such a judicial declaration. This is not to deny that in an appropriate case with the proper
parties, and, in the language of Justice Laurel, with such issue being the very lis mota, they may be compelled to
assume such an awesome responsibility. A sense of realism as well as sound juristic theory would place such
delicate task on the shoulders of this Tribunal, the only constitutional court. So I would read Rutter v.
Esteban.
34
There, while the Moratorium Act
35
was at first assumed to be valid, with this Court in such suit being
persuaded that its "continued operation and enforcement" under circumstances that developed later, became
"unreasonable and oppressive," and should not be prolonged a minute longer, ... [it was] "declared null and void and
without effect."
36
It goes without saying that before it should take such a step, extreme care should be taken lest the
maintenance of public peace and order, the primary duty of the Executive, be attended with extreme difficult . It is likewise
essential that the evidence of public safety no longer requiring martial law be of the clearest and most satisfactory
character. It cannot be too strongly stressed that while liberty is a prime objective and the judiciary is charged with the
duty of safeguarding it, on a matter of such gravity during periods of emergency, the executive appraisal of the situation is
deserving of the utmost credence. It suffices to recall the stress laid by Chief Justice Concepcion in Lansang that its
function "is merely to check not to supplant" the latter. The allocation of authority in the Constitution made by the
people themselves to the three departments of government must be respected. There is to be no intrusion by any one into
the sphere that belongs to another. Precisely because of such fundamental postulate in those cases, and there may be
such, but perhaps rather rare, it could amount to judicial abdication if no inquiry were deemed permissible and the
question considered political.
The last point is, while the detention of petitioners could have been validly ordered, as dictated by the very
proclamation itself, if it continued for an unreasonable length of time, then his release may be sought in a habeas
corpus proceeding. This contention is not devoid of plausibility. Even in times of stress, it cannot just be assumed
that the indefinite restraint of certain individuals as a preventive measure is unavoidable. It is not to be denied that
where such a state of affairs could be traced to the wishes of the President himself, it carries with it the presumption
of validity. The test is again arbitrariness as defined in Lansang. It may happen that the continued confinement may
be at the instance merely of a military official, in which case there is more leeway for judicial scrutiny.
10. A word more on the withdrawal of a habeas corpus petition. On the basic assumption that precisely the great
writ of liberty is available to a person subjected to restraint so that he could challenge its validity, I find it difficult not
to yield assent to a plea by the applicant himself that he is no longer desirous or pursuing such remedy. He had a
choice of whether or not to go to court. He was free to act either way. The fact that at first he did so, but that later he
was of a different mind, does not, in my opinion, alter the situation. The matter, for me, is still one left to his free and
unfettered will. The conclusion then for me at least, is that a court must accede to his wishes. It could likewise be
based on his belief that the realities of the situation compel the conclusion that relief could come from the Executive.
That decision was his to make. It must be respected. Moreover, if only because of humanitarian considerations,
considering the ill-effects of confinement on his state of health, there is equally legal support for the view that his
conditional release as in the case of the other detainees would not be inappropriate.
If his motion for withdrawal contained phraseology that is offensive to the dignity of the court, then perhaps the
corresponding disciplinary action may be taken. For that purpose, and for that purpose alone, the petition may be
considered as still within judicial cognizance. It is true in certain cases that the issues raised may be so
transcendental that there is wisdom in continuing the proceeding. The withdrawal, even then, for me, is not fraught
with pernicious consequences. If the matter were that significant or important, the probability is that the question will
soon be ventilated in another petition. There is, to deal briefly with another point, the matter of the rather harsh and
bitter language in which the motion for withdrawal was couched. That is a matter of taste. Even if it went beyond the
bounds of the permissible, the withdrawal should be granted. This for me is the principle that should obtain. The
rather uncharitable view expressed concerning the ability of certain members of the Court to act justly on the matter
should not give rise, in my opinion, to undue concern. That is ones belief, and one is entitled to it. It does not follow
that thereby the person thus unjustifiably maligned should suffer any loss of self-esteem. After all, it is a truism to
say that a man on the bench is accountable only to his conscience and, in the ultimate analysis, to his Maker. There
is all the more reason then not to be unduly bothered by the remarks in question. Moreover, they emanated from a
source suffering from the pangs of desperation born of his continued detention. It could very well be that the
disappointment of expectations and frustration of hopes did lead to such an intemperate outburst. There is, for meat
least, relevance to this excerpt from an opinion by Justice Frankfurter: "Since courts, although representing the law,
... are also sitting in judgment, as it were, on their own function in exercising their power to punish for contempt, it
should be used only in flagrant cases and with the utmost forbearance. It is always better to err on the side of
tolerance and even of disdainful indifference."
37
11. There is novelty in the question raised by petitioner Rodrigo. Nor is that the only reason why it matters. It is
fraught with significance not only for him but also for quite a number of others in a like predicament. They belong to
a group released from confinement. They are no longer detained. Ordinarily that should suffice to preclude resort to
the remedy of habeas corpus. Offhand, it may be plausibly asserted that the need no longer exists. The prison wall,
to paraphrase Chafee is no longer there; it has on function in exercising their power to punish for contempt, it should
be used only in flagrant cases and with the utmost forbearance. It is always better to err on the side of tolerance and
even of disdainful indifference."
37
11. There is novelty in the question raised by petitioner Rodrigo. Nor is that the only reason why it matters. It is
fraught with significance not only for him but also for quite a number of others in a like predicament. They belong to
a group released from confinement. They are no longer detained. Ordinarily that should suffice to preclude resort to
the remedy of habeas corpus. Offhand, it may be plausibly asserted that the need no longer exists. The prison wall,
to paraphrase Chafee is no longer there; it has fallen down. What is there to penetrate? That is just the point,
petitioner Rodrigo complains. That is not really true, or only true partially. There are physical as well as intellectual
restraints on his freedom. His release is conditional. There are things he cannot say places he cannot go. That is not
liberty in a meaningful sense. This great writ then has not lost its significance for him, as well as for others similarly
situated. The way he developed his argument calls to mind Cardozos warning that in a world of reality, a juridical
concept may not always be pressed to the limit of its logic. There are countervailing considerations. The fact that he
was among those whose detention was ordered by the President is one of them. There was then an executive
determination on the highest level that the state of affairs marked by rebellious activities did call for certain
individuals being confined as a preventive measure. Unless there is a showing of the arbitrariness of such a move,
the judiciary has to respect the actuation. It must be assumed that what was to be done with them thereafter must
have been given some attention. At one extreme, their preventive detention could be terminated and their full
freedom restored. At the other, it could be continued if circumstances did so warrant. Here, there was a middle way
chosen. Petitioner Rodrigo as well as several others were released subject to conditions. It cannot be dogmatically
maintained that such a solution was an affront to reason. Not only for the person locked up, but perhaps even more
so for his family, the end of the incarceration was an eagerly awaited and highly welcome event. That is quite
understandable. It did justify petitioners assertion that in so agreeing to the conditions imposed, he was not acting
of his own free will. Realistically, be had no choice or one minimal at most. Nonetheless, it cannot be denied that he
was a recipient of what at the very least was a clear manifestation of the Philippine brand of martial law being
impressed with a mild character.
This being a habeas corpus petition, the appropriate question for judicial inquiry is the validity of the limits set to the
conditional release of petitioner Rodrigo. The guiding principle is supplied by this ringing affirmation of Justice
Malcolm: "Any restraint which will preclude freedom of action is sufficient."
38
The implication for me is that there may
be instances of the propriety of the invocation of the writ even without actual incarceration. This is one of them. It is
heartening that the Court so view it. It is, to my mind, regrettable though that there appears to be full acceptance of the
power of the military to impose restrictions on petitioner Rodrigos physical liberty. There is need, it would seem to me, for
a more discriminating appraisal, especially where it could be shown that the order to that effect proceeds from a source
lower than the President. The extremely high respect justifiably accorded to the action taken by the highest official of the
land, who by himself is a separate and independent department, not to mention the one constitutional official authorized to
proclaim martial law, is not indicated. There should be, of course, no casual or unreasoned disregard for what the military
may deem to be the appropriate measure under the circumstances. This reflection, though, gives me pause. Petitioner
Rodrigo and others similarly situated were released. That step would not have been taken if circumstances did not justify
it. It seems then reasonable to assume that full, rather than restricted, freedom was warranted. The matter may be put
forth more categorically, but I refrain from doing so. The reason is practical. To insist that it should be thus may curb what
appears to be the commendable tendency to put an end to the preventive detention of those in actual confinement. As for
restraints on intellectual liberty embraced in freedom of speech and of press, of assembly, and of association, deference
to controlling authorities compel me to say that the writ of habeas corpus is not the proper case for assailing them. It does
not mean that judicial inquiry is foreclosed. Far from it. All that is intended to be conveyed is that this remedy does not
lend itself to that purpose. In so advocating this approach, I am not unmindful that it might be looked upon as lack of
awareness for the mischief that may be caused by irresponsible elements, not to say the rebels themselves. The words of
Willoughby, whose view on martial law is the most sympathetic to the primacy of liberty, furnish the antidote: "As long as
the emergency lasts then, they must upon pain of arrest and subsequent punishment refrain from committing acts that will
render more difficult the restoration of a state of normalcy and the enforcement of law.
39
12. Reliance, as is quite evident from the foregoing, is wellnigh solely placed on Philippine authorities. While the
persuasive character of American Constitutional law doctrines is not entirely a thing of the past, still, the novelty of
the question before us, compels in my view deference to the trend indicated by our past decisions, read in the light
not only of specific holdings but also of the broader principles on which they are based. Even if they do not precisely
control, they do furnish a guide. Moreover, there seems to be a dearth of United States Supreme Court
pronouncements on the subject of martial law, due no doubt to absence in the American Constitution of any
provision concerning it. It is understandable why no reference was made to such subject in the earliest classic on
American constitutional law written by Justice Story.
40
When the landmark 1866 Milligan case
41
made its appearance,
and much more so after Sterling
42
followed in 1932 and Duncan
43
in 1946, a discussion thereof became unavoidable. So
it is evident from subsequent commentaries and case books.
44
Cooley though, in his equally famous work that was first
published in 1868 contented himself with footnote references to Milligan.
45
Watson viewed it in connection with the
suspension of the privilege of the writ of habeas corpus.
46
In the nineteen twenties, there was a fuller treatment of the
question of martial law. Burdick anticipated Willoughby with this appraisal: "So-called martial law, except in occupied
territory of an enemy, is merely the calling in of the aid of military forces by the executive, who is charged with the
enforcement of the law, with or without special authorization by the legislature. Such declaration of martial law does not
suspend the civil law, though it may interfere with the exercise of ones ordinary rights. The right to call out the military
forces to maintain order and enforce the law is simply part of the police power. It is only justified when it reasonably
appears necessary, and only justifies such acts as reasonably appear necessary to meet the exigency, including the
arrest, or in extreme cases the killing of those who create the disorder or oppose the authorities. When the exigency is
over the members of the military forces are criminally and civilly liable for acts done beyond the scope of reasonable
necessity. When honestly and reasonably coping with a situation of insurrection or riot a member of the military forces
cannot be made liable for his acts, and persons reasonably arrested under such circumstances will not, during the
insurrection or riot, be free by writ of habeas corpus.
47
Willoughby, as already noted, was partial to the claims of liberty. This is quite evident in this excerpt in his opus:
"There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby military law
is substituted for civil law. So-called declarations of martial law are, indeed, often made but their legal effect goes no
further than to warn citizens that the military powers have been called upon by the executive to assist him in the
maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment
not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law.
Some of the authorities stating substantially this doctrine are quoted in the footnote below."
48
Willis spoke similarly:
"Martial law proper, that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil law, but
is rather an aid to the execution of civil law. Declarations of martial law go no further than to warn citizens that the
executive has called upon the military power to assist him in the maintenance of law and order. While martial law is in
force, no new powers are given to the executive and no civil rights of the individual, other than the writ of habeas corpus,
are suspended. The relations between the citizen and his state are unchanged."
49
It is readily evident that even when Milligan supplied the only authoritative doctrine, Burdick and Willoughby did not
ignore the primacy of civil liberties. Willis wrote after Sterling. It would indeed be surprising if his opinion were
otherwise. After Duncan, such an approach becomes even more strongly fortified. Schwartz, whose treatise is the
latest to be published, has this summary of what he considers the present state of American law:
"The Milligan andDuncan cases show plainly that martial law is the public law of necessity. Necessity alone calls it
forth; necessity justifies its exercise; and necessity measures the extent and degree to which it may be employed. It
is, the high Court has affirmed, an unbending rule of law that the exercise of military power, where the rights of the
citizen are concerned, may never be pushed beyond what the exigency requires. If martial rule survives the
necessity on which alone it rests, for even a single minute, it becomes a mere exercise of lawless
violence."
50
Further: "Sterling v. Constantin is of basic importance. Before it, a number of decisions, including one by the
highest Court, went on the theory that the executive had a free hand in taking martial-law measures. Under them, it had
been widely supposed that a martial-law proclamation was so far conclusive that any action taken under it was immune
from judicial scrutiny. Sterling v. Constantin, definitely discredits these earlier decisions and the doctrine of conclusiveness
derived from them. Under Sterling v. Constantin, where martial law measures impinge upon personal or property rights
normally beyond the scope of military power, whose intervention is lawful only because an abnormal situation has made it
necessary the executives ipse dixit is not of itself conclusive of the necessity."
51
It is not to be lost sight of that the basis for the declaration of martial law in the Philippines is not mere necessity but
an explicit constitutional provision. On the other hand, Milligan, which furnished the foundation for Sterling
52
and
Duncan
53
had its roots in the English common law. There is pertinence therefore in ascertaining its significance under that
system. According to the noted English author, Dicey: " Martial law, in the proper sense of that term, in which it means
the suspension of ordinary law and the temporary government of a country or parts of it by military tribunals, is unknown
to the law of England. We have nothing equivalent to what is called in France the Declaration of the State of Siege, under
which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army
(autorite militaire). This is an unmistakable proof of the permanent supremacy of the law under our constitution."
54
There
was this qualification: "Martial law is sometimes employed as a name for the common law right of the Crown and its
servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law.
This right, or power, is essential to the very existence of orderly government, and is most assuredly recognized in the
most ample manner by the law of England. It is a power which has in itself no special connection with the existence of an
armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier,
whether what is called a servant of the government, such for example as a policeman, or a person in no way connected
with the administration, not only has the right, but is, as a matter of legal duty, bound to assist in putting down breaches of
the peace. No doubt policemen or soldiers are the persons who, as being specially employed in the maintenance of order,
are most generally called upon to suppress a riot, but it is clear that all loyal subjects are bound to take their part in the
suppression of riots."
55
The picture would be incomplete, of course, if no reference were made to Rossiter. In his work on Constitutional
Dictatorship, where he discussed crisis governments in the French Republic, in Great Britain and in the United State
he spoke of martial rule. For him, it "is an emergency device designed for use in the crises of invasion or rebellion. It
may be most precisely defined as an extension of military government to the civilian population, the substitution of
the will of a military commander for the will of the peoples elected government. In the event of an actual or imminent
invasion b a hostile power, a constitutional government may declare martial rule in the menaced area. The result is
the transfer of all effective powers of government from the civil authorities to the military, or often merely the
assumption of such powers by the latter when the regular government has ceased to function. In the event of a
rebellion its initiation amounts to a governmental declaration of war on those citizens in insurrection against the
state. In either case it means military dictatorship government by the army, courts-martial, suspension of civil
liberties, and the whole range of dictatorial action of an executive nature. In the modern democracies the military
exercises such dictatorship while remaining subordinate and responsible to the executive head of the civil
government. Martial rule has a variety of forms and pseudonyms, the most important of which aremartial law, as it is
known in the civil law countries of the British Empire and the United States, and the state of siege, as it is known in
the civil law countries of continental Europe and Latin America. The state of siege and martial law are two edges to
the same sword, and in action they can hardly be distinguished. The institution of martial rule is a recognition that
there are times in the lives of all communities when crisis has so completely disrupted the normal workings of
government that the military is the only power remaining that can restore public order and secure the execution of
the laws.
56
Happily for the Philippines, the declaration of martial law lends itself to the interpretation that the Burdick,
Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty possess relevance. It cannot
be said that the martial rule concept of Rossiter, latitudinarian in scope, has been adopted, even on the assumption
that it can be reconciled with our Constitution. What is undeniable is that President Marcos has repeatedly
maintained that Proclamation No. 1081 was precisely based on the Constitution and that the validity of acts taken
thereunder could be passed upon by the Supreme Court. For me, that is quite reassuring, persuaded as I am
likewise that the view of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on
freedom. No undue concern need then be felt as to the continuing reliance on Moyer v. Peabody,
57
where Justice
Holmes speaking for the Court, stated that the test of the validity of executive arrest is that they be made "in good faith
and in the honest belief that they are needed in order to head the insurrection off ..."
58
He did state likewise: "When it
comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to
what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial
process. See Keely v. Sanders, 99 US 441, 446, 25 L ed. 327, 328, This was admitted with regard to killing men in the
actual clash of arms and we think it obvious, although it was disputed, that the same is true of temporary detention to
prevent apprehended harm."
59
Nor was this to manifest less than full regard for civil liberties. His other opinions indicated
the contrary. More specifically, it was from his pen, in Chastleton Corporation v. Sinclair,
60
where the doctrine that the
judiciary may inquire into whether the emergency was at an end, was given expression. Thus: "We repeat what was
stated inBlock v. Hirsh, ..., as to the respect due to a declaration of this kind by the legislature so far as it relates to
present facts. But, even as to them, a court is not a liberty to shut its eyes to an obvious mistake, when the validity of the
law depends upon the truth of what is declared. ... And still more obviously, so far as this declaration looks to the future, it
can be no more than prophecy, and is liable to be controlled by events. A law depending upon the existence of an
emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change,
even though valid when passed."
61
13. It may safely be concluded therefore that the role of American courts concerning the legality of acts taken during
a period of martial law is far from minimal. Why it must he so was explained by Dean Rostow in this wise: "Unless
the courts require a showing, in cases like these, of an intelligible relationship between means and ends, society has
lost its basic protection against the abuse of military power. The generals good intention must be irrelevant. There
should be evidence in court that his military judgment had a suitable basis in fact. As Colonel Fairman, a strong
proponent of widened military discretion, points out: When the executive fails or is unable to satisfy the court of the
evident necessity for the extraordinary measures it has taken, it can hardly expect the court to assume it on
faith."
62
This is the way Lasswell would summarize the matter: "On the whole, we can conclude that the courts of this
country have a body of ancient principles and recent precedents that can be used to keep at a minimum unnecessary
encroachments upon private rights by the executive, civil or military. The vigor and sensitiveness with which the due
process clause has been affirmed in the last two decades is, in particular, an important development."
63
14. It may be that the approach followed may for some be indicative of lack of full awareness of todays stern
realities. It is my submission that to so view the transcendental issues before us is to adhere as closely as possible
to the ideal envisioned in Ex parte Milligan: "The Constitution is a law for rulers and for people equally in war and
peace and covers with the shield of its protection all classes of men at all times and under all circumstances."
64
It is
ever timely to reiterate that at the core of constitutionalism is a robust concern for individual rights. This is not to deny that
the judicial process does not take place in a social void. The questions that call for decision are to be examined in the total
social context with full appreciation of the environmental facts, whether viewed in its temporal or other relevant aspects.
They have to reconcile time-tested principles to contemporary problems. Legal norms cannot always stand up against the
pressure of events. The great unquestioned verities may thus prove to be less than adequate. So much is conceded.
Nonetheless, even with the additional difficulty that the Court today is compelled to enter terrain with boundaries not so
clearly defined, carrying with it the risk of exceeding the normal limits of judicial imprecision, I find myself unable to resist
the compulsion of constitutional history and traditional doctrines. The facts and issues of the petitions before us and the
mandates of the fundamental law, as I view them in the light of accepted concepts, blunt the edge of what otherwise could
be considerations of decisive impact. I find myself troubled by the thought that, were it otherwise, it would amount to
freezing the flux of the turbulent present with its grave and critical problems in the icy permanence of juristic doctrines. As
of now, such an uncomfortable thought intrudes. Hence this brief concurring and dissenting opinion.
* The other petitioners are Joaquin P. Roces, Teodoro M. Locsin, Rolando Fadul, Rosalina Galang, Go Eng Guan,
Maximo V. Soliven, Renato Constantino, Luis R. Mauricio, Napoleon G. Rama, Jose Mari Velez, Ramon V. Mitra,
Juan L. Mercado, Roberto Ordoez, Manuel Almario, and Ernesto Rondon.
TEEHANKEE, J .:
Prefatory statement: This separate opinion was prepared and scheduled to be promulgated with the judgment of the
Court (penned by the Chief Justice) on September 12, 1974. Such promulgation was however overtaken by the
welcome news of the release from detention on September 11, 1974 of petitioner Jose W. Diokno upon the order of
President Ferdinand E. Marcos, and the Court then resolved to defer promulgation until the following week. Hence,
Part I of this opinion dealing with the Diokno petition should be read in such time context.
The two other parts thereof dealing with the Aquino and Rodrigo cases are to be read as of the actual date of
promulgation, since they reiterate a main theme of the opinion that the Court should adhere to the well-grounded
principle of not ruling on constitutional issues except when necessary in an appropriate case. In the writers view,
the gratifying development in the Diokno case which rendered his petition moot by virtue of his release once more
demonstrates the validity of this principle.
I. On the Diokno petition: I vote for the granting of petitioner Jose W. Dioknos motion of December 29, 1973 to
withdraw the petition for habeas corpus filed on September 23, 1972 on his behalf and the supplemental petition
and motions for immediate release and for oral argument of June 29, 1973 and August 14, 1973 filed in support
thereof, as prayed for.
1. The present action is one of habeas corpus and the detainees own withdrawal of his petition is decisive. If the
detainee himself withdraws his petition and no longer wishes this Court to pass upon the legality of his detention and
cites the other pending habeas corpus cases which have not been withdrawn and wherein the Court can rule on the
constitutional issues if so minded,
1
such withdrawal of a habeas corpus petition should be granted practically as a
matter of absolute right (whatever be the motivations therefor) in the same manner that the withdrawal motions of the
petitioners in the other- cases were previously granted by the Court.
2
Since there were seven (7) members of the Court who voted for granting the withdrawal motion as against five (5)
members who voted for denying the same and rendering a decision,
3
submit that this majority of seven (7) out of the
Courts membership of twelve (12) is a sufficient majority for granting the withdrawal prayed for. A simple majority of
seven is legally sufficient for the granting of a withdrawal of a petition, since it does not involve the rendition of a decision,
on the merits. It is only where a decision is to be rendered on the merits by the Court en banc that the 1973 Constitution
requires the concurrence of at least eight (8) members.
4
I therefore dissent from the majoritys adhering to the five-member minority view that the majority of seven members
is not legally sufficient for granting withdrawal and that a decision on the merits be rendered notwithstanding the
withdrawal of the petition.
2. The granting of the withdrawal of the petition is but in consonance with the fundamental principle on the exercise
of judicial power which, in the words of the Solicitor-General, "as Justice Laurel emphasized, is justifiable only as a
necessity for the resolution of an actual case and controversy and therefore should be confined to the very lis mota
presented."
5
Such withdrawal is furthermore in accord with the respondents stand from the beginning urging the Court not to
take cognizance (for want of jurisdiction or as a matter of judicial restraint citing Brandeis injunction that "The most
important thing we decide is what not to decide"
6
) or that "at the very least, this Court should postpone consideration of
this case until the present emergency is over."
7
Many of the other petitioners in the habeas corpus cases at bar were granted leave to withdraw their petitions.
Petitioner Dioknos withdrawal motion should likewise be granted in line with the well-established doctrine that the
Court will not rule on constitutional issues except when necessary in an appropriate case.
3. But the Solicitor-General now objects to the withdrawal on the ground of public interest and that "this Tribunal ...
has been used as the open forum for underground propaganda by those who have political axes to grind" with the
circulation of the withdrawal motion and that this Court would be "putting the seal of approval" and in effect admit the
"unfair, untrue and contemptuous" statements made in the withdrawal motion should this Court grant the
withdrawal.
8
I see no point in the position taken by the Solicitor-General of urging the Court to deny the withdrawal
motion only to render a decision that would after all dismiss the petition and sustain respondents defense of political
question and have the Court declare itself without jurisdiction to adjudicate the constitutional issues presented
9
and
asking the Court to embrace the "pragmatic method" of William James which "rejects ... the a priori assumption that there
are immutable principles of justice. It tests a proposition by its practical consequences."
10
The objections are untenable.
The public interest objection is met by the fact that there are still pending. other cases (principally the prohibition
case of petitioner Benigno S. Aquino, Jr. in another case, L-37364 questioning the filing of grave charges under the
Anti-Subversion Act, etc. against him with a military commission
11
and which is not yet submitted for decision) where
the same constitutional issues may be resolved.
The other objections are tenuous: The Solicitor-General refutes his own objections in his closing statement in his
comment that "for their part, respondents are confident that in the end they would be upheld in their defense, as
indeed petitioner and counsel have practically confessed judgment in this case."
12
The propaganda objection is not a valid ground for denying the withdrawal of the petition and should not be held
against petitioner who had nothing whatsoever to do with it. The objection that granting the withdrawal motion would
amount to an admission of the "unfair, untrue and contemptuous statements" made therein is untenable since it is
patent that granting the withdrawal motion per se (regardless of petitioners reasons) does not amount to an
admission of the truth or validity of such reasons and as conceded by the Solicitor-General, neither will denying the
withdrawal motion per se disprove the reasons.
13
The untruth, unfairness or costumacy of such reasons may best be
dealt with, clarified or expounded by the Court and its members in the Courts resolution granting withdrawal or in the
separate opinions of the individual Justices (as has actually been done and which the writer will now proceed to do).
4. Petitioners first reason for withdrawal is subjective. After mentioning various factors, particularly, the fact that five
of the six Justices (including the writer) who held in the Ratification cases
14
that the 1973 Constitution had not been
validly ratified had taken on October 29, 1973 an oath to import and defend the new Constitution, he expresses his feeling
that "(I) cannot reasonably expect either right or reason, law or justice, to prevail in my case," that "the unusual length of
the struggle also indicates that its conscience is losing the battle" and that "since I do not wish to be a party to an I
adverse decision, I must renounce every possibility of favorable judgment."
15
A partys subjective evaluation of the Courts
action is actually of no moment, for it has always been recognized that this Court, possessed of neither the sword nor the
purse, must ultimately and objectively rest its authority on sustained public confidence in the truth, justice, integrity and
moral force of its judgments."
16
Petitioners second reason for withdrawal reads: "(S)econd, in view of the new oath that its members have taken,
the present Supreme Court is a new Court functioning under a new Constitution, different from the Court and the
Constitution under which I applied for my release. I was willing to be judged by the old Court under the old
Constitution, but not by the new Court under the new Constitution, ...."
17
Petitioner is in error in his assumption that this Court is "new Court functioning under a new Constitution different
from the Court and the Constitution under which [he] applied for [his] release." The same Supreme Court has
continued save that it now operates under Article X of the 1973 Constitution which inter alia increased its component
membership from eleven to fifteen and transferred to it administrative supervision over all courts and personnel
thereof with the power of discipline and dismissal over judges of inferior courts, in the same manner that the same
Republic of the Philippines (of which the Supreme Court is but a part) has continued in existence but now operates
under the 1973 Constitution.
18
During the period of ninety days that the Ratification cases were pending before the Court until its dismissal of the
cases per its resolution of March 31, 1973 became final on April 17, 1973, the Executive Department was operating
under the 1973 Constitution in accordance with President Ferdinand E. Marcos Proclamation No. 1102 on January
17, 1973 announcing the ratification and corning into effect of the 1973 Constitution while this Court as the only
other governmental department continued to operate tinder the 1935 Constitution pending its final resolution on the
said cases challenging the validity of Proclamation No. 1102 and enforcement of the new Constitution. (As per the
Court resolution of January 23, 1973, it declined to take over from the Department of Justice the administrative
supervision over all inferior courts expressing its sense that "it is best that the status quobe maintained until the
case aforementioned (Javellana vs. Exec. Secretary) shall have been finally resolved...")
Such a situation could not long endure wherein the only two great departments of government, the Executive and
the Judicial,
19
for a period of three months were operating under two different Constitutions (presidential and
parliamentary). When this Courts resolution of dismissal of the Ratification cases by a majority of six to four Justices
became final and was entered on April 18, 1973 "with the result that there (were) not enough votes to declare that the new
Constitution is not in force,"
20
the Court and particularly the remaining three dissenting Justices (notwithstanding their
vote with three others that the new Constitution had not been validly ratified
21
had to abide under the Rule of Law by the
decision of the majority dismissing the cases brought to enjoin the enforcement by the Executive of the new Constitution
and had to operate under it as the fundamental charter of the government, unless they were to turn from legitimate dissent
to internecine dissidence for which they have neither the inclination nor the capability.
The Court as the head of the Judicial Department thenceforth assumed the power of administrative supervision over
all courts and all other functions and liabilities imposed on it under the new Constitution. Accordingly, this and all
other existing inferior courts continue to discharge their judicial function and to hear and determine all pending cases
under the old (1935)Constitution
22
as well as new cases under the new (1973) Constitution with the full support of the
members of the Integrated Bar of the Philippines (none of whom has made petitioners claim that this is a "new Court"
different from the "old Court").
A major liability imposed upon all members of the Court and all other officials and employees was that under Article
XVII, section 9 of the Transitory Provisions
23
which was destructive of their tenure and called upon them "to vacate their
respective offices upon the appointment and qualification of their successors." Their taking the oath on October 29, 1973
"to preserve and defend the new Constitution" by virtue of their "having been continued in office"
24
on the occasion of the
oath-taking of three new members of the Court
25
pursuant to Article XV, section 4
26
was meant to assure their "continuity
of tenure" by way of the President having exercised the power of replacement under the cited provision and in effect
replaced them with themselves as members of the Court with the same order of seniority.
27
5. The withdrawal in effect gives cause for judicial abstention and further opportunity (pending submittal for decision
of the Aquino prohibition case in L-37364) to ponder and deliberate upon the host of grave and fundamental
constitutional questions involved which have thereby been rendered unnecessary to resolve here and now.
In the benchmark case of Lansang vs. Garcia
28
when the Court declared that the President did not act arbitrarily in
issuing in August, 1971 Proclamation No. 889, as amended, suspending the privilege of the writ of habeas corpus for
persons detained for the crimes of insurrection or rebellion and other overt acts committed by them in furtherance thereof,
the Court held through then Chief Justice Concepcion that "our next step would have been the following: The Court, or a
commissioner designated by it, would have received evidence on whether as stated in respondents Answer and
Return said petitioners had been apprehended and detained on reasonable belief that they had participated in the
crime of insurrection or rebellion.
(However, since in the interval of two months during the pendency of the case, criminal complaints had been filed in
court against the petitioners-detainees (Luzvimindo David, Gary Olivar, et al.), the Court found that "it is best to let
said preliminary examination and/or investigation be completed, so that petitioners release could be ordered by the
court of first instance, should it find that there is no probable cause against them, or a warrant for their arrest could
be issued should a probable cause be established against them ."
29
The Court accordingly ordered the trial court "to
act with utmost dispatch" in conducting the preliminary investigation for violation of the Anti-Subversion Act and "to issue
the corresponding warrants of arrest, if probable cause is found to exist against them, or otherwise, to order their
release.")
Can such a procedure for reception of evidence on the controverted allegations concerning the detention as
indicated in Lansang be likewise applied to petitioners case considering his prolonged detention for almost two
years now without charges?
30
It should also be considered that it is conceded that even though the privilege of the writ
ofhabeas corpus has been suspended, it is suspended only as to certain specific crimes and the "answer and return" of
the respondents who hold the petitioner under detention is not conclusive upon the courts which may receive evidence
and determine as held in Lansang (and as also provided in the Anti-Subversion Act [Republic Act 1700]) whether a
petitioner has been in fact apprehended and detained arbitrarily or "on reasonable belief" that he has "participated in the
crime of insurrection or rebellion" or other related offenses as may be enumerated in the proclamation suspending the
privilege of the writ.
Pertinent to this question is the Courts adoption in Lansang of the doctrine of Sterling vs. Constantin
31
enunciated
through U.S. Chief Justice Hughes that even when the state has been placed under martial law "... (W)hen there is
asubstantial showing that the exertion of state power has overridden private rights secured by that Constitution, the
subject isnecessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the
transgression. To such a case the Federal judicial power extends (Art. 3, sec. 2) and, so extending, the court has all the
authority appropriate to its exercise. ...
Equally pertinent is the Courts statement therein announcing the members unanimous conviction that "it has the
authority to inquire into the existence of said factual bases [stated in the proclamation suspending the privilege of
the writ of habeas corpus or placing the country under martial law as the case may be, since the requirements for
the exercise of these powers are the same and are provided in the very same clause] in order to determine the
constitutional sufficiency thereof."
32
The Court stressed therein that "indeed, the grant of power to suspend the privilege
is neither absolute nor unqualified. The authority conferred upon by the Constitution, both under the Bill of Rights and
under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as
well as an exception thereto. what is more, it postulates the former in the negative, evidently to stress its importance, by
providing that (t)he privilege of the writ of habeas corpus shall not be suspended .... It is only by way of exception that it
permits the suspension of the privilege in cases of invasion, insurrection, or rebellion or under Art. VII of the
Constitution, imminent danger thereof when the public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for such suspension shall exist. Far from being full and plenary, the
authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed
setting or the conditions essential to its existence, but also, as regards the time when and the place where it may be
exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines
and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the
Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper
bounds, be inquired into by the courts of justice. Otherwise, the explicit constitutional provisions thereon would be
meaningless. Surely, the frames of our Constitution could not have intended to engage in such a wasteful exercise in
futility."
33
While a state of martial law may bar such judicial inquiries under the writ of habeas corpus in the actual theater of
war, would the proscription apply when martial law is maintained as an instrument of social reform and the civil
courts (as well as military commissions) are open and freely functioning? What is the extent and scope of the
validating provision of Article XVII, section 3 (2) of the Transitory Provisions of the 1973 Constitution?
34
Granting the validation of the initial preventive detention, would the validating provision cover indefinite detention
thereafter or may inquiry be made as to its reasonable relation to meeting the emergency situation?
What rights under the Bill of Rights, e.g. the rights to due process and to "speedy, impartial and public trial"
35
may
be invoked under the present state of martial law?
Is the exercise of martial law powers for the institutionalization of reforms incompatible with recognizing the
fundamental liberties granted in the Bill of Rights?
The President is well aware of the laymans view of the "central problem of constitutionalism in our contemporary
society ... whether or not the Constitution remains an efficient instrument for the moderation of conflict within society.
There are two aspects of this problem. One is the regulation of freedom in order to prevent anarchy. The other is the
limitation of power in order to prevent tyranny."
36
Hence, he has declared that "The New Society looks to individual rights as a matter of paramount concern, removed
from the vicissitudes of political controversy and beyond the reach of majorities. We are pledged to uphold the Bill of
Rights and as the exigencies may so allow, we are determined that each provision shall be executed to the
fullest,"
37
and has acknowledged that "martial law necessarily creates a command society ... [and] is
atemporary constitutional expedient of safeguarding the republic ..."
38
He has thus described the proclamation of martial law and "the setting up of a corresponding crisis government" as
constitutional authoritarianism," which is a recognition that while his government is authoritarian it is essentially
constitutional and recognizes the supremacy of the new Constitution.
He has further declared that "martial law should have legally terminated on January 17, 1973 when the new
Constitution was ratified" but that "the Popular clamor manifested in the referendum [was] that the National
Assembly he temporarily suspended" and the reaction in the July, 1973 referendum "was violently against stopping
the use of martial law powers," adding that "I intend to submit this matter at least notice a year to the people, and
when they say we should shift to the normal functions of government, then we will do so."
39
The realization of the prospects for restoration of normalcy and full implementation of each and every provision of
the Bill of Rights as pledged by the President would then hopefully come sooner rather than later and provides an
additional weighty reason for the exercise of judicial abstention under the environmental circumstances and for the
granting of the withdrawal motion.
II. In the Aquino case: I maintain my original vote as first unanimously agreed by the Court for dismissal of
thehabeas corpus petition of Benigno S. Aquino, Jr. on the ground that grave charges against him for violation of the
Anti-Subversion Act (Republic Act 1700), etc. were filed in August, 1973 and hence the present petition has been
superseded by the prohibition case then filed by him questioning the filing of the charges against him with a military
commission rather than with the civil courts (which case is not yet submitted for decision).
The said prohibition case involves the same constitutional issues raised in the Diokno case and more, concerning
the constitutionality of having him tried by a military commission for offenses allegedly committed by him long before
the declaration of martial law. This is evident from the special and affirmative defenses raised in respondents
answer which filed just last August 21, 1974 by the Solicitor which reiterate the same defenses in his answer to the
petition at bar. Hence, the same constitutional issues may well be resolved if necessary in the decision yet to be
rendered by the Court in said prohibition case.
I therefore dissent from the subsequent vote of the majority to instead pass upon and resolve in advance the said
constitutional issues unnecessarily in the present case.
III. In the Rodrigo case: I submit that the habeas corpus petition of Francisco "Soc" Rodrigo as well as the petitions
of those others similarly released should be dismissed for having been rendered moot and academic by virtue of
their release from physical confinement and detention. That their release has been made subject to certain
conditions (e.g. not being allowed to leave the Greater Manila area without specific authorization of the military
authorities) does not mean that their action would survive, since "(T)he restraint of liberty which would justify the
issuance of the writ must be more than a mere moral restraint; it must be actual or physical ."
40
They may have some
other judicial recourse for the removal of such restraints but their action for habeas corpus cannot survive since they are
no longer deprived of their physical liberty. For these reasons and those already expounded hereinabove, I dissent from
the majority vote to pass upon and resolve in advance the constitutional issues unnecessarily in the present case.
BARREDO, J ., concurring:
It is to my mind very unfortunate that, for reasons I cannot comprehend or do not deem convincing, the majority of
the Court has agreed that no main opinion be prepared for the decision in these, cases. Honestly, I feel that the
grounds given by the Chief Justice do not justify a deviation from the regular practice of a main opinion being
prepared by one Justice even when the members of the Court are not all agreed as to the grounds of the judgment
as long as at least a substantial number of Justices concur in the basic ones and there are enough other Justices
concurring in the result to form the required majority. I do not see such varying substantial disparity in the views of
the members of the Court regarding the different issues here as to call for a summarization like the one that was
done, with controversial consequences, in Javellana. * Actually, the summarization made by the Chief Justice does not in my opinion portray
accurately the spectrum of our views, if one is to assay the doctrinal value of this decision. The divergences stated are I think more apparent than real.
In any event, it is my considered view that a historical decision like this, one likely to be sui generis, at the same time
that it is of utmost transcendental importance because it revolves around the proper construction of the
constitutional provisions securing individual rights as they may be, affected by those empowering the Government to
defend itself against the threat of internal and external aggression, as these are actually operating in the setting of
the Official proclamation of the Executive that rebellion endangering public safety actually exists, deserves better
treatment from the Court. Indeed, I believe that our points of seeming variance respecting the questions before us
could have been threshed out, if only enough effort in that direction had been exerted by all. The trouble is that from
the very beginning many members of the Court, myself included, announced our desire to have our views recorded
for history, hence, individualization rather than consensus became the order of the day. In consequence, the
convenient solution was forged that as long as there would be enough votes to support a legally binding judgment,
there need not be any opinion of the Court, everyone could give his own views and the Chief Justice would just try
to analyze the opinions of those who would care to prepare one and then make a certification of the final result of
the voting. It was only at the last minute that, at my suggestion, supported by Justice Castro, the Chiefs prepared
certification was modified to assume the form of a judgment, thereby giving this decision a better semblance of
respectability.
As will be seen, this separate opinion of concurrence is not due to any irreconcilable conflict of conviction between
me and any other member of the Court. Truth to tell, at the early stages of our efforts to decide these but after the
Court had more or less already arrived at a consensus as to the result, I was made to understand that I could
prepare the opinion for the Court. Apparently, however, for one reason or another, some of our colleagues felt that it
is unnecessary to touch on certain matters contained in the draft I had submitted, incomplete and unedited as it was,
hence, the plan was abandoned. My explanation that a decision of this import should be addressed in part to the
future and should attempt to answer, as best we can, not only the questions raised by the parties but also the
relevant ones that we are certain are bothering many of our countrymen, not to speak of those who are interested in
the correct juridical implications of the unusual political developments being witnessed in the Philippines these days,
failed to persuade them. I still feel very strongly, however, the need for articulating the thoughts that will enable the
whole world to visualize and comprehend the exact length, breath and depth of the juridical foundations of the
current constitutional order and thus be better positioned to render its verdict thereon.
The following then is the draft of the opinion I prepared for the Court. I feel I need not adjust it to give it the tenor of
an individual opinion. Something inside me dictates that I should let it stand as I had originally prepared it. I am
emboldened to do this by the conviction that actually, when properly analyzed, it will be realized that whatever
differences there might be in the various opinions we are submitting individually, such differences lie only in the
distinctive methods of approach we have each preferred to adopt rather than in any basically substantial and
irreconcilable disagreement. If we had only striven a little more, I am confident, we could have even found a
common mode of approach. I am referring, of course, only to those of us who sincerely feel the urgency of resolving
the fundamental issues herein, regardless of purely technical and strained reasons there might be to apparently
justify an attitude of indifference, if not concealed antagonism, to the need for authoritative judicial clarification of the
juridical aspects of the New Society in the Philippines.
On September 11, 1974, petitioner Diokno was released by the order of the President, "under existing rules and
regulations." The Court has, therefore, resolved that his particular case has become moot and academic, but this
development has not affected the issues insofar as the other petitioners, particularly Senator Aquino, are concerned.
And inasmuch as the principal arguments of petitioner Diokno, although presented only in the pleadings filed on his
behalf, apply with more or less equal force to the other petitioners, I feel that my reference to and discussion of said
arguments in my draft may well be preserved, if only to maintain the purported comprehensiveness of my treatment
of all the important aspects of these cases.
Before proceeding any further, I would like to explain why I am saying we have no basic disagreements.
Except for Justices Makasiar and Esguerra who consider the recitals in the Proclamation to be absolutely conclusive
upon the courts and of Justice Teehankee who considers it unnecessary to express any opinion on the matter at this
point, the rest or eight of us have actually inquired into the constitutional sufficiency of the Proclamation. Where we
have differed is only as to the extent and basis of the inquiry. Without committing themselves expressly as to
whether the issue is justiciable or otherwise, the Chief Justice and Justice Castro unmistakably appear to have
actually conducted an inquiry which as far as I can see is based on facts which are uncontradicted in the record plus
additional facts of judicial notice. No independent evidence has been considered, nor is any reference made to the
evidence on which the President had acted. On their part, Justices Antonio, Fernandez and Aquino are of the view
that the Proclamation is not subject to inquiry by the courts, but assuming it is, they are of the conviction that the
record amply supports the reasonableness, or lack of arbitrariness, of the Presidents action. Again, in arriving at
this latter conclusion, they have relied exclusively on the same factual bases utilized by the Chief Justice and
Justice Castro. Justices Fernando and Muoz Palma categorically hold that the issue is justiciable and, on that
premise, they made their own inquiry, but with no other basis than the same undisputed facts in the record and facts
of judicial notice from which the others have drawn their conclusions. For myself, I am just making it very clear that
the inquiry which the Constitution contemplates for the determination of the constitutional sufficiency of a
proclamation of martial law by the President should not go beyond facts of judicial notice and those that may be
stated in the proclamation, if these are by their very nature capable of unquestionable demonstration. In other
words, eight of us virtually hold that the Executives Proclamation is not absolutely conclusive but it is not to be
interfered with whenever it with facts undisputed in the record as well as those of judicial notice or capable of
unquest demonstration. Thus, it is obvious that although we are split between upholding justiciability or non-
justiciability, those who believe in the latter have nonetheless conducted an inquiry, while those who adhere to the
former theory, insisting on following Lansang, have limited their inquiry to the uncontroverted facts and facts of
judicial notice. Indeed, the truth is that no one has asked for inquiry into the evidence before the President which is
what the real import of justiciability means. In the final analysis, none of us has gone beyond what in my humble
opinion the Constitution permits in the premises. In other words, while a declaration of martial law is not absolutely
conclusive, the Courts inquiry into its constitutional sufficiency may not, contrary to what is implied in Lansang,
involve the reception of evidence to be weighed against those on which the President has acted, nor may it extend
to the investigation of what evidence the President had before him. Such inquiry must be limited to what is
undisputed in the record and to what accords or does not accord with facts of judicial notice.
Following now is my separate concurring opinion which as I have said is the draft I submitted to the Courts
approval:
This is a cluster of petitions for habeas corpus seeking the release of petitioners from detention, upon the main
ground that, allegedly, Proclamation 1081 issued by President Ferdinand E. Marcos on September 21, 1972 placing
the whole country under martial law as well as the general orders subsequently issued also by the President by
virtue of the said proclamation, pursuant to which petitioners have been apprehended and detained, two of them
until the present, while the rest have been released conditionally, are unconstitutional and null and void, hence their
arrest and detention have no legal basis.
The petitioners in G. R. No. L-35538 are all journalists, namely, Joaquin P. Roces, Teodoro M. Locsin, Rolando
Fadul, Rosalind Galang, Go Eng Guan, Maximo M. Soliven, Renato Constantino and Luis R. Mauricio. Their petition
was filed at about noon of September 23, 1972.
Almost three hours later of the same day, the petition in G. R. No. L-35539 was filed, with Carmen I. Diokno, as
petitioner, acting on behalf of her husband, Jose W. Diokno, a senator, who is one of those still detained.
Two days later, early in the morning of September 25, 1972, the petition of Maximo V. Soliven, Napoleon G. Rama
and Jose Mari Velez, all media men, was docketed as G. R. No. L-35540. The last two were also delegates to the
Constitutional Convention of 1971.
In all the three foregoing cases, the proper writs of habeas corpus were issued returnable not later than 4:00 p.m. of
September 25, 1972, and hearing of the petitions was held on September 26, 1972.
1
Late in the afternoon of September 25, 1972, another petition was filed on behalf of Senators Benigno S. Aquino, Jr.
and Ramon V. Mitra, Jr., and former Senator Francisco "Soc" Rodrigo, also a TV commentator. (Delegate Napoleon
Rama also appears as petitioner in this case.) It was docketed as G. R. No. L-35546.
The next day, September 26, 1972, a petition was filed by Voltaire Garcia II, another delegate to the Constitutional
Convention, as G. R. No. L- 35547.
2
In this two cases the writs prayed for were also issued and the petitions were heard together on September 29,
1972.
In G. R. No. L-35556, the petition was filed by Tan Chin Hian and Veronica L. Yuyitung on September 27, 1972, but
the same was withdrawn by the latter on October 6, 1972 and the former on October 9, 1972, since they were
released from custody on September 30, 1972 and October 9, 1972, respectively. The Court allowed the
withdrawals by resolution on October 11, 1972.
On October 2, 1972, the petition of journalists Amando Doronila, Juan L. Mercado, Hernando J. Abaya, Ernesto
Granada, Luis Beltran, Tan Chin Hian, (already a petitioner in G. R. No. L-35556) Bren Guiao, (for whom a
subsequent petition was also filed by his wife in G. R. No. L-35571, but both petitions on his behalf were
immediately withdrawn with the approval of the Court which was given by resolution on October 11, 1972) Ruben
Cusipag, Roberto Ordoez, Manuel Almario and Willie Baun was filed in G. R. No.
L-35567. All these petitioners, except Juan L. Mercado, Manuel Almario, and Roberto Ordoez withdrew their
petition and the Court allowed the withdrawals by resolution of October 3, 1972.
And on October 3, 1972, Ernesto Rondon, also a delegate to the Constitutional Convention and a radio
commentator, filed his petition in G. R. No.
L-35573.
Again, in all these last four cases, G. R. Nos., L-35556, 35567, 35571 and 35573, the corresponding writs were
issued and a joint hearing of the petition was held October 6, 1972, except as to the petitioners who had as of then
announced the withdrawal of their respective petitions.
The returns and answers of the Solicitor General in all these nine cases, filed on behalf of the principal respondents,
the secretary of National Defense, Hon. Juan Ponce Enrile, the Chief of Staff of the Armed Forces of the Philippines,
General Romeo Espino, and the Chief of the Philippine Constabulary, General Fidel V. Ramos, were practically
identical as follows:
RETURN TO WRIT
and
ANSWER TO THE PETITION
COME NOW respondents, by the undersigned counsel, and appearing before this Honorable Court only for
purposes of this action, as hereunder set forth, hereby state by way of return to the writ and answer to the petition,
as follows:
ADMISSIONS/DENIALS
1. They ADMIT the allegation in paragraphs I and V of the Petition;
2. They ADMIT the allegations in paragraph II of the Petition that the petitioners were arrested on
September 22, 1972 and are presently detained at Fort Bonifacio, Makati, Rizal, but SPECIFICALLY
DENY the allegation that their detention is illegal, the truth being that stated in Special and
Affirmative Defenses of this Answer and Return;
3. They SPECIFICALLY DENY the allegations in paragraphs III, IV, VI and VII, of the Petition, the
truth of the matter being that stated in the Special and Affirmative Defenses of this Answer and
Return.
Respondents state by way of
SPECIAL AND AFFIRMATIVE DEFENSES
4. On September 21, 1972, the President of the Philippines, in the exercise of the powers vested in
him by Article VII, section 10, paragraph 2 of the Constitution, issued Proclamation No. 1081 placing
the entire Philippines under martial law;
5. Pursuant to said Proclamation , the President issued General Orders Nos. 1, 2, 3, 3-A, 4, 5, 6,
and 7 and Letters of Instruction Nos. 1, 2 and 3. True copies of these documents are hereto
attached and made integral parts hereof as Annexes 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11. A copy of the
Presidents statement to the country on September 23, 1972 is also attached as Annex 12;
6. Finally, the petition states no cause of action.
P R A Y E R
IN VIEW WHEREOF, it is respectfully prayed of this Honorable Supreme Court that the petition be
dismissed.
Manila, Philippines, September 27, 1972.
At the hearings, the following well-known and distinguished members of the bar appeared and argued for the
petitioners: Petitioner Diokno argued on his own behalf to supplement the arguments of his counsel of record; Attys.
Joker D. Arroyo appeared and argued for the petitioners in L-35538 and L35567; Francis E. Garchitorena, assisted
by Oscar Diokno Perez, appeared and argued for the petitioner in L-35539; Ramon A. Gonzales, assisted by
Manuel B. Imbong appeared and argued for the petitioners in
L-35540; Senators Gerardo Roxas and Jovito R. Salonga, assisted by Attys. Pedro L. Yap, Sedfrey A. Ordoez,
Custodio O. Parlade, Leopoldo L. Africa, Francisco Rodrigo Jr., Magdaleno Palacol and Dakila F. Castro, appeared
and argued for the petitioners in
L-35546; Atty. E. Voltaire Garcia Sr. appeared and argued in behalf of his petitioner son in L-35547; Attys. Raul I.
Goco and Teodulo R. Dino appeared for the petitioners in
L-35556; Atty. Roberto P. Tolentino appeared for the petitioner in L-35571; and Atty. Aquilino Pimentel Jr. assisted
by Atty. Modesto R. Galias Jr. appeared and argued for the petitioner in L-35578.
On October 31, 1972, former Senator Lorenzo M. Taada, together with his lawyer-sons, Attorneys Renato and
Wigberto Taada, entered their appearance as counsel for all the petitioners in G. R. No. L-35538, except Fadul,
Galang and Go Eng Guan, for petitioner Diokno in G. R. No. L-35539 and for petitioners Aquino, Mitra, Rodrigo and
Rama in G. R. No. L35546.
For the respondents, Solicitor General Estelito P. Mendoza, Assistant Solicitors General Bernardo P. Pardo and
Rosalio A. de Leon (both of whom are judges now), Solicitor Reynato S. Puno (now Assistant Solicitor General) and
Solicitors Jose A. R. Melo and Jose A. Janolo appeared in all the cases, but only the Solicitor General argued.
Later, Assistant Solicitor General Vicente V. Mendoza also appeared and co-signed all the subsequent pleadings
and memoranda for respondents.
After the hearings of September 26 and 29 and October 6, 1972, the parties were required to file their respective
memoranda. On November 9, 1972 petitioners in all the filed their consolidated 109-page memorandum, together
with the answers, contained in 86 pages, to some 33 questions posed by the Court in its resolution of September
29, 1972, and later, on December 1, 1972, an 88-page reply to the memorandum of respondents, with annexes. In a
separate Manifestation of Compliance and Submission filed simultaneously with their reply, petitioners stressed that:
4. That undersigned counsel for Petitioners did not ask for any extension of the period within which
to file the Reply Memorandum for Petitioners, despite overwhelming pressure of work, because
a. every day of delay would mean one day more of indescribable misery and anguish on the part of
Petitioners and their families; .
b. any further delay would only diminish whatever time is left more than a months time within
which this Court can deliberate on and decide these petitions, having in mind some irreversible
events which may plunge this nation into an entirely new constitutional order, namely, the approval
of the draft of the proposed Constitution by the Constitutional Convention and the plebiscite was
scheduled on January 15, 1973;
c. the proposed Constitution, if ratified might prejudice these petitions, in view of the following
transitory provision:
All proclamations, orders, decrees , instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and
effective even after the lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by the regular National
Assembly. (Article XVII, sec. 3, par. 2 of the proposed Constitution).
5. In view of the fact that they were arrested and detained allegedly in keeping with the existing
Constitution, it is only humane and just that these petitions to be accorded preference under Rule
22, section 1 of the Rules of Court be disposed of while there is still time left, in accordance with
the present Constitution and not in accordance with a new constitutional order being ushered in,
under the aegis of a martial rule, the constitutionality and validity of which is the very point at issue in
the instant petitions;
6. Since, according to the unanimous view of the authorities, as cited in their Memorandum, the
overriding purpose of martial law is and cannot go beyond the preservation of the constitutional
status quo, and not to alter it or hasten its alteration, it would be extremely unjust and inhuman, to
say the least, to allow these petitions for the great writ of liberty to be imperiled, by virtue of a new
Constitution submission and ratification of which are being pressed under martial law that
would purportedly ratify all Executive edicts issued and acts done under said regime something that
has never been done as far as is known in the entire history of the Anglo-American legal system;
(pp. 414-416, Rollo, L-35539.)
At this juncture, it may be stated that as of October 11, 1972, the following petitioners had already withdrawn:
Amando Doronila, Hernando J. Abaya, Ernesto Granada, Luis Beltran, Bren Guiao, Ruben Cusipag, Willie Baun,
Tan Chin Hian and Veronica L. Yuyitung; hence, of the original nine cases with a total of 32 petitioners,
3
only the six
above-entitled cases remain with 18 petitioners.
4
The remaining petitioners are: Joaquin P. Roces, Teodoro M. Locsin,
Sr., Rolando Fadul, Rosalind Galang, Go Eng Guan, Maximo V. Soliven, Renato Constantino, Luis R. Mauricio, Jose W.
Diokno thru Carmen Diokno, Napoleon G. Rama, Jose Mari Velez, Benigno S. Aquino, Ramon V. Mitra, Jr., Francisco S.
Rodrigo, Juan L. Mercado, Roberto Ordoez, Manuel Almario and Ernesto Rondon but only Senators Diokno and Aquino
are still in confinement, the rest having been released under conditions hereinafter to be discussed. The case of petitioner
Garcia in G. R. No. L-35547 is deemed abated on account of his death.
Over the opposition of these remaining petitioners, respondents counsel was given several extensions of their
period to file their memorandum, and it was not until January 10, 1973 that they were able to file their reply of 35
pages. Previously, their memorandum of 77 pages was filed on November 17, 1972. Thus, the cases were declared
submitted for decision only on February 26, 1973, per resolution of even date, only to be reopened later, as will be
stated anon.
In the meanwhile, practically the same counsel for petitioners in these cases engaged the government lawyers in
another and separate transcendental judicial tussle of two stages relative to the New Constitution. On December 7,
1972, the first of the so-called Plebiscite Cases (G. R. No. L-35925, Charito Planas vs. Comelec, G. R. No.
L-35929, Pablo C. Sanidad vs. Comelec, G. R. No. L-35940, Gerardo Roxas et al. vs. Comelec, G. R. No. L-35941,
Eddie B. Monteclaro vs. Comelec, G. R. No. L-35942, Sedfrey A. Ordoez vs. Treasurer, G. R. No. L-35948, Vidal
Tan vs. Comelec, G. R. No. L-35953, Jose W. Diokno et als. vs. Comelec, G. R. No. L-35961, Jacinto Jimenez vs.
Comelec, G. R. No. L-35965, Raul M. Gonzales vs. Comelec and G. R. No. L-35979, Ernesto Hidalgo vs. Comelec)
was filed. These cases took most of the time of the Court until January 22, 1973, when they were declared moot and
academic because of the issuance of Proclamation 1102 on January 17, 1973, but on January 20, 1973, as a
sequel to the Plebiscite Cases, Josue Javellana filed Case No. G. R. No. L-36142 against the Executive Secretary
and the Secretaries of National Defense, Justice and Finance. This started the second series of cases known as the
Ratification Cases, namely, said G. R. No. L36142 and G. R. No. L-36164, Vidal Tan vs. The Executive Secretary et
al., G. R. No.
L-36165, Gerardo Roxas et al. vs. Alejandro Melchor etc. et al., G. R. No. L-36236, Eddie B. Monteclaro vs. The
Executive Secretary, and G. R. No. L-36283, Napoleon V. Dilag vs. The Honorable Executive Secretary. The main
thrust of these petitions was that the New Constitution had not been validly ratified, hence the Old Constitution
continued in force and, therefore, whatever provisions the New Constitution might contain tending to validate the
proclamations, orders, decrees, and acts of the incumbent President which are being relied upon for the
apprehension and detention of petitioners, have no legal effect. In any event, the advent of a new constitution
naturally entailed the consequence that any question as to the legality of the continued detention of petitioners or of
any restraint of their liberties may not be resolved without taking into account in one way or another the pertinent
provisions of the new charter. Accordingly, the resolution of these two series of cases became a prejudicial matter
which the Court had to resolve first. It was not until March 31, 1973 that they were decided adversely to the
petitioners therein and it was only on April 17, 1973 that entry of final judgment was made therein.
From April 18, 1973, the membership of the Court was depleted to nine, in view of the retirement, effective on said
date, of then Chief Justice Roberto Concepcion. With its nine remaining members, doubts were expressed as to
whether or not the Court could act on constitutional matters of the nature and magnitude of those raised in these
cases, the required quorum for the resolution of issues of unconstitutionality under the New Constitution being ten
members. (Section 2 (2), Article IX, Constitution of the Philippines of 1973). Prescinding from this point, it is a fact
that even if it is not required expressly by the Constitution, by the Courts own policy which the Constitution
authorizes it to adopt, all cases involving constitutional questions are beard en banc in which the quorum and at the
same time the binding vote is of eight Justices. With only nine members out of a possible membership of fifteen, it
was not exactly fair for all concerned that the court should act, particularly in a case which in truth does not involve
only those who are actual parties therein but the whole people as well as the Government of the Philippines. So, the
Court, even as it went on informally discussing these cases from time to time, preferred to wait for the appointment
and qualification of new members, which took place only on October 29, 1973, when Justices Estanislao Fernandez,
Cecilia Muoz Palma and Ramon Aquino joined the Court.
Meantime, subsequent to the resolution of February 26, 1973, declaring these cases submitted for decision, or,
more particularly on June 29, 1973, counsel for petitioner Carmen I. Diokno in G. R. No. filed a 99-page
Supplemental Petition and Motion for Immediate Release which the Court had to refer to the respondents, on whose
behalf, the Solicitor General filed an answer on July 30, 19,73. On August 14, 1973, counsel for petitioner Diokno
filed a motion asking that the said petition and motion be set for hearing, which the Court could not do, in view
precisely of the question of quorum. As a matter of fact, in the related case of Benigno S. Aquino, Jr. vs. Military
Commission No. 2 et al., G. R. No. L-37364, further reference to which will be made later, a preliminary hearing had
to be held by the Court on Sunday, August 24, 1973, on the sole question of whether or not with its membership of
nine then, the Court could act on issues of constitutionality of the acts of the President.
At this point, it may be mentioned incidentally that thru several repeated manifestations and motions, Counsel
Francis E. Garchitorena of Petitioner Diokno invited the attention of the Court not only to alleged denial to his client
of "the essential access of and freedom to confer and communicate with counsel" but also to alleged deplorable
sub-human conditions surrounding his detention. And in relation to said manifestations and motions, on February
19,1973, said petitioner, Diokno, together with petitioner Benigno S. Aquino and joined by their common counsel,
Senator Lorenzo M. Taada filed with this Court a petition for mandamus praying that respondents be commanded
"to permit petitioner Taada to visit and confer freely and actively with petitioners Diokno and Aquino at reasonable
hours pursuant to the provisions of RA 857 and RA 1083 and in pursuance of such decision, (to direct said
respondents) (1) to clear the conference room of petitioners of all representatives of the Armed Forces and all
unwanted third persons, and prohibit their presence; (2) to remove or cause the removal of all listening devices and
other similar electronic equipment from the conference room of petitioners, with the further direction that no such
instruments be hereafter installed, and (3) to desist from the practice of examining (a) the notes taken by petitioner
Taada of his conferences with petitioners Diokno and Aquino; and (b) such other legal documents as petitioner
Taada may bring with him for discussion with said petitioners." (G. R. No. L-36315). For obvious reasons, said
petition will be resolved in a separate decision. It may be stated here, however, that in said G. R. No. L-36315, in
attention to the complaint made by Senator Taada in his Reply dated April 2, 1973, that Mesdames Diokno and
Aquino were not being allowed to visit their husbands, and, worse, their very whereabouts were not being made
known to them, on April 6, 1973, after hearing the explanations of counsel for therein respondents, the Court issued
the following resolution:
Upon humanitarian considerations the Court RESOLVED unanimously to grant, pending further
action by this Court, that portion of the prayer in petitioners Supplement and/or Amendment to
Petition filed on April 6, 1973 that the wives and minor children of petitioners Diokno and Aquino be
allowed to visit them, subject to such precautions as respondents may deem necessary.
We have taken pains to recite all the circumstances surrounding the progress of these cases from their inception in
order to correct the impression conveyed by the pleadings of petitioner Diokno, that their disposition has been
unnecessarily, it not deliberately, delayed. The Court cannot yield to anyone in being concerned that individual rights
and liberties guaranteed by the fundamental law of the land are duly protected and safeguarded. It is fully cognizant
of how important not only to the petitioners but also to the maintainance of the rule of law is the issue of legality of
the continued constraints on the freedoms of petitioners. Under ordinary circumstances, it does not really take the
Court much time to determine whether a deprivation of personal liberty is legal or illegal. But, aside from the unusual
procedural setbacks related above, it just happens that the basic issues to resolve here do not affect only the
individual rights of petitioners. Indeed, the importance of these cases transcends the interests of those who, like
petitioners, have come to the Court. Actually, what is directly involved here is the issue of the legality of the existing
government itself. Accordingly, We have to act with utmost care. Besides, in a sense, the legality of the Courts own
existence is also involved here, and We do not want anyone to even suspect We have hurried precipitately to
uphold Ourselves.
In addition to these considerations, it must be borne in mind that there are thousands of other cases in the Court
needing its continued attention. With its clogged docket. the Court, could ill afford to give petitioners any preference
that. would entail corresponding injustice to other litigants before it.
What is more, under the New Constitution, the administrative jurisdiction overall lower courts, including the Court
Appeals, has been transferred from the Department of Justice to the Supreme Court, and because that Department
refrained from attending to any administrative function over the courts since January 17, 1973, on April 18, 1973,
after the Ratification Cases became final, We found in Our hands a vast accumulation of administrative matters
which had to be acted upon without further delay, if the smooth and orderly functioning of the courts had to be
maintained. And, of course. the Court has to continuously attend to its new administrative work from day to day,
what with all kinds of complaints and charges being filed daily against judges, clerks of court and other officers and
employees of the different courts all over the country, which the Court en banc has to tackle. It should not be
surprising at all that a great portion of our sessions en banc has to be devoted to the consideration and disposition
of such administrative matters.
Furthermore, in this same connection, account must also be taken of the fact that the transfer of the administrative
functions of the Department to the Court naturally entailed problems and difficulties which consumed Our time, if
only because some of the personnel had to acquaint themselves with the new functions entrusted to them, while
corresponding adjustments had to be made in the duties and functions of the personnel affected by the transfer.
PRELIMINARY ISSUES
Now, before proceeding to the discussion and resolution of the issues in the pending petitions, two preliminary
matters call for disposition, namely, first, the motion of petitioner Jose W. Diokno, thru counsel Senator Taada, to
be allowed to withdraw his basic petition and second, the objection of petitioner, Francisco "Soc" Rodrigo, to the
Courts considering his petition as moot and academic as a consequence of his having been released from his place
of confinement in Fort Bonifacio. Related to the latter is the express manifestation of the other petitioners: Joaquin
P. Roces, Teodoro M. Locsin, Sr., Rolando Fadul, Rosalind Galang, Go Eng Guan, Maximo V. Soliven, Renato
Constantino, Luis R. Mauricio, Napoleon G. Rama, Jose Mari Velez. Ramon V. Mitra, Jr., Juan L. Mercado, Roberto
Ordoez, Manuel Almario and Ernesto Rondon to the effect that they remain as petitioners, notwithstanding their
having been released (under the same conditions as those imposed on petitioner Rodrigo thereby implying that they
are not withdrawing, as, in fact, they have not withdrawal their petitions and would wish them resolved on their
merits.(Manifestation of counsel for petitioners dated March 15, 1974.)
I
Anent petitioner Dioknos motion to withdraw, only seven members of the Court, namely, Chief Justice Makalintal
and Justices Zaldivar, Fernando, Teehankee, Muoz Palma, Aquino and the writer of this opinion, voted to grant the
same. Said number being short of the eight votes required for binding action of the Court en banc even in an
incident, pursuant to Section 11 of Rule 56, the said motion is denied, without prejudice to the right of each member
of the Court to render his individual opinion in regard to said motion.
5
One of the reason vigorously advanced by petitioner Diokno in his motion to withdraw is that he cannot submit his
case to the Supreme Court as it is presently constituted, because it is different from the one in which he filed his
petition, and that, furthermore, he is invoking, not the present or New Constitution of the Philippines the incumbent
Justices have now sworn to protect and defend but the Constitution of 1935
6
under which they were serving before.
Indeed, in the "Manifestation of Compliance and Submission" filed by his counsel as early as December 1, 1973, a similar
feeling was already indicated, as may be gathered from the portions thereof quoted earlier in this opinion.
Had petitioner reiterated and insisted on the position asserted by him in said manifestation shortly after the
ratification of the New Constitution on January 17, 1973 or even later, after the decision of this Court in the
Ratification Cases became final on April 17, 1973, perhaps, there could have been some kind of justification for Our
then and there declaring his petition moot and academic, considering his personal attitude of refusing to recognize
the passing out of the 1935 constitution and of the Supreme Court under it. But the fact is that as late as June 29,
1973, more than six months after the ratification of the New Constitution and more than two months after this Court
had declared that "there is no more judicial obstacle to the New Constitution being considered as in force and
effect", petitioner Diokno, thru counsel Taada, riled a "Supplemental Petition and Motion for Immediate Release"
wherein nary a word may be found suggesting the point that both the Constitution he is invoking and the Court he
has submitted his petition to have already passed into inexistence. On the contrary, he insisted in this last motion
that "an order be issued (by this Court) directing respondents to immediately file charges against him if they have
evidence supporting the same." Be it noted, in this connection, that by resolution of the Court of June 1, 1973, it had
already implemented the provisions on the Judiciary of the New Constitution and had constituted itself with its nine
members into the First Division, thereby making it unmistakably clear that it was already operating as the Supreme
Court under the New Constitution. The fact now capitalized by petitioner that the Justices took the oath only on
October 29, 1973 is of no signer, the truth being that neither the Justices continuation in office after the New
Constitution took effect nor the validity or propriety of the Courts resolution of June 1, 1973 just mentioned were
questioned by him before. Accordingly, the Motion in his motion to withdraw relative to the New Constitution and the
present Supreme Court appear to be obvious afterthoughts intended only to tend color to his refusal to have the
issue of alleged illegality of his detention duly resolved, realizing perchance the untenability thereof and the
inevitability of the denial of his petition, albeit none of this will ever be admitted, as may be gathered from his
manifestation that he would not want to have anything to do with any ruling of the Court adverse to his pretensions.
Just the same, the new oaths of the Justices and the applicability hereto of the Old and the New Constitution will be
discussed in another part of this opinion, if only to satisfy the curiosity of petitioner.
Although the other petitioners have not joined the subject withdrawal motion, it might just as well be stated, for
whatever relevant purpose it may serve, that, with particular reference to petitioner Rodrigo, as late as November
27,1973, after three new justices were added to the membership of the Court in partial obedience to the mandate of
the New Constitution increasing its total membership to fifteen, and after the Court had, by resolution of November
15, 1973, already constituted itself into two divisions of six Justices each, said petitioner filed a Manifestation "for the
purpose of showing that, insofar as (he) herein petitioner is concerned, his petition forhabeas corpus is not moot and
academic." Notably, this manifestation deals specifically with the matter of his "conditional release" as being still a
ground for habeas corpus but does not even suggest the fundamental change of circumstances relied upon in
petitioner Dioknos motion to withdraw. On the contrary, said manifestation indicates unconditional submission of
said petitioner to the jurisdiction of this Court as presently constituted. Of similar tenor is the manifestation of
counsel for the remaining petitioners in these cases dated March 15, 1974. In other words, it appears quite clearly
that petitioners should be deemed as having submitted to the jurisdiction of the Supreme Court as it is presently
constituted in order that it may resolve their petitions for habeas corpus even in the light of the provisions of the New
Constitution.
II
Coming now to the conditions attached to the release of the petitioners other than Senators Diokno and Aquino, it is
to be noted that they were all given identical release papers reading as follows:
HEADQUARTERS
5TH MILITARY INTELLIGENCE GROUP, ISAFP
Camp General Emilio Aguinaldo
Quezon City
M56P 5 December 1972
SUBJECT: Conditional Release
TO: Francisco Soc Rodrigo
1. After having been arrested and detained for subversion pursuant to Proclamation No. 1081 of the
President of the Philippines in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines, dated 21 September 1972, you are hereby conditionally released.
2. You are advised to abide strictly with the provisions of Proclamation No. 1081 and the ensuing
L0Is. Any violation of these provisions would subject you to immediate arrest and confinement.
3. Your investigation will continue following a schedule which you will later on be informed. You are
advised to follow this schedule strictly.
4. You are not allowed to leave the confines of Greater Manila Area unless specifically authorized by
this Office indicating the provincial address and expected duration of stay thereat. Contact this Office
through telephone No. 97-17-56 when necessary.
5. You are prohibited from giving or participating in any interview conducted by any local or foreign
mass media representative for purpose of publication and/or radio/TV broadcast.
6. Be guided accordingly.
(SGD.) MARIANO G. MIRANDA
Lt. Colonel PA
Group Commander
P L E D G E
THIS IS TO CERTIFY that I have read and understood the foregoing conditional release.
I HEREBY PLEDGE to conduct myself accordingly and will not engage in any subversive activity. I will immediately
report any subversive activity that will come to my knowledge.
(SGD.) F. RODRIGO
Address: 60 Juana Rodriguez
Quezon City
Tel No. 70-25-66; 7049-20
70-27-55
It is the submission of these petitioners that their release under the foregoing conditions is not absolute, hence their
present cases before the Court have not become moot and academic and should not be dismissed without
consideration of the merits thereof. They claim that in truth they have not been freed, because actually, what has
been done to them is only to enlarge or expand the area of their confinement in order to include the whole Greater
Manila area instead of being limited by the boundaries of the army camps wherein they were previously detained.
They say that although they are allowed to go elsewhere, they can do so only if expressly and specifically permitted
by the army authorities, and this is nothing new, since they could also go out of the camps before with proper
passes. They maintain that they never accepted the above conditions voluntarily. In other words, it is their position
that they are in actual fact being still so detained and restrained of their liberty against their will as to entitle them in
law to the remedy of habeas corpus.
We find merit in this particular submittal regarding the reach of habeas corpus. We readily agree that the
fundamental law of the land does not countenance the diminution or restriction of the individual freedoms of any
person in the Philippines without due process of law. No one in this country may suffer, against his will, any kind or
degree of constraint upon his right to go to any place not prohibited by law, without being entitled to this great writ of
liberty, for it has not been designed only against illegal and involuntary detention in jails, prisons and concentration
camps, but for all forms and degrees of restraint, without authority of law or the consent of the person concerned,
upon his freedom to move freely, irrespective of whether the area within which he is confined is small or large, as
long as it is not co-extensive with that which may be freely reached by anybody else, given the desire and the
means. More than half a century ago in 1919, this Court already drew the broad and all-encompassing scope
of habeas corpus in these unequivocal words: "A prime specification of an application for a writ of habeas corpus is
restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manners of
involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient."
6
* There is no reason at all at this time, hopefully there will
never be any in the future, to detract a whit from this noble attitude. Definitely, the conditions under which petitioners have
been released fall short of restoring to them the freedom to which they are constitutionally entitled. Only a showing that
the imposition of said conditions is authorized by law can stand in the way of an order that they be immediately and
completely withdrawn by the proper authorities so that the petitioners may again be free men as we are.
And so, We come to the basic question in these cases: Are petitioners being detained or otherwise restrained of
liberty, evidently against their will, without authority of law and due process?
THE FACTS
Aside from those already made reference to above, the other background facts of these cases are as follows:
On September 21, 1972, President Ferdinand E. Marcos
7
signed the following proclamation:
PROCLAMATION NO. 1081
PROCLAIMING A STATE OF MARTIAL LAW
IN THE PHILIPPINES
WHEREAS, on the basis of carefully evaluated and verified information, it is definitely established
that lawless elements who are moved by a common or similar ideological conviction, design,
strategy and goal and enjoying the active moral and material support of a foreign power and being
guided and directed by intensely devoted, well trained, determined and ruthless groups of men and
seeking refuge under the protection of our constitutional liberties to promote and attain their ends,
have entered into a conspiracy and have in fact joined and banded their resources and forces
together for the prime purpose of, and in fact they have been and are actually staging, undertaking
and waging an armed insurrection and rebellion against the Government of the Republic of the
Philippines in order to forcibly seize political and state power in this country, overthrow the duly
constituted Government, and supplant our existing political, social, economic and legal order with an
entirely new one whose form of government, whose system of laws, whose conception of God and
religion, whose notion of individual rights and family relations, and whose political, social, economic,
legal and moral precepts are based on the Marxist-Leninist-Maoist teachings and beliefs;
WHEREAS, these lawless elements, acting in concert through seemingly innocent and harmless,
although actually destructive, front organizations which have been infiltrated or deliberately formed
by them, have continuously and systematically strengthened and broadened their memberships
through sustained and careful recruiting and enlistment of new adherents from among our
peasantry, laborers, professionals, intellectuals, students, and mass media personnel, and through
such sustained and careful recruitment and enlistment have succeeded in spreading and expanding
their control and influence over almost every segment and level of our society throughout the land in
their ceaseless effort to erode and weaken the political, social, economic, legal and moral
foundations of our existing Government, and to influence, manipulate and move peasant, labor,
student and terroristic organizations under their influence or control to commit, as in fact they have
committed and still are committing, acts of violence, depredations, sabotage and injuries against our
duly constituted authorities, against the members of our law enforcement agencies, and worst of all,
against the peaceful members of our society;
WHEREAS, in the fanatical pursuit of their conspiracy and widespread acts of violence,
depredations, sabotage and injuries against our people, and in order to provide the essential
instrument to direct and carry out their criminal design and unlawful activities, and to achieve their
ultimate sinister objectives, these lawless elements have in fact organized, established and are now
maintaining a Central Committee, composed of young and dedicated radical students and
intellectuals, which is charged with guiding and directing the armed struggle and propaganda
assaults against our duly constituted Government, and this Central Committee is now imposing its
will and asserting its sham authority on certain segments of our population, especially in the rural
areas, through varied means of subterfuge, deceit, coercion, threats, intimidations, machinations,
treachery, violence and other modes of terror, and has been and is illegally exacting financial and
other forms of contributes from our people to raise funds and material resources to support its
insurrectionary and propaganda activities against our duly constituted Government and against our
peace-loving people;
WHEREAS, in order to carry out, as in fact they have carried out, their premeditated plan to stage,
undertake and wage a full scale armed insurrection and rebellion in this country, these lawless
elements have organized, established and are now maintaining a well trained, well armed and highly
indoctrinated and greatly expanded insurrectionary force, popularly known as the New Peoples
Army which has since vigorously pursued and still is vigorously pursuing a relentless and ruthless
armed struggle against our duly constituted Government and whose unmitigated forays, raids,
ambuscades assaults and reign of terror and acts of lawlessness in the rural areas and in our urban
centers brought about the treacherous and cold-blooded assassination of innocent civilians, military
personnel of the Government and local public officials in many parts of the country, notably in the
Cagayan Valley, in Central Luzon, in the Southern Tagalog Region, in the Bicol Area, in the Visayas
and in Mindanao and whose daring and wanton guerrilla activities have generated and fear and
panic among our people, have created a climate of chaos and disorder, produced a state of political,
social, psychological and economic instability in our land, and have inflicted great suffering and
irreparable injury to persons and property in our society;
WHEREAS, these lawless elements, their cadres, fellowmen, friends, sympathizers and supporters
have for many years up to the present time been mounting sustained, massive and destructive
propaganda assaults against our duly constituted Government its intrumentalities, agencies and
officials, and also against our social, political, economic and religious institutions, through the
publications, broadcasts and disseminations of deliberately slanted and overly exaggerated news
stories and news commentaries as well as false , vile, foul and scurrilous statements, utterances,
writings and pictures through the press-radio-television media and through leaflets, college campus
newspapers and some newspapers published and still being published by these lawless elements,
notably the Ang Bayan, Pulang Bandila and the Ang Komunista, all of which are clearly well-
conceived, intended and calculated to malign and discredit our duly constituted Government, its
instrumentalities, agencies and officials before our people, and thus undermine and destroy the faith
and loyalty and allegiance of our people in and alienate their support for their duly constituted
Government, its instrumentalities, agencies and officials, and thereby gradually erode and weaken
as in fact they had so eroded and weakened the will of our people to sustain and defend our
Government and our democratic way of life;
WHEREAS, these lawless elements having taken up arms against our duly constituted Government
and against our people, and having committed and are still committing acts of armed insurrection
and rebellion consisting of armed raids, forays, sorties, ambushes, wanton acts of murders,
spoilage, plunder, looting, arsons, destruction of public and private buildings, and attacks against
innocent and defenseless civilian lives and property, all of which activities have seriously
endangered and continue to endanger public order and safety and the security of the nation, and
acting with cunning and manifest precision and deliberation and without regard to the health, safety
and well-being of the people, are now implementing their plan to cause wide spread, massive and
systematic destruction and paralyzation of vital public utilities and service particularly water systems,
sources of electrical power, communication and transportation facilities, to the great detriment,
suffering, injury and prejudice of our people and the nation and to generate a deep psychological
fear and panic among our people;
WHEREAS, the Supreme Court in the cases brought before it, docketed as G. R. Nos. L-33964, L-
33965, L-33973, L-33982, L-34004, L-34013, L-34039, L-34265, and L-34339, as a consequence of
the suspension of the privilege of the writ of habeas corpus by me as President of the Philippines in
my Proclamation No. 889, dated August 21, 1971, as amended, has found that in truth and in fact
there exists an actual insurrection and rebellion in the country by a sizeable group of men who have
publicly risen in arms to overthrow the Government. Here is what the Supreme Court said in its
decision promulgated on December 11, 1971:
... our jurisprudence attests abundantly to the Communist activities in the Philippines, especially in Manila, from the
late twenties to the early thirties, then aimed principally at incitement to sedition or rebellion, as the immediate
objective. Upon the establishment of the Commonwealth of the Philippines, the movement seemed to have warned
notably; but, the outbreak of World War II in the Pacific and the miseries, the devastation and havoc, and the
proliferation of unlicensed firearms concomitant with the military occupation of the Philippines and its subsequent
liberation, brought about, in the late forties, a resurgence of the Communist threat, with such vigor as to be able to
organize and operate in Central Luzon an army called HUKBALAHAP, during the occupation, and renamed
Hukbong Mapagpalaya ng Bayan (HMB) after liberation which clashed several times with the Armed Forces of
the Republic. This prompted then President Quirino to issue Proclamation No. 210, dated October 22, 1950,
suspending the privilege of the writ of habeas corpus the validity of which was upheld in Montenegro v. Castaeda.
Days before the promulgation of said Proclamation, or on October 18, 1950, members of the Communist Politburo in
the Philippines were apprehended in Manila. Subsequently accused and convicted of the crime of rebellion, they
served their respective sentences.
The fifties saw a comparative lull in Communist activities, insofar as peace and order were
concerned. Still, on June 20, 1957, Republic Act No. 1700, otherwise known as the Anti-Subversion
Act, was approved, upon the grounds stated in the very preamble of said statute that
... the Communist Party of the Philippines, although purportedly a political party, is in fact an
organized conspiracy to overthrow the Government of the Republic of the Philippines, not only by
force and violence but also by deceit, subversion and other illegal means, for the purpose of
establishing in the Philippines a totalitarian regime subject to alien domination and control,
... the continued existence and activities of the Communist Party of the Philippines constitutes a
clear, present and grave danger to the security of the Philippines; and
... in the face of the organized, systematic and persistent subversion, national in scope but
international in direction, posed by the Communist Party of the Philippines and its activities, there is
urgent need for special legislation to cope with this continuing menace to the freedom and security of
the country ....
In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the Senate Ad
Hoc Committee of Seven copy of which Report was filed in these cases by the petitioners herein

The years following 1963 saw the successive emergence in the country of several mass
organizations, notably the Lapiang Manggagawa (now the Socialist Party of the Philippines) among
the workers, the Malayang Samahan ng mga Magsasaka (MASAKA) among the peasantry; the
Kabataang Makabayan (KM) among the youth/students; and the Movement for the Advancement of
Nationalism (MAN) among the intellectuals/professionals, the PKP has exerted all-out effort to
infiltrate, influence and utilize these organizations in promoting its radical brand of nationalism.
Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups, one of
which composed mainly of young radicals, constituting the Maoist faction reorganized the
Communist Party of the Philippines early in 1969 and established a New Peoples Army. This faction
adheres to the Maoist concept of the Protracted Peoples War or War of National Liberation. Its
Programme for a Peoples Democratic Revolution states, inter alia:
The Communist Party of the Philippines is determined to implement its general programme for a
peoples democratic revolution. All Filipino communists are ready to sacrifice their lives for the
worthy cause of achieving the new type of democracy, of building a new Philippines that is genuinely
and completely independent, democratic, united, just and prosperous ...
The central task of any revolutionary movement is to seize political power. The Communist Party of
the Philippines assumes this task at a time that both the international and national situations are
favorable, to taking the road of armed
revolution ...
In the year 1969, the NPA had according to the records of the Department of National Defense
conducted raids, resorted to kidnappings and taken part in other violent incidents numbering over
230, in which it inflicted 404 casualties, and, in turn, suffered 243 losses. In 1970, its record of
violent incidents was about the same, but the NPA casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists, whether they belong to the traditional
group or to the Maoist faction, believe that force and violence are indispensable to the attainment of
their main and ultimate objective, and act in accordance with such belief, although they disagree on
the means to be used at a given time and in a particular place; and (b) there is a New Peoples
Army, other, of course, than the Armed Forces of the Republic and antagonistic thereto. Such New
Peoples Army is per se proof of the existence of the rebellion, especially considering that its
establishment was announced publicly by the reorganized CPP. Such announcement is in the nature
of a public challenge to the duly constitution Authorities and may be likened to a declaration of war,
sufficient to establish a war status or a condition of belligerency even before the actual
commencement of hostilities.
We entertain therefore, no doubts about the existence of a sizeable group of men who have publicly
risen in arms to overthrow the Government and have thus been and still are engage in rebellion
against the Government of the Philippines.
WHEREAS, these lawless elements have to a considerable extent succeeded in impeding our duly
constituted authorities from performing their functions and discharging their duties and
responsibilities in accordance with our laws and our Constitution to the great damage, prejudice and
detriment of the people and the nation;
WHEREAS, it is evident that there is throughout the land a state of anarchy and lawlessness, chaos
and disorder, turmoil and destruction of a magnitude equivalent to an actual war between the forces
of our duly constituted Government and the New Peoples Army and their satellite organizations
because of the unmitigated forays, raids, ambuscades, assaults, violence, murders, assassinations,
acts of terror, deceits, coercions, threats, intimidations, treachery, machinations, arsons, plunders
and depredations committed and being committed by the aforesaid lawless elements who have
pledged to the whole nation that they will not stop their dastardly effort and scheme until and unless
they have fully attained their primary and ultimate purpose of forcibly seizing political and state
power in this country by overthrowing our present duly constituted Government, by destroying our
democratic way of life and our established secular and religious institutions and beliefs, and by
supplanting our existing political, social, economic, legal and moral order with an entirely new one
whose form of government, whose motion of individual rights and family relations, and whose
political, social, economic and moral precepts are based on the Marxist-Leninist-Maoist teachings
and beliefs;
WHEREAS, the Supreme Court in its said decision concluded that the unlawful activities of the
aforesaid lawless elements actually pose a clear, present and grave danger to public safety and the
security of the nation and in support of that conclusion found that:
... the Executive had information and reports subsequently confirmed, in many by the above-
mentioned Report of the Senate Ad Hoc Committee of Seven - to the effect that the Communist
Party of the Philippines does not merely adhere to Lenins idea of a swift armed uprising that it has,
also, adopted Ho Chi Minhs terrorist tactics and resorted to the assassination of uncooperative local
officials that, in line with this policy, the insurgents have killed 5 mayors, 20 barrio captains and 3
chiefs of police; that there were fourteen (14) meaningful bombing incidents in the Greater Manila
Area in 1970; that the Constitutional Convention Hall was bombed on June 12, 1971; that, soon after
the Plaza Miranda incident, the NAWASA main pipe at the Quezon City-San Juan boundary was
bombed; that this was followed closely by the bombing of the Manila City Hall, the COMELEC
Building, the Congress Building and the MERALCO sub-station at Cubao, Quezon City; and that the
respective residences of Senator Jose J. Roy and Congressman Eduardo Cojuangco were, likewise,
bombed, as were the MERALCO main office premises, along Ortigas Avenue, and the Doctors
Pharmaceuticals, Inc. Building, in Caloocan City.
... the reorganized Communist Party of the Philippines has, moreover, adopted Maos concept of
protracted peoples war, aimed at the paralyzation of the will to resist of the Government, of the
political, economic and intellectual leadership, and of the people themselves; that conformably to
such concept, the Party has placed special emphasis upon a most extensive and intensive program
of subversion be the establishment of front organizations in urban centers, the organization of armed
city partisans and the infiltration in student groups, labor unions, and farmer and professional
groups; that the CPP has managed to infiltrate or establish and control nine (9) major labor
organizations; that it has exploited the youth movement and succeeded in making Communist fronts
of eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30)
mass organizations actively advancing the CPP interests, among which are the Malayang Samahan
ng Magsasaka(MASAKA), the Kabataang Makabayan (KM), the Movement for the Advancement of
Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM)
and the Malayang Pagkakaisa ng Kabataang Pilipino (MPKP); that, as of August, 1971, the KM had
two hundred forty-five (245) operational chapters throughout the Philippines of which seventy-three
(73) were in the Greater Manila Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon,
forty-two (42) in the Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had
recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-three (33) ended
in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these
actions were organized, coordinated or led by the aforementioned front organizations; that the
violent demonstrations were generally instigated by a small, but well-trained group of armed
agitators; that the number of demonstrations heretofore staged in 1971 has already exceeded those
of 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of
fifteen (15) persons and the injury of many more.
Subsequent events ... have also proven ... the threat to public safety posed by the New Peoples
Army. Indeed, it appears that, since August 21, 1971, it had in Northern Luzon six (6) encounters
and staged one (1) raid, in consequences of which seven soldiers lost their lives and two (2) others
were wounded, whereas the insurgents suffered five (5) casualties; that on August 26, 1971, a well-
armed group of NPA, trained by defector Lt. Victor Corpus, attacked the very command post of TF
LAWIN in Isabela, destroying two (2) helicopters and one (1) plane, and wounding one (1) soldier;
that the NPA had in Central Luzon a total of four (4) encounters, with two (2) killed and three (3)
wounded on the side of the Government, one (1) BSDU killed and three (3) KMSDK leader, an
unidentified dissident, and Commander Panchito, leader of the dissident group were killed that on
August 26, 1971, there was an encounter in the barrio of San Pedro, Iriga City, Camarines Sur,
between the PC and the NPA, in which a PC and two (2) KM members were killed; that the current
disturbances in Cotabato and the Lanao provinces have been rendered more complex by the
involvement of the CPP/NPA, for, in mid-1971, a KM group, headed by Jovencio Esparagoza,
contacted the Higaonan tribes, in their settlement in Magsaysay, Misamis Oriental, and offered them
books, pamphlets and brochures of Mao Tse Tung, as well as conducted teach-ins in the
reservation; that Esparagoza was reportedly killed on September 22, 1971, in an operation of the PC
in said reservation; and that there are now two (2) NPA cadres in Mindanao.
It should, also be noted that adherents of the CPP and its front organizations are, according to
intelligence findings, definitely capable of preparing powerful explosives out of locally available
materials; that the bomb used in the Constitutional Convention Hall was a Claymore mine, a
powerful explosive device used by the U.S. Army, believed to have been one of many pilfered from
the Subic Naval Base a few days before; that the President had received intelligence information to
the effect that there was a July-August Plan involving a wave of assassinations, kidnappings,
terrorism and mass destruction of property and that an extraordinary occurrence would signal the
beginning of said event; that the rather serious condition of peace and order in Mindanao,
particularly in Cotabato and Lanao, demanded the presence therein of forces sufficient to cope with
the situation; that a sizeable part of our armed forces discharges other functions, and that the
expansion of the CPP activities from Central Luzon to other parts of the country, particularly Manila
and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and the Bicol Region,
required that the rest of our armed forces be spread thin over a wide area.
WHEREAS, in the unwavering prosecution of their revolutionary war against the Filipino people and
their duly constituted Government, the aforesaid lawless elements have, in the months of May, June
and July, 1972, succeeded in bringing and introducing into the country at Digoyo Point, Palanan,
Isabela and at other undetermined points along the Pacific coastline of Luzon, a substantial quantity
of war material consisting of M-14 rifles estimated to be some 3,500 pieces, several dozens of 40
mm rocket launchers which are said to be Chicom copies of a Russian prototype rocket launcher,
large quantities of 80 mm rockets and ammunitions, and other combat paraphernalia, of which war
material some had been discovered and captured by government military forces, and the bringing
and introduction of such quantity and type of war material into the country is a mute but eloquent
proof of the sinister plan of the aforesaid lawyers elements to hasten the escalation of their present
revolutionary war against the Filipino people and their legitimate Government;
WHEREAS, in the execution of their overall revolutionary plan, the aforesaid lawless elements have
prepared and released to their various field commanders and Party workers a document captioned
REGIONAL PROGRAM OF ACTION 1972, a copy of which was captured by elements of the 116th
and 119th Philippine Constabulary Companies on June 18, 1972 at Barrio Taringsing, Cordon,
Isabela, the text of which reads as follows:
REGIONAL PROGRAM OF ACTION 1972
The following Regional Program of Action 1972 is prepared to be carried out as part of the overall plan of the party
to foment discontent and precipitate the tide of nationwide mass revolution. The fascist Marcos and his reactionary
of Congress is expected to prepare themselves for the 1973 hence:
January June:
1. Intensify recruitment of new party members especially from the workers-farmers class. Cadres are
being trained in order to organize the different regional bureaus. These bureaus must concentrate on
mass action and organization to advancement of the mass revolutionary movement. Reference is to
the Borador ng Programa sa Pagkilos at Ulat ng Panlipunang Pagsisiyasat as approved by the
Central Committee.
2. Recruit and train armed city partisans and urban guerrillas and organize them into units under
Party cadres and activities of mass organizations. These units must undergo specialized training on
explosives and demolition and other and other forms of sabotage.
3. Intensify recruitment and training of new members for the New Peoples Army in preparation for
limited offensive in selected areas in the regions.
4. Support a more aggressive program of agitation and proraganda against the reactionary armed
forces and against the Con-Con.
July August:
During this period the Party expects the puppet Marcos government to allow increase in bus rates
thus aggravating further the plight of students, workers and the farmers.
1. All Regional Party Committees must plan for a general strike movement. The Regional
Operational Commands must plan for armed support if the fascist forces of Marcos will try to
intimidate the oppressed Filipino masses.
2. Conduct sabotage against schools, colleges and universities hiking tuition fees.
3. Conduct sabotage and agitation against puppet judges and courts hearing cases against top party
leaders.
4. Create regional chaos and disorder to dramatize the inability of the fascist Marcos Government to
keep and maintain peace and order thru:
a) Robbery and hold-up of banks controlled by American imperialists and those
belonging to the enemies of the people.
b) Attack military camps, US bases and towns.
c) More violent strikes and demonstrations.
September October:
Increase intensity of violence, disorder and confusion:
1. Intensify sabotage and bombing of government buildings and embassies and other utilities:
a) Congress.
b) Supreme Court.
c) Con-Con.
d) City Hall.
e) US Embassy.
f) Facilities of US Bases.
g) Provincial Capitols.
h) Power Plants.
i) PLDT.
j) Radio Stations.
2. Sporadic attacks on camps, towns and cities.
3. Assassinate high Government officials of Congress, Judiciary, Con-Con and private individuals
sympathetic to puppet Marcos.
4. Establish provisional revolutionary government in towns and cities with the support of the masses.
5. With the sympathetic support of our allies, establish provisional provincial revolutionary
governments.
CENTRAL COMMITTEE
COMMUNIST PARTY OF THE
PHILIPPINES
WHEREAS, in line with their REGIONAL PROGRAM OF ACTION 1972, the aforesaid lawless
elements have of late been conducting intensified acts of violence and terrorisms during the current
year in the Greater Manila Area such as the bombing of the Arca building at Taft Avenue, Pasay
City, on March 15; of the Filipinas Orient Airways board room at Domestic Road, Pasay City on April
23; of the Vietnamese Embassy on May 30; of the Court of Industrial Relations on June 23; of the
Philippine Trust Company branch office in Cubao, Quezon City on June 24; of the Philamlife building
at United Nations Avenue, Manila, on July 3; of the Tabacalera Cigar & Cigarette Factory Compound
at Marquez de Comillas, Manila on July 27; of the PLDT exchange office at East Avenue, Quezon
City, and of the Philippine Sugar Institute building at North Avenue, Diliman, Quezon City, both on
August 15; of the Department of Social Welfare building at San Rafael Street, Sampaloc, Manila, on
August 17; of a water main on Aurora Boulevard and Madison Avenue, Quezon City on August 19;
of the Philamlife building again on August 30; this time causing severe destruction on the Far East
Bank and Trust Company building nearby of the armored car and building of the Philippine Banking
Corporation as well as the buildings of the Investment Development, Inc. and the Daily Star
Publications when another explosion took place on Railroad Street, Port Area, Manila also on
August 30; of Joes Department Store on Cariedo Street, Quiapo, Manila, on September 5, causing
death to one woman and injuries to some 38 individuals; and of the City Hall of Manila on September
8; of the water mains in San Juan, Rizal on September 12; of the San Miguel Building in Makati,
Rizal on September 14; and of the Quezon City Hall on September 18, 1972, as well as the
attempted bombing of the Congress Building on July 18, when an unexploded bomb was found in
the Senate Publication Division and the attempted bombing of the Department of Foreign Affairs on
August 30;
WHEREAS, in line with the same REGIONAL PROGRAM OF ACTION 1972, the aforesaid lawless
elements have also fielded in the Greater Manila area several of their Sparrow Units or Simbad
Units to undertake liquidation missions against ranking government officials, military personnel and
prominent citizens and to further heighten the destructions and depredations already inflicted by
them upon our innocent people, all of which are being deliberately done to sow terror, fear and
chaos amongst our population and to make the Government look so helpless and incapable of
protecting the lives and property of our people;
WHEREAS, in addition to the above-described social disorder, there is also the equally serious
disorder in Mindanao and Sulu resulting from the unsettled conflict between certain elements of the
Christian and Muslim population of Mindanao and Sulu, between the Christian Ilagas and the
Muslim Barracudas, and between our Government troops, and certain lawless organizations such
as the Mindanao Independence Movement;
WHEREAS, the Mindanao Independence Movement with the active material and financial
assistance of foreign political and economic interests, is engaged in an open and unconcealed
attempt to establish by violence and force a separate and independent political state out of the
islands of Mindanao and Sulu which are historically, politically and by law parts of the territories and
within the jurisdiction and sovereignty of the Republic of the Philippines;
WHEREAS, because of the aforesaid disorder resulting from armed clashes, killings, massacres,
arsons, rapes, pillages, destruction of whole villages and towns and the inevitable cessation of
agricultural and industrial operations, all of which have been brought about by the violence inflicted
by the Christians, the Muslims, the Ilagas, the Barracudas, and the Mindanao Independence
Movement against each other and against our government troops, a great many parts of the islands
of Mindanao and Sulu are virtually now in a state of actual war;
WHEREAS, the violent disorder in Mindanao and Sulu has to date resulted in the killing of over
1,000 civilians and about 2,000 armed Muslims and Christians, not to mention the more than five
hundred thousand of injured displaced and homeless persons as well as the great number of
casualties among our government troops, and the paralyzation of the economy of Mindanao and
Sulu;
WHEREAS, because of the foregoing acts of armed insurrection, wanton destruction of human and
lives and property, unabated and unrestrained propaganda attacks against the Government and its
institutions, instrumentalities, agencies and officials, and the rapidly expanding ranks of the aforesaid
lawless elements, and because of the spreading lawlessness and anarchy throughout the land all of
which prevented the Government to exercise its authority, extend its citizenry the protection of its
laws and in general exercise its sovereignty overall of its territories, caused serious demoralization
among our people and have made the apprehensive and fearful, and finally because public order
and safety and the security of this nation demand that immediate, swift, decisive and effective action
be taken to protect and insure the peace, order and security of the country and its population and to
maintain the authority of the Government;
WHEREAS, in cases of invasion, insurrection or rebellion or imminent danger thereof, I, as President
of the Philippines, have under the Constitution, three course of action open to me, namely: (a) call
out the armed forces to suppress the present lawless violence; (b) suspend the privilege of the writ
ofhabeas corpus to make the arrest and apprehension of these lawless elements easier and more
effective; or (c) place the Philippines or any part thereof under martial law;
WHEREAS, I have already utilized the first two courses of action, first, by calling upon the armed
forces to suppress the aforesaid lawless violence, committing to that specific job almost 50% of the
entire armed forces of the country and creating several task forces for that purpose such as Task
Force Saranay, Task Force Palanan, Task Force Isarog, Task Force Pagkakaisa and Task Force
Lancaf and, second, by suspending the privilege of the writ of habeas corpus on August 21, 1971 up
to January 11, 1972, but in spite of all that, both courses of action were found inadequate and
ineffective to contain, much less solve, the present rebellion and lawlessness in the country as
shown by the fact that:
1. The radical left has increased the number and area of operation of its front organizations and has
intensified the recruitment and training of new adherents in the urban and rural areas especially from
among the youth;
2. The Kabataang Makabayan (KM), the most militant and outspoken front organization of the radical
left, has increased the number of its chapters from 200 as of the end of 1970 to 317 as of July 31,
1972 and its membership from 10,000 as of the end of 1970 to 15,000 as of the end of July, 1972,
showing very clearly the rapid growth of the communist movement in this country;
3. The Samahang Demokratiko ng Kabataan (SDK), another militant and outspoken front
organization of the radical left, has also increased the number of its chapters from an insignificant
number at the end of 1970 to 159 as of the end of July, 1972 and has now a membership of some
1,495 highly indoctrinated, intensely committed and almost fanatically devoted individuals;
4. The New Peoples Army, the most active and the most violent and ruthless military arm of the
radical left, has increased its total strength from an estimated 6,500 composed of 560 regulars,
1,500 combat support and 4,400 service support) as of January 1, 1972 to about 7,900 (composed
of 1,028 regulars, 1,800 combat support and 5,025 service support) as of July 31, 1972, showing a
marked increase in its regular troops of over 100% in such a short period of six months;
5. The establishment of sanctuaries for the insurgents in Isabela, in Zambales, in Camarines Sur,
and in some parts of Mindanao, a development heretofore unknown in our campaign against
subversion and insurgency in this country;
6. The disappearance and dropping out of school of some 3,000 high school and college students
and who are reported to have joined with the insurgents for training in the handling of firearms and
explosives;
7. The bringing and introduction into the country of substantial war material consisting of military
hardware and supplies through the MV Karagatan at Digoyo Point, Palanan, Isabela, and the fact
that many of these military hardware and supplies are now in the hands of the insurgents and are
being used against our Government troops;
8. The infiltration and control of the media by persons who are sympathetic to the insurgents and the
consequent intensification of their propaganda assault against the Government and the military
establishment of the Government;
9. The formation at the grass-root level of political power organs, heretofore unknown in the history
of the Communist movement in this country, composed of Barrio Organizing Committees (BOCs) to
mobilize the barrio people for active involvement in the revolution; the Barrio Revolutionary
Committees (BRCs) to act as local governments in barrios considered as CPP/NPA bailiwicks; the
Workers Organizing Committees (WOCs) to organize workers from all sectors; the School
Organizing Committees (SOCs) to conduct agitation and propaganda activities and help in the
expansion of front groups among the studentry; and the Community Organizing Committees (COCs)
which operate in the urban areas in the same manner as the (BOCs);
WHEREAS, the rebellion and armed action undertaken by these lawless elements of the communist
and other armed aggrupations organized to overthrow the Republic of the Philippines by armed
violence and force have assumed the magnitude of an actual state of war against our people and the
Republic of the Philippines;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place
the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in
my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines,
to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my direction.
In addition, I do hereby order that all persons presently detained, as well as all others who may
hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and
offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection
therewith, for crimes against national security and the law of nations, crimes against public order,
crimes involving usurpation of authority, rank, title and improper use of names, uniforms and
insignia, crimes committed by public officers, and for such other crimes as will be enumerated in
orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of
any decree, order or regulation promulgated by me personally or promulgated upon my direction
shall be kept under detention until otherwise ordered released by me or by my duly designated
representative.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.
Done in the City of Manila, this 21st day of September, in the year of Our Lord, nineteen hundred
and seventy-two,
(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines
On September 22, 1972 at 9 oclock in the evening, clearance for the implementation of the proclamation was
granted, and for with, the following general order, among others, was issued:
GENERAL ORDER NO. 2
(ORDERING THE SECRETARY OF NATIONAL DEFENSE TO ARREST THE PERSONS NAMED
IN THE ATTACHED LIST, AS WELL AS OTHER PERSONS WHO MAY HAVE COMMITTED
CRIMES AND OFFENSES ENUMERATED IN THE ORDER).
Pursuant to Proclamation No. 1081, dated September 21, 1972, in my capacity as Commander-in-
Chief of all the Armed Forces of the Philippines and for being active participants in the conspiracy
and state power in the country and to take over the Government by force, the extent of which has
now assumed the proportion of an actual war against our people and their legitimate Government
and in order to prevent them from further committing acts that are inimical or injurious to our people,
the Government and our national interest, I hereby order you as Secretary of National Defense to for
with arrest or cause the arrest and take into your custody the individuals named in the attached list
and to hold them until otherwise so ordered by me or by my duly designated representative.
Likewise, I do hereby order you to arrest and take into custody and to hold them until otherwise
ordered released by me or by my duly authorized representative, such persons as may have
committed crimes and offenses in furtherance or on the occasion of or incident to or in connection
with the crimes of insurrection or rebellion, as well as persons who have committed crimes against
national security and the law of nations, crimes against the fundamental laws of the state, crimes
against public order, crimes involving usurpation of authority, title, improper use of name, uniform
and insignia, including persons guilty of crimes as public officers, as well as those persons who may
have violated any decree or order promulgated by me personally or promulgated upon my direction.
Done in the City of Manila, this 22nd day of September, in the year of Our Lord, nineteen hundred
and seventy-two.
(SGD.) FERDINAND E. MARCOS PRESIDENT
REPUBLIC OF THE PHILIPPINES
In the list referred to in this order were the names, among others, of all the petitioners herein. Thus, from shortly
after midnight of September 22, 1972 until they were all apprehended, petitioners were taken one by one, either
from their homes or places of work, by officers and men of the Armed Forces of the Philippines, without the usual
warrant of arrest, and only upon orders of the respondent Secretary of National Defense directed to his co-
respondent, the Chief of Staff of the Armed Forces. They have been since then confined either at Camp Bonifacio,
Camp Crame or some other military camp, until, as earlier adverted to, they were released subject to certain
conditions, with the exception of petitioners Diokno and Aquino, who are still in custody up to the present.
The particular case of
petitioner, Aquino.
As regards petitioner Aquino, it appears from his allegations in his petition and supplemental petition for prohibition
in G. R. No. L-37364, already referred to earlier, (1) that on August 11, 1973, six criminal charges, for illegal
possession of firearms, etc., murder and violation of RA 1700 or the Anti-Subversion Act, were filed against him with
Military Commission No. 2, created under General Orders Nos. 8, 12 and 39, (2) that on August 28, 1973, the
President created, thru Administrative Order No. 355, a special committee to undertake the preliminary investigation
or reinvestigation of said charges, and (3) that he questions the legality of his prosecution in a military commission
instead of in a regular civilian court as well as the creation of the special committee, not only because of alleged
invalidity of Proclamation 1081 and General Order No. 2 and the orders authorizing the creation of military
commissions but also because Administrative Order No. 355 constitutes allegedly a denial of the equal protection of
the laws to him and to the others affected thereby.
From the procedural standpoint, these developments did not warrant the filing of a separate petition. A supplemental
petition in G.R. No. L-35546, wherein he is one of the petitioners, would have sufficed. But inasmuch as petitioner
Aquino has chosen to file an independent special civil action for prohibition in said G.R. No. L-37364 without
withdrawing his petition for habeas corpus in G.R. No. L-35546, We wish to make it clear that in this decision, the
Court is going to resolve, for purposes of the habeas corpus petition of said petitioner, only the issues he has raised
that are common with those of the rest of the petitioners in all these cases, thereby leaving for resolution in G.R. No.
L-37364 all the issues that are peculiar only to him. In other words, insofar as petitioner Aquino is concerned, the
Court will resolve in this decision the question of legality of his detention by virtue of Proclamation 1081 and General
Order No. 2, such that in G.R. No. L-37364, what will be resolved will be only the constitutional issues related to the
filing of charges against him with Military Commission No. 2, premised already on whatever will be the Courts
resolution in the instant cases regarding Proclamation 1081 and General Order
No. 2.
With respect to the other petitioners, none of them stands charged with any offense before any court or military
commission. In fact, they all contend that they have not committed any act for which they can be held criminally
liable.
Going back to the facts, it may be mentioned, at this juncture, that on the day Proclamation 1081 was signed, the
Congress of the Philippines was actually holding a special session scheduled to end on September 22, 1972. It had
been in uninterrupted session since its regular opening in January, 1972. Its regular session was adjourned on May
18, 1972, followed by three special session of thirty days each,
8
from May 19 to June 22, June 23 to July 27 and July
28 to August 31, and one special session of twenty days, from September 1 to September 22. As a matter of fact,
petitioner Aquino was in a conference of a joint committee of the Senate and the House of Representatives when he was
arrested in one of the rooms of the Hilton Hotel in Manila.
It must also be stated at this point that on November 30, 1972, the Constitutional Convention of 1971, which
convened on June 1, 1971 and had been in continuous session since then, approved a New Constitution; that on
January 17, 1973, Proclamation 1102 was issued proclaiming the ratification thereof; and that in the Ratification
Cases aforementioned, the Supreme Court rendered on March 31, 1973, a judgment holding that "there is no further
judicial obstacle to the New Constitution being considered in force and effect." Among the pertinent provisions of the
New Constitution is Section 3 (2) of Article XVII which reads thus:
(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the law of the land, and shall remain valid legal, binding, and
effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of
the incumbent President, or unless expressly and explicitly modified or repeated by the regular
National Assembly.
Before closing this narration of facts, it is relevant to state that relative to petitioner Dioknos motion to withdraw,
respondent filed under date of May 13, 1974 the following Manifestation:
COME NOW respondents, by the undersigned counsel, and to this Honorable Court respectfully submit this
manifestation:
1. In a Motion dated December 29, 1973 petitioner, through counsel, prayed for the withdrawal of the
above-entitled case, more particularly the pleadings filed therein, Respondents Comments dated
January 17, 1974, petitioners Reply dated March 7, 1974, and respondents Rejoinder dated March
27, 1974 were subsequently submitted to this Honorable Court:
2. The motion to withdraw has been used for propaganda purposes against the Government,
including the Supreme. Court Lately, the propaganda has been intensified and the detention of
petitioner and the pendency of his case in this Court have been exploited;
3. We are aware that the issues raised in this case are of the utmost gravity and delicacy. This is the
reason we said that the decision in these cases should be postponed until the emergency, which
called for the proclamation of martial law, is over. While this position is amply supported by
precedents and is based on sound policy considerations, we now feel that to protect the integrity of
government institutions, including this Court, from scurrilous propaganda now being waged with
relentlessness, it would be in the greater interest of the Nation to have the motion to withdraw
resolved and if denied, to have the petition itself decided;
4. This is not to say that the emergency is over, but only to express a judgment that in view of recent
tactics employed in the propaganda against the Government, it is preferable in the national interest
to have the issues stirred by this litigation settled in this forum. For, indeed, we must state and
reiterate that:
a. Pursuant to the Presidents constitutional powers, functions, and responsibilities in
a state of martial law, he periodically requires to be conducted a continuing
assessment of the factual situation which necessitated the promulgation of
Proclamation No. 1081 on September 21, 1972 and the continuation of martial law
through Proclamation No. 1104, dated January 17, 1973;
b. The Governments current and latest assessment of the situation, including
evidence of the subversive activities of various groups and individuals, indicates that
there are still pockets of actual armed insurrection and rebellion in certain parts of the
country. While in the major areas of the active rebellion the military challenge to the
Republic and its duly constituted Government has been overcome and effective
steps have been and are being taken to redress the centuries-old and deep-seated
causes upon which the fires of insurrection and rebellion have fed, the essential
process of rehabilitation and renascence is a slow and delicate process. On the basis
of said current assessment and of consultations with the people, the President
believes that the exigencies of the situation, the continued threat to peace, order, and
security, the dangers to stable government and to democratic processes and
institutions, the requirements of public safety, and the actual and imminent danger of
insurrection and rebellion all require the continuation of the exercise of powers
incident to martial law;
c. The majority of persons who had to be detained upon the proclamation of martial
law have been released and are now engaged in their normal pursuits. However, the
President has deemed that, considering the overall situation described above and in
view of adequate evidence which can not now be declassified, the continued
detention of certain individuals without the filing of formal charges in court for
subversive and other criminal acts is necessary in the interest of national security
and defense to enable the Government to successfully meet the grave threats of
rebellion and insurrection. In this regard, the Secretary of National Defense and his
authorized representatives have acted in accordance with guidelines relating to
national security which the President has prescribed.
Respectfully submitted.
Manila, Philippines, May 13, 1974.
(Vol. II, Rollo, L-35539.)
and that earlier, in connection with the issue of jurisdiction of the Supreme Court over the instant cases, the
respondents invoked General Orders Nos. 3 and 3-A reading, as follows:
GENERAL ORDER NO. 3
WHEREAS, martial law having been declared under Proclamation No. 1081, dated September 21,
1972 and is now in effect throughout the land;
WHEREAS, martial law, having been declared because of wanton destruction of lives and property,
widespread lawlessness and anarchy and chaos and disorder now prevailing throughout the country,
which condition has been brought about by groups of men who are actively engaged in a criminal
conspiracy to seize political and state power in the Philippines in order to take over the Government
by force and violence, they extent of which has now assumed the proportion of an actual war against
our people and their legitimate Government; and
WHEREAS, in order to make more effective the implementation of the aforesaid Proclamation No.
1081 without unduly affecting the operations of the Government, and in order to end the present
national emergency within the shortest possible time;
NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed Forces of
the Philippines, and pursuant to Proclamation No. 1081, dated September 21, 1972, do hereby order
that henceforth all executive departments, bureaus, offices, agencies and instrumentalities of the
National Government, government-owed or controlled corporations, as well as all governments of all
the provinces, cities, municipalities and barrios throughout the land shall continue to function under
their present officers and employees and in accordance with existing laws, until otherwise ordered
by me or by my duly designated representative.
I do hereby further order that the Judiciary shall continue to function in accordance with its present
organization and personnel, and shall try and decide in accordance with existing laws all criminal
and civil cases, except the following cases:
1. Those involving the validity, legality or constitutionality of any decree, order or acts issued,
promulgated or performed by me or by my duly designated representative pursuant to Proclamation
No. 1081, dated September 21, 1972.
2. Those involving the validity or constitutionality of any rules, orders, or acts issued, promulgated or
performed by public servants pursuant to decrees, orders, rules and regulations issued and
promulgated by me or by my duly designated representative pursuant to Proclamation No. 1081,
dated September 21, 1972.
3. Those involving crimes against national security and the law of nations.
4. Those involving crimes against the fundamental laws of the State.
5. Those involving crimes against public order.
6. Those crimes involving usurpation of authority, rank, title, and improper use of names, uniforms,
and insignia.
7. Those involving crimes committed by public officers.
Done in the City of Manila, this 22nd day of September, in the year of Our Lord, nineteen hundred and seventy-two.
(SGD.) FERDINAND E. MARCOS President Republic of the Philippines
GENERAL ORDER NO. 3-A .
Sub-paragraph 1 of the second paragraph of the dispositive portion of General Order No. 3, dated
September 22, 1972, is hereby amended to read as follows:
xxx xxx xxx
1. Those involving the validity, legality, or constitutionality of Proclamation No. 1081, dated
September 21, 1972, or of any decree, order or acts issued, promulgated or performed by me or by
my duly designated representative pursuant thereto.
xxx xxx xxx
Done in the City of Manila, this 24th day of September, in the year of Our Lord, nineteen hundred
and seventy-two.
(SGD.) FERDINAND E. MARCOS President
Republic of the Philippines
Likewise relevant are the issuance by the President on January 17, 1973 of Proclamation 1104 reading thus:
PROCLAMATION NO. 1104
DECLARING THE CONTINUATION OF MARTIAL LAW.
WHEREAS, Barangays (Citizens Assemblies) were created in barrios in municipalities and in
districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972,
composed of all persons who are residents of the barrio, district or ward for at least six months,
fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen
Assembly members kept by the barrio, district or ward secretary;
WHEREAS, the said Barangays were established precisely to broaden the base of citizen
participation in the democratic process and to afford ample opportunities for the citizenry to express
their views on important national issues;
WHEREAS, pursuant to Presidential Decree No. 86-A, dated January 5, 1973 and Presidential
Decree No. 86-B, dated January 7, 1973, the question was posed before the Barangays: Do you
want martial law to continue?
WHEREAS, fifteen million two hundred twenty-four thousand five hundred eighteen (15,224,518)
voted for the continuation of martial law as against only eight hundred forty-three thousand fifty-one
(843,051) who voted against it;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers in me vested by the Constitution, do hereby declare that martial law shall continue in
accordance with the needs of the time and the desire of the Filipino people.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the
Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and
seventy-three.
(SGD.) FERDINAND E. MARCOS President
Republic of the Philippines
and the holding of a referendum on July 27-28, 1973 which as evidenced by the COMELEC proclamation of August
3, 1973 resulted in the following:
Under the present constitution the President, if he so desires, can continue in office beyond 1973.
Do you want President Marcos to continue beyond 1973 and finish the reforms he has initiated
under Martial Law?
18,052,016 - YES
1,856,744 - NO
(Phil. Daily Express, August 4, 1973)
THE FUNDAMENTAL ISSUES
First of all, petitioners challenge the factual premises and constitutional sufficiency of Proclamation 1081. Invoking
the Constitution of 1935 under which it was issued, they vigorously maintain that "while there may be rebellion in
some remote as in Isabela, there is no basis for the nationwide imposition of martial law, since: (a) no large scale
rebellion or insurrection exists in the Philippines; (b) public safety does not require it, inasmuch as no department of
the civil government is shown to have been unable to open or function because of or due to, the activities of the
lawless elements described in the Proclamation; (c) the Executive has given the nation to understand and there
exists no evidence to the contrary that the armed forces can handle the situation without utilizing the
extraordinary of the President etc.; and (d) the problem in the Greater Manila Area ... where petitioners were seized
and arrested was, at the time martial law was, plain lawlessness and criminality." (pp. 69-70 Petitioners
Memorandum). In his supplemental petition, petitioner Diokno individually posits that especially these days, with the
improved conditions of peace and order, there is no more constitutional justification for the continuance of martial
law. In other words, petitioners question not only the constitutional sufficiency both in fact and in law of the
proclamation but also the legality of their detention and constraints, independently of any finding of validity of the
proclamation, while in his supplemental petition petitioner Diokno individually submits that the Court should declare
that it has already become illegal to continue the present martial law regime because the emergency for which it
was proclaimed, if it ever existed, has already ceased, as attested by various public and official declaration of no
less than the President himself. On the other hand, respondents would want the Court to lay its hands off the instant
petitions, claiming that under General Orders Nos. 3 and 3-A, aforequoted, the President has ordered that the
Judiciary shall not try and decide cases "involving the validity, legality or constitutionality" of Proclamation 1081 and
any order, decree or acts issued or done pursuant to said Proclamation. They contend most vehemently that this
Court has no jurisdiction to inquire into the factual bases of the proclamation, any question as to the propriety or
constitutional sufficiency of its issuance being, according to them, political and non-justiciable. They point out, in this
connection, that in the above-mentioned referendum of January 10-15, 1973 and more so in that of July 27-28,
1973, the sovereign people impressed their seal of approval on the continuation of martial law for as long as the
President may deem it wise to maintain the same. And on the assumption the Court can make an inquiry into the
factual bases of the Proclamation, they claim there was more than efficient justification for its issuance, in the light of
the criterion of arbitrariness sanctioned by Us in Lansang vs. Garcia, 42 SCRA 448. Respondents further maintain
that it is only by another official proclamation by the President, not by a declaration, that martial law may be lifted.
Additionally, in their answer of July 26, 1973 to petitioner Dioknos supplemental petition, respondents contend that
the express provisions of the above-quoted transitory provision of the New Constitution, have made indubitable that
Proclamation 1081 as well as all the impugned General Orders are constitutional and valid.
Thus, the fundamental questions presented for the Courts resolution are:
1. Does the Supreme Court have jurisdiction to resolve the merits of the instant petitions? Put differently, are not the
issues herein related to the propriety or constitutional sufficiency of the issuance of the Proclamation purely political,
which are not for the judiciary, but for the people and the political departments of the government to determine? And
viewed from existing jurisprudence in the Philippines, is not the doctrine laid down by this Court inLansang vs.
Garcia, supra, applicable to these cases?
2. Even assuming Lansang to be applicable, and on the basis of the criterion of arbitrariness sanctioned therein, can
it be said that the President acted arbitrarily, capriciously or whimsically in issuing Proclamation 1081?
3. Even assuming also that said proclamation was constitutionally issued, may not the Supreme Court declare upon
the facts of record and those judicially known to it now that the necessity for martial law originally found by the
President to exist has already ceased so as to make further continuance of the present martial law regime
unconstitutional?
4. Even assuming again that the placing of the country under martial law is constitutional until the President himself
declares otherwise, is there any legal justification for the arrest and detention as well as the other constraints upon
the individual liberties of the petitioners, and, in the affirmative, does such justification continue up to the present,
almost two years from the time of their apprehension, there being no criminal charges of any kind against them nor
any warrants of arrest for their apprehension duly issued pursuant to the procedure prescribed by law?
5. Finally, can there still be any doubt regarding the constitutionality of the issuance of Proclamation 1081 and all the
other proclamations and orders, decrees, instructions and acts of the President issued or done by him pursuant to
said Proclamation, considering that by the terms of Section 3 (2) of Article XVII of the Constitution of the Philippines
of 1973, "all proclamations, orders, decrees, instructions and acts promulgated, issued or done by the incumbent
President shall be part of the law of the land, and shall remain valid, legal, binding and effective" until revoked or
superseded by the incumbent President himself or by the regular National Assembly established under the same
Constitution?
I
THE ISSUE OF JURISDICTION
By its very nature, the issue of jurisdiction vigorously urged by the Solicitor General calls for prior resolution. Indeed,
whenever the authority of the Court to act is seriously challenged, it should not proceed any further until that
authority is clearly established. And it goes without saying that such authority may be found only in the existing laws
and/or the Constitution.
For a moment, however, there was a feeling among some members of the Court that the import of the transitory
provisions of the New Constitution referred to in the fifth above has made the issue of jurisdiction posed by the
question respondents of secondary importance, if not entirely academic. Until, upon further reflection, a consensus
emerged that for Us to declare that the transitory provision invoked has rendered moot and academic any
controversy as to the legality of the impugned acts of the President is to assume that the issue is justiciable, thereby
bypassing the very issue of jurisdiction. We are asked to resolve. We feel that while perhaps, such reliance on the
transitory provision referred to may legally suffice to dispose of the cases at bar, it cannot answer persistent queries
regarding the powers of the Supreme Court in a martial law situation. It would still leave unsettled a host of
controversies related to the continued exercise of extraordinary powers by the President. Withal, such assumption of
justiciability would leave the Court open to successive petitions asking that martial law be lifted, without Our having
resolved first the correctness of such assumption. Indeed, nothing short of a categorical and definite ruling of this
Court is imperative regarding the pretended non-justiciability of the issues herein, if the people are to know, as they
must, whether the present governmental order has legitimate constitutional foundations or it is supported by nothing
more than naked force and self-created stilts to keep it above the murky waters of unconstitutionality. Thus, it is but
proper that We tackle first the questions about the authority of the Court to entertain and decide these cases before
discussing the materiality and effects of the transitory provision relied upon by respondents.
As a matter of fact, it is not alone the matter of jurisdiction that We should decide. Beyond the purely legal issues
placed before Us by the parties, more fundamental problems are involved in these proceedings. There are all-
important matters which a historical decision like this cannot ignore on the pretext that Our duty in the premises is
exclusively judicial. Whether all the members of the Court like it or not, the Court has to play its indispensable and
decisive role in resolving the problems confronting our people in the critical circumstances in which they find
themselves. After all, we cannot dissociate ourselves from them, for we are Filipinos who must share the common
fate to which the denouement of the current situation will consign our nation. The priority issue before Us is whether
We will subject the assailed acts of the President to judicial scrutiny as to its factual bases or We will defer to his
findings predicated on evidence which are in the very nature of things officially available only to him, but in either
case, our people must know that Our decision has democratic foundations and conforms with the great principles for
which our nation exists.
The New Constitution itself is in a large sense a product of the political convulsion now shaking precariously the
unity of the nation. Upon the other hand, that those presently in authority had a hand in one way or another in its
formulation, approval and ratification can hardly be denied. To justify, therefore, the restraint upon the liberties of
petitioners through an exclusive reliance on the mandates of the new charter, albeit logically and technically tenable,
may not suffice to keep our people united in the faith that there is genuine democracy in the existing order and that
the rule of law still prevails in our land. Somehow the disturbing thought may keep lingering with some, if not with
many, of our countrymen that by predicating Our decision on the basis alone of what the New Constitution ordains,
We are in effect allowing those presently in authority the dubious privilege of legalizing their acts and exculpating
themselves from their supposed constitutional transgressions through a device which might yet have been of their
own furtive making.
Besides, We should not be as naive as to ignore that in troublous times like the present, simplistic solutions,
however solidly based, of constitutional controversies likely to have grave political consequences would not sound
cogent enough unless they ring in complete harmony with the tune set by the founders of our nation when they
solemnly consecrated it to the ideology they considered best conducive to the contentment and prosperity of all our
people. And the commitment of the Philippines to the ideals of democracy and freedom is ever evident and
indubitable. It is writ in the martyrdom of our revolutionary forbears when they violently overthrow the yoke of
Spanish dispotism. It is an indelible part of the history of our passionate and zealous observance of democratic
principles and practices during the more than four decades that America was with us. It is reaffirmed in bright
crimson in the blood and the lives of the countless Filipinos who fought and died in order that our country may not
be subjugated under the militarism and totalitarianism of the Japanese then, who were even enticing us with the
idea of a Greater East Asia Co-Prosperity Sphere. And today, that our people are showing considerable disposition
to suffer the imposition of martial law can only be explained by their belief that it is the last recourse to save
themselves from the inroads of ideologies antithetic to those they cherish and uphold.
Withal, the eyes of all the peoples of the world on both sides of the bamboo and iron curtains are focused on what
has been happening in our country since September 21, 1972. Martial law in any country has such awesome
implications that any nation under it is naturally an interesting study subject for the rest of mankind. Those who
consider themselves to be our ideological allies must be keeping apprehensive watch on how steadfastly we shall
remain living and cherishing our common fundamental political tenets and ways of life, whereas those of the
opposite ideology must be eagerly anticipating how soon we will join them in the conviction that, after all, real
progress and development cannot be achieved without giving up individual freedom and liberty and unless there is
concentration of power in the exercise of government authority. It is true the Philippines continues to enjoy
recognition of all the states with whom it had diplomatic relations before martial law was proclaimed but it is not
difficult to imagine that soon as it has became definite or anyway apparent to those concerned that the Philippines
has ceased to adhere to the immutable concepts of freedom and democracy enshrined in its own fundamental law
corresponding reactions would manifest themselves in the treatment that will be given us by these states.
In our chosen form of government, the Supreme Court is the department that most authoritatively speaks the
language of the Constitution. Hence, how the present martial law and the constraints upon the liberties of petitioners
can be justified under our Constitution which provides for a republican democratic government will be read by the
whole world in the considerations of this decision. From them they will know whither we are going as a nation. More
importantly, by the same token, history and the future generations of Filipinos will render their own judgment on all
of us who by the will of Divine Providence have to play our respective roles in this epochal chapter of our national
life. By this decision, everyone concerned will determine how truly or otherwise, the Philippines of today is keeping
faith with the fundamental precepts of democracy and liberty to which the nation has been irrevocably committed by
our heroes and martyrs since its birth.
And we should not gloss over the fact that petitioners have come to this Court for the protection of their rights under
the provisions of the Old Charter that have remained unaltered by the New Constitution. It would not be fair to them,
if the provisions invoked by them still mean what they had always meant before, to determine the fate of their
petitions on the basis merely of a transitory provision whose consistency with democratic principles they vigorously
challenge.
In this delicate period of our national life, when faith in each other and unity among all of the component elements of
our people are indispensable, We cannot treat the attitude and feelings of the petitioners, especially Senator
Diokno * who is still under detention without formal charges, with apathy and indifferent unconcern. Their pleadings evince quite distinctly an apprehensive, nay
a fast dwindling faith in the capacity of this Court to render them justice. Bluntly put, their pose is that the justice they seek may be found only in the correct
construction of the 1935 Constitution, and they make no secret of their fears that because the incumbent members of the Court have taken an oath to defend and
protect the New Constitution, their hopes of due protection under the Bill of Rights of the Old Charter may fall on deaf ears. Petitioner Diokno, in particular, with the
undisguised concurrence of his chief counsel, former Senator Taada, despairingly bewails that although they are "convinced beyond any nagging doubt that (they
are) on the side of right and reason and law and justice, (they are) equally convinced that (they) cannot reasonably expect either right or reason, law or justice, to
prevail in (these) case(s)."
To be sure, We do not feel bound to soothe the subjective despondency nor to cool down the infuriated feelings of
litigants and lawyers by means other than the sheer objectiveness and demonstrated technical accuracy of our
decisions. Under the peculiar milieu of these cases, however, it is perhaps best that We do not spare any effort to
make everyone see that in discharging the grave responsibility incumbent upon Us in the best light that God has
given Us to see it, We have explored every angle the parties have indicated and that We have exhausted all
jurisprudential resources within our command before arriving at our conclusions and rendering our verdict. In a way,
it could indeed be part of the nobility that should never be lost in any court of justice that no party before it is left
sulking with the thought that he lost because not all his important arguments in which he sincerely believes have
been duly considered or weighed in the balance.
But, of course, petitioners emotional misgivings are manifestly baseless. It is too evident for anyone to ignore that
the provisions of the Old Constitution petitioners are invoking remain unaltered in the New Constitution and that
when it comes to the basic precepts underlying the main portions of both fundamental laws, there is no disparity,
much less any antagonism between them, for in truth, they are the same identical tenets to which our country, our
government and our people have always been ineradicably committed. Insofar, therefore, as said provisions and
their underlying principles are concerned, the new oath taken by the members of the Court must be understood, not
in the disturbing sense petitioners take them, but rather as a continuing guarantee of the Justices unswerving fealty
and steadfast adherence to the self-same tenets and ideals of democracy and liberty embodied in the oaths of
loyalty they took with reference to the 1935 Constitution.
Contrary to what is obviously the erroneous impression of petitioner Diokno, the fundamental reason that impelled
the members of the Court to take the new oaths that are causing him unwarranted agony was precisely to regain
their independence from the Executive, inasmuch as the transitory provisions of the 1973 Constitution had, as a
matter of course, subjected the judiciary to the usual rules attendant in the reorganization of governments under a
new charter. Under Sections 9 and 10 of Article XVII, "incumbent members of the Judiciary may continue in office
until they reach the age of seventy years unless sooner replaced" by the President, but "all officials whose
appointments are by this Constitution vested in the (President) shall vacate their offices upon the appointment and
qualification of their successors." In other words, under said provisions, the Justices ceased to be permanent. And
that is precisely why our new oaths containing the phrase "na pinagpapatuloy sa panunungkulan", which petitioner
Diokno uncharitably ridicules ignoring its real import, was prepared by the Secretary of Justice in consultation with
the Court, and not by the President or any other subordinate in the Executive office, purposely to make sure that the
oath taking ceremony which was to be presided by the President himself would connote and signify that thereby, in
fact and in contemplation of law, the President has already exercised the power conferred upon him by the
aforequoted transitory constitutional provisions to replace anyone of us with a successor at anytime.
There was no Presidential edict at all for the Justices to take such an oath. The President informed the Court that he
was determined to restore the permanence of the respective tenures of its members, but there was a feeling that to
extend new appointments to them as successors to themselves would sound somehow absurd, And so, in a
conference among the President, the Secretary of Justice and all the Justices, a mutually acceptable construction of
the pertinent transitory provision was adopted to the effect that an official public announcement was to be made that
the incumbent Justices would be continued in their respective offices without any new appointment, but they would
take a fittingly worded oath the text of which was to be prepared in consultation between the Secretary of Justice
and the Court. Thus, by that oath taking, all the members of the Court, other than the Chief Justice and the three
new Associate Justices, who because of their new appointment are not affected by the transitory provisions, are
now equally permanent with them in their constitutional tenures, as officially and publicly announced by the
President himself on that occasion. Otherwise stated, the reorganization of the Supreme Court contemplated in the
transitory provisions referred to, which, incidentally was also a feature of the transitory provisions of the 1935
Constitution, albeit, limited then expressly to one year, (Section 4, Article XVI) has already been accomplished, and
all the Justices are now unreachably beyond the presidential prerogative either explicit or implicit in the terms of the
new transitory provisions.
It is, therefore, in these faith and spirit and with this understanding, supported with prayers for guidance of Divine
Providence, that We have deliberated and voted on the issues in these cases certainly, without any claim of
monopoly of wisdom and patriotism and of loyalty to all that is sacred to the Philippines and the Filipino people.
II
As already stated, the Governments insistent posture that the Supreme Court should abstain from inquiring into the
constitutional sufficiency of Proclamation 1081 is predicated on two fundamental grounds, namely, (1) that under
General Order No. 3, as amended by General Order No. 3-A, "the Judiciary(which includes the Supreme Court)
shall continue to function in accordance with its present organization and personnel, and shall try and decide in
accordance with existing laws all criminal and civil cases, except the following: 1. Those involving the validity,
legality or constitutionality of Proclamation 1081 dated September 21, 1972 or of any decree, order or acts issued,
promulgated or performed by (the President) or by (his) duly designated representative pursuant thereto," and (2)
the questions involved in these cases are political and non-justiciable and, therefore, outside the domain of judicial
inquiry.
A
GENERAL ORDERS NOS. 3 AND 3-A HAVE CEASED TO BE OPERATIVE INSOFAR AS THEY ENJOIN THE
JUDICIARY OF JURISDICTION OVER CASES INVOLVING THE VALIDITY OF THE PROCLAMATIONS,
ORDERS OR ACTS OF THE PRESIDENT.
Anent the first ground thus invoked by the respondents, it is not without importance to note that the Solicitor General
relies barely on the provisions of the general orders cited without elaborating as to how the Supreme Court can be
bound thereby. Considering that the totality of the judicial power is vested in the Court by no less than the
Constitution, both the Old and the New, the absence of any independent showing of how the President may by his
own fiat constitutionally declare or order otherwise is certainly significant. It may be that the Solicitor General
considered it more prudent to tone down any possible frontal clash with the Court, but as We see it, the simplistic
tenor of the Solicitor Generals defense must be due to the fact too well known to require any evidential proof that by
the Presidents own acts, publicized here and abroad, he had made it plainly understood that General Orders Nos. 3
and 3-A are no longer operative insofar as they were intended to divest the Judiciary of jurisdiction to pass on the
validity, legality or constitutionality of his acts under the aegis of martial law. In fact, according to the President, it
was upon his instructions given as early as September 24, 1972, soon after the filing of the present petitions, that
the Solicitor General submitted his return and answer to the writs We have issued herein. It is a matter of public
knowledge that the presidents repeated avowal of the Governments submission to the Court is being proudly
acclaimed as the distinctive characteristic of the so-called "martial law Philippine style", since such attitude
endowes it with the democratic flavor so dismally absent in the martial law prevailing in other countries of the world.
Accordingly, even if it were to be assumed at this juncture that by virtue of the transitory provision of the New
Constitution making all orders of the incumbent President part of the law of the land, General Orders Nos. 3 and 3-A
are valid, the position of the respondents on the present issue of jurisdiction based on said orders has been
rendered untenable by the very acts of the President, which in the words of the same transitory provision have
"modified, revoked or superseded" them. And in this connection, it is important to note that the transitory provision
just referred to textually says that the acts of the incumbent President shall "remain valid, legal, binding and effective
... unless modified, revoked or superseded by subsequent proclamations, orders, decrees, instructions or other acts
of the incumbent President, or unless expressly and explicitly modified, or repealed by the regular National
Assembly", thereby implying that the modificatory or revocatory acts of the president need not be as express and
explicit as in the case of the National Assembly. In other words, when it comes to acts of the President, mere
demonstrated inconsistency of his posterior acts with earlier ones would be enough for implied modification or
revocation to be effective, even if no statement is made by him to such effect.
Rationalizing his attitude in regard to the Supreme Court during martial law, President Marcos has the following to
say in his book entitled "Notes on the New Society of the Philippines":
Our martial law is unique in that it is based on the supremacy of the civilian authority over the military
and on complete submission to the decision of the Supreme Court, and most important of all, the
people. ... (p. 103).
xxx xxx xxx
Thus, upon the approval by the Constitutional Convention of a new Constitution, I organized the
barangays or village councils or citizens assemblies in the barrios (a barrio is the smallest political
unit in the Philippines). I directed the new Constitution to be submitted to the barangays or citizens
assemblies in a formal plebiscite from January 10 to 15, 1973. The barangays voted almost
unanimously to ratify the Constitution, continue with martial law and with the reforms of the New
Society.
This action was questioned in a petition filed before our Supreme Court in the cases
entitledJavellana vs. Executive Secretary et al, G.R. No. L-36143,36164, 36165, 36236 and 36283.
The issue raised was whether I had the power to call a plebiscite; whether I could proclaim the
ratification of the new Constitution. In raising this issue, the petitioners (who, incidentally, were
Liberals or political opposition leaders) raised the fundamental issue of the power of the President
under a proclamation of martial law to issue decrees.
Inasmuch as the issues in turn raised the question of the legitimacy of the entire Government and
also to meet the insistent suggestion that, in the event of an adverse decision, I proclaim a
revolutionary government, I decided to submit to tile jurisdiction of the Supreme Court as I had done
in the Lansang vs. Garcia case (already quoted) in 1971 when almost the same parties in interest
questioned my powers as President to suspend the privilege of the writ of habeas corpus. (Refer to
pp. 13-17.)
This would, at the same time, calm the fears of every cynic who had any misgivings about my
intentions and claimed that I was ready to set up a dictatorship. For who is the dictator who would
submit himself to a higher body like the Supreme Court on the question of the constitutionality or
validity of his actions? (pp. 103-104.)
xxx xxx xxx
It will be noted that I had submitted myself to the jurisdiction of the Supreme Court in all cases
questioning my authority in 1971 in the case of Lansang vs. Garcia on the question of the
suspension of the privilege of the writ of habeas corpus and in the case just cited on the
proclamation of martial law as well as the other related cases. (pp. 105-106.)
Nothing could be more indicative, than these words of the President himself, of his resolute intent to render General
Orders Nos. 3 and 3-A inoperative insofar as the Supreme Courts jurisdiction over cases involving the validity,
legality or constitutionality of his acts are concerned. Actually, the tenor and purpose of the said general orders are
standard in martial law proclamations, and the Presidents attitude is more of an exception to the general practice.
Be that as it may, with this development, petitioners have no reason to charge that there is a "disrobing" of the
Supreme Court. But even as the President unequivocally reaffirms, over and above martial law, his respect for the
Supreme Courts constitutionally assigned role as the guardian of the Constitution and as the final authority as to its
correct interpretation and construction, it is entirely up to the Court to determine and define its own constitutional
prerogatives vis-a-vis the proclamation and the existing martial law situation, given the reasons for the declaration
and its avowed objectives. .
B
MAY THE SUPREME COURT INQUIRE INTO THE FACTUAL BASES OF THE ISSUANCE OF PROCLAMATION
1081 TO DETERMINE ITS CONSTITUTIONAL SUFFICIENCY?
The second ground vigorously urged by the Solicitor General is more fundamental, since, prescinding from the force
of the general orders just discussed, it strikes at the very core of the judicial power vested in the Court by the people
thru the Constitution. It is claimed that insofar as the instant petitions impugn the issuance of Proclamation 1081 as
having been issued by the President in excess of his constitutional authority, they raise a political question not
subject to inquiry by the courts. And with reference to the plea of the petitioners that their arrest, detention and other
restraints, without any charges or warrants duly issued by the proper judge, constitute clear violations of their rights
guaranteed by the fundamental law, the stand of the respondents is that the privilege of the writ of habeas
corpus has been suspended automatically in consequence of the imposition of martial law, the propriety of which is
left by the Constitution to the exclusive discretion of the President, such that for the proper exercise of that discretion
he is accountable only to the sovereign people, either directly at the polls or thru their representatives by
impeachment.
Never before has the Supreme Court of the Philippines been confronted with a problem of such transcendental
consequences and implications as the present one entails. There is here an exertion of extreme state power
involving the proclaimed assumption of the totality of government authority by the Executive, predicated on his own
declaration that a state of rebellion assuming "the magnitude of an actual state of war against our people and the
Republic of the Philippines" exists (22nd whereas of Proclamation 1081) and that "the public order and safety and
the security of this nation demand that immediate, swift, decisive and effective action be taken to protect and insure
the peace, order and security of the country and its population and to maintain the authority of the government."
(19th whereas, id.) Upon the other hand, petitioners deny the factual bases of the Proclamation and insist that it is
incumbent upon the Court, in the name of democracy, liberty and the constitution, to inquire into the veracity thereof
and to declare, upon finding them to be untrue, that the proclamation is unconstitutional and void. Respondents
counter however, that the very nature of the proclamation demands but the court should refrain from making any
such inquiry, considering that, as already stated, the discretion as to whether or not martial law should be imposed
is lodged by the Constitution in the President exclusively.
As We enter the extremely delicate task of resolving the grave issues thus thrust upon Us, We are immediately
encountered by absolute verities to guide Us all the way. The first and most important of them is that the
Constitution
9
is the supreme law of the land. This means among others things all the powers of the government and of all
its officials from the President down to the lowest emanate from it. None of them may exercise any power unless it can be
traced thereto either textually or by natural and logical implication.
The second is that it is settled that the Judiciary provisions of the Constitution point to the Supreme Court as the
ultimate arbiter of all conflicts as to what the Constitution or any part thereof means. While the other Departments
may adopt their own construction thereof, when such construction is challenged by the proper party in an
appropriate case wherein a decision would be impossible without determining the correct construction, the Supreme
Courts word on the matter controls.
The third is that in the same way that the Supreme Court is the designated guardian of the Constitution, the
President is the specifically assigned protector of the safety, tranquility and territorial integrity of the nation. This
responsibility of the President is his alone and may not be shared by any other Department.
The fourth is that, to the end just stated, the Constitution expressly provides that "in case of invasion, insurrection or
rebellion or imminent danger thereof, when the public safety requires it, he (the Executive) "may (as a last resort) ...
place the Philippines or any part thereof under martial law".
10
The fifth is that in the same manner that the Executive power conferred upon the Executive by the Constitution is
complete, total and unlimited, so also, the judicial power vested in the Supreme Court and the inferior courts, is the
very whole of that power, without any limitation or qualification.
The sixth is that although the Bill of Rights in the Constitution strictly ordains that "no person shall be deprived of life,
liberty or property without due process of law",
11
even this basic guarantee of protection readily reveals that the
Constitutions concern for individual rights and liberties is not entirely above that for the national interests, since the
deprivation it enjoins is only that which is without due process of law, and laws are always enacted in the national interest
or to promote and safeguard the general welfare. Of course, it is understood that the law thus passed, whether procedural
or substantive, must afford the party concerned the basic elements of justice, such as the right to be heard, confrontation,
and counsel, inter alia.
And the seventh is that whereas the Bill of Rights of the 1935 Constitution explicitly enjoins that "(T)he privilege of
the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or rebellion, when the
public safety requires it, in any of which events the same may be suspended wherever during such period the
necessity for such suspension shall exist",
12
there is no similar injunction whether expressed or implied against the
declaration of martial law.
From these incontrovertible postulates, it results, first of all, that the main question before Us is not in reality one of
jurisdiction, for there can be no conceivable controversy, especially one involving a conflict as to the correct
construction of the Constitution, that is not contemplated to be within the judicial authority of the courts to hear and
decide. The judicial power of the courts being unlimited and unqualified, it extends over all situations that call for the
ascertainment and protection of the rights of any party allegedly violated, even when the alleged violator is the
highest official of the land or the government itself. It is, therefore, evident that the Courts jurisdiction to take
cognizance of and to decide the instant petitions on their merits is beyond challenge.
In this connection, however, it must be borne in mind that in the form of government envisaged by the framers of the
Constitution and adopted by our people, the Courts indisputable and plenary authority to decide does not
necessarily impose upon it the duty to interpose its fiat as the only means of settling the conflicting claims of the
parties before it. It is ingrained in the distribution of powers in the fundamental law that hand in hand with the vesting
of the judicial power upon the Court, the Constitution has coevally conferred upon it the discretion to determine, in
consideration of the constitutional prerogatives granted to the other Departments, when to refrain from imposing
judicial solutions and instead defer to the judgment of the latter. It is in the very nature of republican governments
that certain matters are left in the residual power of the people themselves to resolve, either directly at the polls or
thru their elected representatives in the political Departments of the government. And these reserved matters are
easily distinguishable by their very nature, when one studiously considers the basic junctions and responsibilities
entrusted by the charter to each of the great Departments of the government. To cite an obvious example, the
protection, defense and preservation of the state against internal or external aggression threatening its veiny
existence is far from being within the ambit of judicial responsibility. The distinct role then of the Supreme Court of
being the final arbiter in the determination of constitutional controversies does not have to be asserted in such
contemplated situations, thereby to give way to the ultimate prerogative of the people articulated thru suffrage or
thru the acts of their political representatives they have elected for the purpose.
Indeed, these fundamental considerations are the ones that lie at the base of what is known in American
constitutional law as the political question doctrine, which in that jurisdiction is unquestionably deemed to be part
and parcel of the rule of law, exactly like its apparently more attractive or popular opposite, judicial activism, which is
the fullest exertion of judicial power upon the theory that unless the courts intervene injustice might prevail. It has
been invoked and applied by this Court in varied forms and modes of projection in several momentous instances in
the past,
13
and it is the main support of the stand of the Solicitor General on the issue of jurisdiction in the case at bar. It
is also referred to as the doctrine of judicial self-restraint or abstention. But as the nomenclatures themselves imply,
activism and self-restraint are both subjective attitudes, not inherent imperatives. The choice of alternatives in any
particular eventuality is naturally dictated by what in the Courts considered opinion is what the Constitution envisions
should be done in order to accomplish the objectives of government and of nationhood. And perhaps it may be added
here to avoid confusion of concepts, that We are not losing sight of the traditional approach based on the doctrine of
separation of powers. In truth, We perceive that even under such mode of rationalization, the existence of power is
secondary, respect for the acts of a coordinate, co-equal and co-independent Department being the general rule,
particularly when the issue is not encroachment of delimited areas of functions but alleged abuse of a Departments own
basic prerogatives.
In the final analysis, therefore, We need not indulge in any further discussion as to whether or not the Court has
jurisdiction over the merits of the instant petitions. It is definite that it has. Rather, the real question before Us is
whether or not the Court should act on them. Stated differently, do We have here that appropriate occasion for
activism on the part of the Court, or, do the imperatives of the situation demand, in the light of the reservations in the
fundamental law just discussed, that We defer to the political decision of the Executive? After mature deliberation,
and taking all relevant circumstances into account, We are convinced that the Court should abstain in regard to what
is in all probability the most important issue raised in them, namely, whether or not the Court should inquire into the
constitutional sufficiency of Proclamation 1081 by receiving evidence tending to belie the factual premises thereof. It
is Our considered view that under the Constitution, the discretion to determine ultimately whether or not the
Philippines or any part thereof should be placed under martial law and for how long is lodged exclusively in the
Executive, and for this reason, it is best that We defer to his judgment as regards the existence of the grounds
therefor, since, after all, it is not expected that the Supreme Court should share with him the delicate constitutional
responsibility of defending the safety, security, tranquility and territorial integrity of the nation in the face of a
rebellion or invasion. This is not abdication of judicial power, much less a violation of Our oaths "to support and
defend the Constitution"; rather, this is deference to an act of the Executive which, in Our well-considered view, the
Constitution contemplates the Court should refrain from reviewing or interfering with. To Our mind, the following
considerations, inter alia, impel no other conclusion:
1
It has been said that martial law has no generally accepted definition, much less a precise meaning. But as We see
it, no matter how variously it has been described, a common element is plainly recognizable in whatever has been
said about it it does not involve executive power alone. To be more exact, martial law is state power which
involves the totality of government authority, irrespective of the Department or official by whom it is administered.
This is because, as admitted by all, martial law is every governments substitute for the established governmental
machinery rendered inoperative by the emergency that brings it forth, in order to maintain whatever legal and social
order is possible during the period of emergency, while the government is engaged in battle with the enemy.
Otherwise, with the breakdown of the regular government authority or the inability of the usual offices and officials to
perform their functions without endangering the safety of all concerned, anarchy and chaos are bound to prevail and
protection of life and property would be nil. What is worse, the confusion and disorder would detract the defense
efforts. It is indispensable therefore that some kind of government must go on, and martial law appears to be the
logical alternative. Hence, from the point of view of safeguarding the people against possible governmental abuses,
it is not the declaration of martial law and who actually administers it that is of supreme importance. Someone has of
necessity to be in command as surrogate of the whole embattled government. It is what is actually done by the
administrator affecting individual rights and liberties that must pass constitutional standards, even as these are
correspondingly adjusted to suit the necessities of the situation. But this is not to say that redress of constitutional
offenses would immediately and necessarily be available, for even the procedure for securing redress, its form and
time must depend on what such necessities will permit. Viewed in depth, this is all that can be visualized as
contemplated in the supposedly fundamental principle invoked by petitioners to the effect that necessity and
necessity alone is the justification and the measure of the powers that may be exercised under martial law.
2
In countries where there is no constitutional provision sanctioning the imposition of martial law, the power to declare
or proclaim the same is nevertheless conceded to be the most vital inherent prerogative of the state because it is
axiomatic that the right of the state to defend itself against disintegration or subjugation by another cannot be less
than an individuals natural right of self-defense. The resulting repression or restraint of individual rights is therefore
justified as the natural contribution that the individual owes to the state, so that the government under which he lives
may survive. After all, such subordination to the general interest is supposed to be temporary, coincident only with
the requirements of the emergency.
At the same time, under the general practice in those countries, it is considered as nothing but logical that the
declaration or proclamation should be made by the Executive. So it is that none of the cases cited by petitioners,
including those of Hearon vs. Calus 183, S.E. 24 and Allen vs. Oklahoma City, 52 Pac. Rep. 2nd Series, pp. 1054-
1059, may be deemed as a binding precedent sustaining definitely that it is in the power of the courts to declare an
Executives proclamation or declaration of martial law in case of rebellion or insurrection to be unconstitutional and
unauthorized. Our own research has not yielded any jurisprudence upholding the contention of petitioners on this
point. What is clear and incontrovertible from all the cases cited by both parties is that the power of the Executive to
proclaim martial law in case of rebellion has never been challenged, not to say outlawed. It has always been
assumed, even if the extent of the authority that may be exercise under it has been subjected to the applicable
provision of the constitution, with some courts holding that the enforceability of the fundamental law within the area
of the martial law regime is unqualified, and the others maintaining that such enforceability must be commensurate
with the demands of the emergency situation. In other words, there is actually no authoritative jurisprudential rule for
Us to follow in respect to the specific question of whether or not the Executives determination of the necessity to
impose martial law during a rebellion is reviewable by the judiciary. If We have to go via the precedential route, the
most that We can find is that the legality of an Executives exercise of the power to proclaim martial law has never
been passed upon by any court in a categorical manner so as to leave no room for doubt or speculation.
3
In the Philippines, We do not have to resort to assumptions regarding any inherent power of the government to
proclaim a state of martial law. What is an implied inherent prerogative of the government in other countries is
explicitly conferred by our people to the government in unequivocal terms in the fundamental law. More importantly
in this connection, it is to the Executive that the authority is specifically granted "in cases of invasion, insurrection or
rebellion, when public safety requires it", to "place the Philippines or any part thereof under Martial Law". To be sure,
petitioners admit that much. But they insist on trying to show that the factual premises of the Proclamation are not
entirely true and are, in any event, constitutionally insufficient. They urge the Court to pass on the merits of this
particular proposition of fact and of law in their petitions and to order thereafter the nullification and setting aside
thereof.
We do not believe the Court should interfere.
The pertinent constitutional provision is explicit and unequivocal. It reads as follows:
(2) The President shall be commander-in-chief of all armed forces of the Philippines and, whenever
it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence,
invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger
thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas
corpus, or place the Philippines or any part thereof under martial law (Section 10(2), Article VII, 1935
Constitution.)
(3) SEC. 12. The prime Minister shall be commander-in-chief of all armed forces of the Philippines
and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or
imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under martial (Section 12, Article IX,
1973 Constitution.)
Except for the reference to the Prime Minister in the New Constitution instead of to the President as in the Old, the
wording of the provision has remained unaltered ipssissimis verbis Accordingly, the two Constitutions cannot vary in
meaning, they should be construed and applied in the light of exactly the same considerations. In this sense at least,
petitioners invocation of the 1935 Constitution has not been rendered academic by the enforcement of the new
charter. For the purposes of these cases, We will in the main consider their arguments as if there has been no
Javellana decision.
Now, since in those countries where martial law is an extra-constitutional concept, the Executives proclamation
thereof, as observed above, has never been considered as offensive to the fundamental law, whether written or
unwritten, and, in fact, not even challenged, what reason can there be that here in the Philippines, wherein the
Constitution directly and definitely commits the power to the Executive, another rule should obtain? Are we Filipinos
so incapable of electing an Executive we can trust not to unceremoniously cast aside his constitutionally worded
oath solemnly and emphatically imposing upon him the duty "to defend and protect the Constitution"? Or is the
Court to be persuaded by possible partisan prejudice or the subjective rationalization informing personal ambitions?
Reserving for further discussion the effect of Lansang upon the compelling force of the opinions in Barcelon vs.
Baker, 5 Phil. 87 and Montenegro vs. Castaeda, 91 Phil. 862, relative to the issue at hand, We cannot lightly
disregard the ponderous reasons discussed in said opinions supporting the view that the Executives choice of
means in dealing with a f rebellion should be conclusive. In Barcelon, this Court said:
Thus the question is squarely presented whether or not the judicial department of the Government
may investigate the facts upon which the legislative and executive branches of the Government
acted in providing for the suspension and in actually suspending the privilege of the writ of habeas
corpusin said provinces. Has the Governor-General, with the consent of the Commission, the right to
suspend the privilege of the writ of habeas corpus? If so, did the Governor-General suspend the writ
of habeas corpus in the Provinces of Cavite and Batangas in accordance with such authority?
A paragraph of section 5 of the act of Congress of July 1, 1902, provides:
That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of
rebellion, insurrection, or invasion the public safety may require it, in either of which events the same
may be suspended by the President, or by the Governor-General with the approval of the Philippine
Commission, whenever during such period the necessity for such suspension shall exist.
This provision of the act of Congress is the only provision giving the Governor-General and the
Philippine Commission authority to suspend the privilege of the writ of habeas corpus. No question
has been raised with reference to the authority of Congress to confer this authority upon the
President or the Governor-General of these Islands, with the approval of the Philippine Commission.
This provision of the act of Congress makes two conditions necessary in order that the President or
the Governor-General with the approval of the Philippine Commission may suspend the privilege of
the writ of habeas corpus. They are as follows:
(1) When there exists rebellion, insurrection, or invasion; and
(2) When public safety may require it.
In other words, in order that the privilege of the writ of habeas corpus may be suspended, there must
exist rebellion, insurrection, or invasion, and the public safety must require it. This fact is admitted,
but the question is, Who shall determine whether there exists a state of rebellion, insurrection, or
invasion, and that by reason thereof the public safety requires the suspension of the privilege of the
writ of habeas corpus?
It has been argued and admitted that the Governor-General, with the approval of the Philippine
Commission, has discretion, when insurrection, rebellion, or invasion actually exist, to decide
whether the public safety requires the suspension of the privilege of the writ of habeas corpus; but
the fact whether insurrection, rebellion, or invasion does actually exist is an open question, which the
judicial department of the Government may inquire into and that the conclusions of the legislative
and executive departments (the Philippine Commission and the Governor-General) of the
Government are not conclusive upon that question.
In other words, it is contended that the judicial department of the Government may consider an
application for the writ of habeas corpus even though the privileges of the same have been
suspended, in the manner provided by law, for the purposes of taking proof upon the question
whether there actually exists a state of insurrection, rebellion, or invasion.
The applicants here admit that if a state of rebellion, insurrection, or invasion exists, and the public
safety is in danger , then the President, or Governor-General with the approval of the Philippine
Commission, may suspend the privilege of the writ of habeas corpus.
Inasmuch as the President, or Governor-General with the approval of the Philippine Commission,
can suspend the privilege of the writ of habeas corpus only under the conditions mentioned in the
said statute, it becomes their duty to make an investigation of the existing conditions in the
Archipelago, or any part thereof, to ascertain whether there actually exists a state of rebellion,
insurrection, or invasion, and that the public safety requires the suspension of the privilege of the writ
of habeas corpus. When this investigation is concluded, the President, or the Governor-General with
the consent of the Philippine Commission, declares that there exist these conditions, and that the
public safety requires the suspension of the privilege of the writ of habeas corpus, can the judicial
department of the Government investigate the same facts and declare that no such conditions exist?
The act of Congress, above quoted, wisely provides for the investigation by two departments of the
Government the legislative and executive of the existing conditions, and joint action by the two
before the privilege of the writ of habeas corpus can be suspended in these Islands.
If the investigation and findings of the President, or the Governor-General with the approval of the
Philippine Commission, are not conclusive and final as against the judicial department of the
Government, then every officer whose duty it is to maintain order and protect the lives and property
of the people may refuse to act, and apply to the judicial department of the Government for another
investigation and conclusion concerning the same conditions, to the end that they may be protected
against civil actions resulting from illegal acts.
Owing to conditions at times, a state of insurrection, rebellion, or invasion may arise suddenly and
may jeopardize the very existence of the State. Suppose, for example, that one of the thickly
populated Governments situated near this Archipelago, anxious to extend its power and territory,
should suddenly decide to invade these Islands, and should, without warning, appear in one of the
remote harbors with a powerful fleet and at once begin to land troops. The governor or military
commander of the particular district or province notifies the Governor-General by telegraph (If this
landing of troops and that the people of the district are in collusion with such invasion. Might not the
Governor-General and the Commission accept this telegram as sufficient evidence and proof of the
facts communicated and at once take steps, even to the extent of suspending the privilege of the writ
of habeas corpus, as might appear to them to be necessary to repel such invasion? It seems that all
men interested in the maintainance and stability of the Government would answer this question in
the affirmative.
But suppose some one, who has been arrested in the district upon the ground that his detention
would assist in restoring order and in repelling the invasion, applies for the writ of habeas corpus,
alleging that no invasion actually exists; may the judicial department of the Government call the
officers actually engaged in the field before it and away from their posts of duty for the purpose of
explaining and furnishing proof to it concerning the existence or non-existence of the facts
proclaimed to exist by the legislative and executive branches of the State? If so, then the courts may
effectually tie the hands of the executive, whose special duty it is to enforce the laws and maintain
order, until the invaders have actually accomplished their purpose. The interpretation contended for
here by the applicants, so pregnant with detrimental results, could not have been intended by the
Congress of the United States when it enacted the law.
It is the duty of the legislative branch of the Government to make such laws and regulations as will
effectually conserve peace and good order and protect the lives and property of the citizens of the
State. It is the duty of the Governor-General to take such steps as he deems wise and necessary for
the purpose of enforcing such laws. Every delay and hindrance and obstacle which prevents a strict
enforcement of laws under the conditions mentioned necessarily tends to jeopardize public interests
and the safety of the whole people. If the judicial department of the Government, or any officer in the
Government, has a right to contest the orders of the President or of the Governor-General under the
conditions above supposed, before complying with such orders, then the hands of the President or
the Governor-General may be tied until the very object of the rebels or insurrections or invaders has
been accomplished. But it is urged that the President, or the Governor-General with the approval of
the Philippine Commission, might be mistaken as to the actual conditions; that the legislative
department the Philippine Commission might, by resolution, declare after investigation, that a
state of rebellion, insurrection, or invasion exists, and that the public safety requires the suspension
of the privilege of the writ of habeas corpus, when, as a matter of fact, no such conditions actually
existed; that the President, or Governor-General acting upon the authority of the Philippine
Commission, might by proclamation suspend the privilege of the writ of habeas corpus without there
actually existing the conditions mentioned in the act of Congress. In other words, the applicants
allege in their argument in support of their application for the writ of habeas corpus, that the
legislative and executive branches of the Government might reach a wrong conclusion from their
investigations of the actual conditions, or might, through a desire to oppress and harass the people,
declare that a state of rebellion, insurrection, or invasion existed and that public safety required the
suspension of the privilege of the writ of habeas corpus when actually and in fact no such conditions
did exist. We can not assume that the legislative and executive branches will act or take any action
based upon such motives.
Moreover it can not be assumed that the legislative and executive branches of the Government, with
all the machinery which those branches have at their command for examining into the conditions in
any part of the Archipelago, will fail to obtain all existing information concerning actual conditions. It
is the duty of the executive branch of the Government to constantly inform the legislative branch of
the Government of the condition of the Union as to the prevalence of peace and disorder. The
executive branch of the Government, through its numerous branches of the civil and military,
ramifies every portion of the Archipelago, and is enabled thereby to obtain information from every
quarter and corner of the State. Can the judicial department of the government, with its very limited
machinery for the purpose of investigating general conditions, be any more sure of ascertaining the
true conditions throughout the Archipelago, or in any particular district, than the other branches of
the government? We think not. (At p. 91-96.)
xxx xxx xxx
The same general question presented here was presented to the Supreme Court of the United States in the case
of Martin vs. Mott, in January, 1827. An act of Congress of 1795 provided
That whenever the United States shall be invaded or be in imminent danger of invasion from any
foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such
number of the militia of the State or States most convenient to the place of danger or scene of
action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose to
such officer or officers of the militia as he shall think proper.
In this case (Martin vs. Mott) the question was presented to the court whether or not the Presidents
action in calling out the militia was conclusive against the courts. The Supreme Court of the United
States, in answering this question, said: .
The power thus confided by Congress to the President is, doubtless, of a very high and delicate
nature. A free people are naturally jealous of the exercise of military power; and the power to call the
militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power
which can be executed without corresponding responsibility. It is, in its terms, a limited power,
confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the
question arises, By whom is the exigency to be adjudged of and decided? Is the President the sole
and exclusive judge whether the exigency has arisen, or is it to be considered as an open question,
upon which every officer to whom the orders of the President are addressed, may decide for himself,
and equally open to be contested by very militiaman who shall refuse to obey the orders of the
President? We are all of the opinion that the authority to decide whether the exigency has arisen
belongs exclusively to the President and his decision is conclusive upon all other persons. We think
that this construction necessarily results from the nature of the power itself and from the manifest
object contemplated by the act of Congress. The power itself is to be exercised upon sudden
emergencies, upon great occasions of state and under circumstances which may be vital to the
existence of the Union. ... If a superior officer has a right to contest the orders of the President, upon
his own doubts as to the exigency having arisen, it must be equally the right of every inferior officer
and soldier .... Such a course would be subversive of all discipline and expose the best disposed
officer to the chances of erroneous litigation. Besides, in many instances, the evidence upon which
the President might decide that there is imminent danger of invasion might be of a nature not
constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of
state which the public interest and even safety might imperiously demand to be kept in concealment.
Whenever the statute gives a discretionary power to any person, to be exercised by him upon his
own opinion of certain facts it is a sound rule of construction that the statute constitutes him the sole
and exclusive judge of the existence of those facts. And in the present case we are all of opinion that
such is the true construction of the act of 1795. It is no answer that such power may be abused, for
there is no power which is not susceptible of abuse. (Martin vs. Mott, 12 Wheat., 19 (25 U.S.);
Vanderheyden vs. Young, 11 Johns., N.Y. 150.)
Justice Joseph Story for many years a member of the Supreme Court of the United States, in
discussing the question who may suspend the privilege of the writ of habeas; corpus under the
Constitution of the United States, said:
It would seem, as the power is given to Congress to suspend the writ of habeas corpus in cases of
rebellion, insurrection, or invasion, that the right to judge whether the exigency has arisen must
conclusively belong to that body. (Story on the Constitution, 5th ed., see. 1342.)
Justice James Ket, for many years a justice of the supreme court of the State of New York, in
discussing the same question, cites the case of Martin vs. Mott, and says: .
In that case it was decided and settled by the Supreme Court of the United States that it belonged
exclusively to the President to judge when the exigency arises in which he had authority, under the
Constitution, to call forth the militia, and that his decision was conclusive upon all other persons.
(Kents Commentaries, 14th ed., vol. 1, bottom p. 323.)
John Randolph Tucker, for many years a professor of constitutional and international law in
Washington and Lee university, in discussing this question, said: .
By an act passed in 1795 Congress gave to the President power to call out the militia for certain
purposes, and by subsequent acts, in 1807, power was given to him to be exercised whenever he
should deem it necessary, for the purposes stated in the Constitution; and the Supreme Court
(United States) has decided that this executive discretion in making the call (for State militia) could
not be judicially questioned. Tucker on the Constitution, Vol. II, p. 581.)
John Norton Pomeroy, an eminent law writer upon constitutional questions, said: .
In Martin vs. Mott it was decided that under the authority given to the President by the statute of
1795, calling forth the militia under certain circumstances, the power is exclusively vested in him to
determine whether those circumstances exist; and when he has determined by issuing his call, no
court can question his decision. (Pomeroys Constitutional Law, sec. 476.)
Henry Campbell Black, a well-known writer on the Constitution, says:
By an early act of Congress it was provided that in case of an insurrection in any
State against the government thereof it shall be lawful for the President of the United
States, on application of the legislature of such State, or of the executive (when the
legislature can not be convened), to call forth such a number of the militia of any
other State or States as may be applied for, as he may judge sufficient to suppress
such insurrection. By this act the power of deciding whether the exigency has arisen
upon which the Government of the United States is bound to interfere is given to the
President. (Blacks Constitutional Law, p. 102.)
Judge Thomas M. Cooley, in discussing the right of the judicial department of the Government to
interfere with the discretionary action of the other departments of the Government, in his work on
constitutional law, said:
Congress may confer upon the President the power to call them (the militia) forth,
and this makes him the exclusive judge whether the exigency has arisen for the
exercise of the authority and renders one who refuses to obey the call liable to
punishment under military law. (Cooleys Principles of Constitutional Law, p. 100.).
But it may be argued by those who contend for the contrary doctrine, to wit, that the acts of the Governor-General,
with the approval of the Philippine Commission, are not conclusive upon the courts and that none of the foregoing
citations are exactly in point, that none of these cases or authors treat of a case exactly like the one presented. We
are fortunate, however, in being able to cite, in answer to that contention, the case of Henry William Boyle, where
exactly the same question was presented to the supreme court of the State of Idaho, which the applicants present
here and where the courts held the doctrine of the cases applied. In the case of Boyle, he had been arrested after
the privilege of the writ of habeas corpus had been suspended. He applied for a writ of habeas corpus to the
supreme court of Idaho, alleging, among other things, in his application:
First: That no insurrection, riot, or rebellion now exists in Shoshone
County; and
Second. That the Governor has no authority to proclaim martial law or suspend the writ of habeas
corpus.
In reply to this contention on the part of the applicant, Boyle, the court said:
Counsel have argued ably and ingeniously upon the question as to whether the authority to suspend
the writ of habeas corpus rests with the legislative and executive powers of the Government, but,
from our views of this case, that question cuts no figure. We are of the opinion that whenever, for the
purpose of putting down insurrection or rebellion, the exigencies of the case demand it, with the
successful accomplishment of this end in view, it is entirely competent for the executive or for the
military officer in command, if there be such, either to suspend the writ or disregard it if issued. The
statutes of this State (Idaho) make it the duty of the governor, whenever such a state or condition
exists as the proclamation of the governor shows does exist in Shoshone County, to proclaim such
locality in a state of insurrection and to call in the aid of the military of the State or of the Federal
Government to suppress such insurrection and reestablish permanently the ascendency of the law.
It would be an absurdity to say that the action of the executive, under such circumstances, may be
negatived and set at naught by the judiciary, or that the action of the executive may be interfered
with or impugned by the judiciary. If the courts are to be made a sanctuary, a seat of refuge
whereunto malefactors may fall for protection from punishment justly due for the commission of
crime they will soon cease to be that palladium of the rights of the citizen so ably described by
counsel.
On application for a writ of habeas corpus, the truth of recitals of alleged facts in a proclamation
issued by the governor proclaiming a certain county to be in a state of insurrection and rebellion will
not be inquired into or reviewed. The action of the governor in declaring Shoshone County to be in
state of insurrection and rebellion, and his action in calling to his aid the military forces of the United
States for the purpose of restoring good order and the supremacy of the law, has the effect to put in
force, to a limited extent, martial law in said county. Such action is not in violation of the Constitution,
but in harmony with it, being necessary for the preservation of government. In such case the
Government may, like an individual acting in self-defense, take those steps necessary to preserve its
existence. If hundreds of men can assemble themselves and destroy property and kill and injure
citizens, thus defeating the ends of government, and the Government is unable to take all lawful and
necessary steps to restore law and maintain order, the State will then be impotent if not entirely
destroyed, and anarchy placed in its stead.
It having been demonstrated to the satisfaction of the governor, after some six or seven years of
experience, that the execution of the laws in Shoshone County through the ordinary and established
means and methods was rendered practically impossible, it became his duty to adopt the means
prescribed by the statute for establishing in said county the supremacy of the law and insuring the
punishment of those by whose unlawful and criminal acts such a condition of things has been
brought about; and it is not the province of the courts to interfere, delay, or place obstructions in the
path of duty prescribed by law for the executive, but rather to render him all the aid and assistance in
their power, in his efforts to bring about the consummation most devoutly prayed for by every good,
law-abiding citizen in the State. (In re Boyle, 45 L.R.A., 1899, 832.) (At pp. 99-104.).
These observations are followed on pages 104 to 115 by a compilation of decided cases centrally holding that
"whenever the Constitution or a statute gives a discretionary power to any person, to be exercised by him upon his
own opinion of certain facts, such person is to be considered the sole and exclusive judge of the existence of those
facts." For the sake of brevity, We shall not quote the discussion anymore. We are confident there can be no dissent
insofar as the general proposition stated is concerned.
Notably, in the unanimous decision of this Court in Montenegro, these views are totally adopted in a very brief
passage thus:
B. In his second proposition appellant insists there is no state of invasion, insurrection, rebellion or
imminent danger thereof. There are he admits intermittent sorties and lightning attacks by
organized bands in different places; but, he argues, such sorties are occassional, localized and
transitory. And the proclamation speaks no more than of overt acts of insurrection and rebellion, not
of cases of invasion, insurrection or rebellion or imminent danger thereof. On this subject it is noted
that the President concluded from the facts recited in the proclamation, and others connected
therewith, that there is actual danger of rebellion which may extend throughout the country. Such
official declaration implying much more than imminent danger of rebellion amply justifies the
suspension of the writ.
To the petitioners unpracticed eye the repeated encounters between dissident elements and military
troops may seem sporadic, isolated or casual. But the officers charged with the Nations security
analyzed the extent and pattern of such violent clashes and arrived at the conclusion that they are
warp and woof of a general scheme to overthrow this government vi et armis, by force and arms.
And we agree with the Solicitor General that in the light of the views of the United States Supreme
Court thru Marshall, Taney and Story quoted with approval in Barcelon vs. Baker (5 Phil., 87, pp. 98
an 100) the authority to decide whether the exigency has arisen requiring suspension belongs to the
President and his decision is final and conclusive upon the courts and upon all other persons.
Indeed as Justice Johnson said in that decision, whereas the Executive branch of the Government is
enabled thru its civil and military branches to obtain information about peace and order from every
quarter and corner of the nation, the judicial department, with its very limited machinery can not be in
better position to ascertain or evaluate the conditions prevailing in the Archipelago. (At pp. 886-887.)
There are actually many more judicial precedents and opinions of knowledgeable and authoritative textwriters, that
can be copied here, maintaining with inexorable logic why the Executive is incomparably best equipped and
prepared to cope with internal and external aggression and that, indeed, the protection of the country against such
contingencies is his sole responsibility not supposed to be shared by the Judiciary. But the proposition appears to
Us so plain and ineluctable that to summon all of them to Our assistance could only open Us to the suspicion that
the Philippine Supreme Court has to depend on borrowed thinking to resolve the most critical issues between
individual rights, on the one hand, and state power exerted as a matter of self-defense against rebellion and
subversion imperilling the countrys own survival, on the other. Emphatically, We dont have to. Thank God We have
enough native genius and indigenous means and resources to cope with the most delicate problems of statehood.
Let others listen to and abide by the platitudinous and elegantly phrased dicta in Milligan, supra, Duncan and
White,
14
they who are in and of the wealthiest and mightiest power in the world, that only actual military combat and
related operations can justify martial law, but We, who are in and of a small and weak developing nation, let us hearken
and follow the home-spun advice of our barrio folks cautioning everyone thus:
Kung ang bahay mo ay pawid at kawayan pagdilim ng ulap at lumalakas na ang hanging magsara
ka na ng bintana at suhayan mo ang iyong bahay. (When your house is made of nipa and bamboo,
and you see the clouds darkening and the winds start blowing, it is time for you to close your
windows and strengthen the support of your house.)
This could explain why under the Constitution, martial law can be declared not only in case of actual rebellion, but
even only when there is imminent danger thereof. And that is why the open court rule established in Milligan and
reiterated in Duncan and White is not controlling in this jurisdiction.
Besides, inasmuch as our people have included in the Constitution an express commitment of the power to the
President, why do We have to resort to the pronouncements of other courts of other countries wherein said power is
only implied? Regardless of what other courts believe their Executive may do in emergencies, our task is not to
slavishly adopt what those courts have said, for there is no evidence that such was the intent of our constitutional
fathers. gather, We should determine for Ourselves what is best for our own circumstances in the Philippines, even
if We have to give due consideration to the experience other peoples have gone through under more or less similar
crises in the past.
In any event, regardless of their weight insofar as the suspension of the privilege of the writ of habeas corpus is
concerned, We consider the reasons given in the above-quoted opinions in Barcelon and Montenegro of particular
relevance when it comes to the imposition of martial law.
4
It may be that the existence or non-existence or imminence of a rebellion of the magnitude that would justify the
imposition of martial law is an objective fact capable of judicial notice, for a rebellion that is not of general knowledge
to the public cannot conceivably be dangerous to public safety. But precisely because it is capable of judicial notice,
no inquiry is needed to determine the propriety of the Executives action.
Again, while the existence of a rebellion may be widely known, its real extent and the dangers it may actually pose
to the public safety are not always easily perceptible to the unpracticed eye. In the present day practices of
rebellion, its inseparable subversion aspect has proven to be more effective and important than "the rising (of
persons) publicly and taking arms against the Government" by which the Revised Penal Code characterizes
rebellion as a crime under its sanction (Art. 134, Revised Penal Code). Subversion is such a covert kind of anti-
government activity that it is very difficult even for army intelligence to determine its exact area of influence and
effect, not to mention the details of its forces and resources. By subversion, the rebels can extend their field of
action unnoticed even up to the highest levels of the government, where no one can always be certain of the
political complexion of the man next to him, and this does not exclude the courts. Arms, ammunitions and all kinds
of war equipment travel and are transferred in deep secrecy to strategic locations, which can be ones neighborhood
without him having any idea of what is going on. There are so many insidious ways in which subversives act, in fact
too many to enumerate, but the point that immediately suggests itself is that they are mostly incapable of being
proven in court, so how are We to make a judicial inquiry about them that can satisfy our judicial conscience?
The Constitution definitely commits it to the Executive to determine the factual bases and to forthwith act as
promptly as possible to meet the emergencies of rebellion and invasion which may be crucial to the life of the nation.
He must do this with unwavering conviction, or any hesitancy or indecision on his part will surely detract from the
needed precision in his choice of the means he would employ to repel the aggression. The apprehension that his
decision might be held by the Supreme Court to be a transgression of the fundamental law he has sworn to "defend
and preserve" would deter him from acting when precisely it is most urgent and critical that he should act, since the
enemy is about to strike the mortal blow. Different men can honestly and reasonably vary in assessing the
evidentiary value of the same circumstance, and the prospect of being considered as a constitutional felon rather
than a saviour of the country should the Justices disagree with him, would put the Executive in an unenviable
predicament, certainly unwise and imprudent for any Constitution to contemplate he should be in. But what is worse
is that the Court is not equipped in any way with the means to adequately appreciate the insidious practices of
subversion, not to say that it cannot do it with more or at least equal accuracy as the Executive. Besides, the Court
would then be acting already with considerable hindsight considerations which can imperceptibly influence its
judgment in overriding the Executives finding.
More than ever before, when rebellion was purely a surface action, and viewing the matter from all angles, it
appears ineludible that the Court should refrain from interfering with the Executives delicate decision. After all, the
sacred rights of individuals enshrined in the Bill of Rights and the other constitutional processes ever valuable to the
people, but which admittedly cannot, by the way, be more important than the very survival of the nation, are not
necessarily swept away by a state of martial law, for, as already pointed out earlier, the validity of the Proclamation
is one thing, the administration of the government under it is something else that has to be done with the closest
adherence to the fundamental law that the obvious necessities of the situation will permit. As We see it, it is in this
sense that the Constitution is the supreme law equally in times of peace and of war and for all classes of men, if We
must refer again to petitioners reliance on Milligan. At the same time, let us not overlook, in connection with this
favorite authority of petitioners, that the Federal Supreme Courts postulation therein, that it was "happily proved by
the result of the great effort to throw off (the) just authority" of the United States during the Civil War that the
constitution of that country contains within itself all that is necessary for its preservation, is not factually accurate, for
all the world knows that if the American Union survived the ordeal of possible disintegration and is the great nation
that she is today, it was not because President Lincoln confined himself strictly to the powers vested in the
presidency by the constitution, but because he was wise enough to resort to inherent extraconstitutional state
prerogatives, exercisable by the Executive alone, which President Marcos did not have to do, considering that our
Constitution expressly confers upon him the authority to utilize such state power in defense of the nation.
5
The historical development of the powers of the Philippine Executive unmistakably points to the same direction.
Practically all the constitutions that came into being during the revolutionary period before the turn of the last
century, of which the Malolos Constitution is typical, either entrusted executive power to a commission or made the
Executive largely dependent on the legislature. When the Americans ended their military occupation, after subduing
the Aguinaldo forces of independence, they had their own version of governmental powers. In the Philippine Bill of
1902, nothing was mentioned about martial law, and the power of the Governor General to suspend the privilege of
the writ of habeas corpus was conditioned on, among other things, the concurrence of the Philippine Commission of
which, notably, the Governor General was the head. When in 1905, the Governor General suspended the Privilege
in the provinces of Cavite and Batangas, the case of Barcelon vs. Baker, supra, arose. Over the dissent of Justice
Willard who invoked Milligan, the Supreme Court held that the proclamation ordering such suspension was not
reviewable by the Judiciary.
With a little touch of irony, in 1916, when the United States Congress, with the avowed intent of granting greater
political autonomy to the Philippines, enacted the Jones Law, it removed the need for legislative concurrence in
regards to the suspension of the Privilege, because the legislature was to be in Filipino hands, and in addition to
preserving such power of suspension, granted the Governor-General the sole authority to declare martial law,
subject only to revocation by the President of the United States. Without forgetting that at that time, the Governor-
General being then an American, those powers served as weapons of the colonizer to consolidate its hold on the
subject people, such plenitude of power in the Executive was to appear later to the Filipino leaders as something
that should be adopted in our fundamental law. So it was that in the Constitutional Convention of 1934, the first the
Philippines ever held in peace time, the delegates, drawing heavily from the experience of the country during the
autonomous period of the Jones Law, and perchance persuaded in no small measure by the personality of
President Manuel L. Quezon, lost no time in adopting the concept of a strong executive. Their decision was studied
and deliberate. Indeed, it is the unanimous observation of all students of our Constitution, that under it, we have in
the Philippines the strongest executive in the world. Fully aware of this feature and appearing rather elated by the
apparent success of the delegates to reconcile the possible evils of dictatorship with the need of an executive who
"will not only know how to govern, but will actually govern", President Claro M. Recto of the Convention remarked in
his valedictory address adjourning the Assembly as follows:
During the debate on the Executive Power it was the almost unanimous opinion that we had
invested the Executive with rather extraordinary prerogatives. There is much truth in this assertion.
But it is because we cannot be insensible to the events that are transpiring around us, events which,
when all is said and done, are nothing but history repeating itself. In fact, we have seen how
dictatorships, whether black or red, capitalistic or proletarian, fascistic or communistic, ancient or
modern, have served as the last refuge of peoples when their parliaments fail and they are already
powerless to save themselves from misgovernment and chaos. Learning our lesson from the truth of
history, and determined to spare our people the evils of dictatorship and anarchy, we have thought it
prudent to establish an executive power which, subject to the fiscalization of the Assembly, and of
public opinion, will not only know how to govern, but will actually govern, with a firm and steady
hand, unembarrassed by vexations, interferences by other departments, or by unholy alliances with
this and that social group. Thus, possessed with the necessary gifts of honesty and competence,
this Executive will be able to give his people an orderly and progressive government, without need of
usurping or abdicating powers, and cunning subterfuges will not avail to extenuate his failures before
the bar of public opinion." ("The Philippine Constitution Sources, Making, Meaning, and
Application" published by the Philippine Lawyers Association, p. 540.)
Of particular relevance to the present discussion is the fact that when an attempt was made by a few delegates led
by Delegate Salvador Araneta of Manila to subject the Executives power to suspend the privilege of the writ
ofhabeas corpus to concurrence or review by the National Assembly and the Supreme Court, the effort did not
prosper, thereby strongly indicating, if it did not make it indubitably definite, that the intent of the framers of the
fundamental law is that the Executive should be the sole judge of the circumstances warranting the exercise of the
power thus granted. In any event, the only evidence of any thinking within the convention advocating the revocation
of the Barcelon doctrine of which together with Milligan, they were or ought to have been aware, what with the best
known lawyers in the Philippines in their midst, collapsed with the rejection of the Araneta proposal.
It was in the light of this historical development of the Executive Power that in 1951, the Supreme Court decided
unanimously the case of Montenegro vs. Castaeda, supra, reiterating the doctrine of conclusiveness of the
Executives findings in the Barcelon case.
For all that it may be worthy of mention here, if only because practically the same Filipino minds, led by President
Jose P. Laurel, were largely responsible for its formulation, the Constitution of the Second Philippine Republic born
under aegis of the Japanese occupation of the Philippines during the Second World War, provided also for a strong
executive. On this point, President Laurel himself had the following to say:
The fundamental reason and necessity for the creation of a political center of gravity under the Republic is that, in
any form of government and this is especially true in an emergency, in a national crisis there must be a man
responsible for the security of the state, there must be a man with adequate powers, to face any given situation and
meet the problems of the nation. There must be no shifting of responsibility; there must be no evasion of
responsibility; and if a government is to be a real government and a scientific government there must be no two
centers of gravity but one. (2 O.G.[J.M.A.], 873 [1943].)" (The Philippine Presidency by Irene R. Cortes, p. 14.).
The foregoing is a logical follow-up of what Laurel had said in the 1934 Convention thus:
... A strong executive he is intended to be, because a strong executive we shall need, especially in the early years of
our independent, or semi-independent existence. A weak executive is synonymous with a weak government. He
shall not be a monarch or a dictator in time of profound and Octavian peace, but he virtually so becomes in an
extraordinary emergency; and whatever may be his position, he bulwarks normally, the fortifications of a strong
constitutional government, but abnormally, in extreme cases, he is suddenly ushered in as a Minerva, full-grown and
in full panoply of war, to occupy the vantage ground " the ready protector and defender of the life and honor of his
nation. (Emphasis supplied.) (The Philippine Constitution, published by the Phil. Lawyers Association, Vol. 1, 1969
Ed., p. 183.).
Thus, it is not surprising at all that without changing one word in the provision granting to the Executive the power to
cope with the emergencies under discussion, the 1971 Convention fortified thru related provisions in the transitory
portion of the Constitution the applicability of the Barcelon and Montenegro concepts of the Executives power, as
applied to the imposition of martial law, thereby weakening pro tanto as will be seen in the following pages, the
impact of Our Lansang doctrine, for the purposes of the precise issue now before Us.
At this juncture, it may be pointed out that the power granted to the Executive to place the country or any part
thereof under martial law is independent of the legislative grant to him of emergency Powers authorized under the
following provision of the 1935 Constitution:
Sec. 26. In times of war or other national emergency, the Congress may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to promulgate
rules and regulations to carry out a declared national policy. (Art. VI, sec. 26, 1935 Constitution.).
This provision is copied verbatim in the 1973 Charter except for the reference to the Prime Minister instead of to the
President and the addition of the following sentence indicating more emphatically the temporary nature of the
delegation:
Unless sooner withdrawn by resolution of the National Assembly, such powers shall cease upon its
next adjournment. (Section 15, Article VIII, 1973 Constitution of the Philippines.)
The point that immediately surges to the mind upon a reading of this provision is that in times of war or other
national emergency it is definitely to the Executive that the people thru the fundamental law entrust the running of
the government, either by delegation of the legislative power to him thru an express enactment of the Legislature to
that effect or by direct authorization from the Constitution itself to utilize all the powers of government should he find
it necessary to place the country or any part thereof under martial law. Additional evidence of such clear intent is the
fact that in the course of the deliberations in the Constitutional Convention of 1934 of the proposal to incorporate the
above provision in the charter, Delegate Wenceslao Vinzons of Camarines Norte moved to delete the same for fear
that the concentration of powers in one man may facilitate the emergence of a dictatorship. He said in part:
The power to promulgate rules and regulations in times of emergency or war is not recognized in
any constitution except, perhaps, the Constitution of Denmark, which provides that in case of special
urgency the King may, when the Reichstag is not in session, issue laws of temporary application.
Such laws, however, shall not be contrary to the Constitution, and they shall be submitted to the
Reichstag in its next session. So, even in a kingdom like Denmark, the powers of the King are
limited in times of emergency.
Under the Constitution we are drafting now, there is absolutely no limit except when the National
Assembly specifies at the inception of the grant of power.
I want to warn, Mr. President, of a future condition in our Republic when we shall no longer be under
the tutelage of any foreign power, when we shall have to work for our own destiny. I want to say that
I am not very positive in stating here that we shall have a dictatorship because the structure of the
government that we are creating permits its establishment, but the power to promulgate rules and
regulations will give rise to a strong man who may, in a desire to gratify his personal ambitions, seize
the reins of government." (Page 391, Volume Five, The Philippine Constitution, Its Origins, Making,
Meaning, and Application, a publication of the Philippine Lawyers Association, 1972.).
Despite such eloquent warning, the assembly voted down his motion.
It is now contended that instead of declaring martial law, President Marcos should have sought from Congress the
approval of an emergency powers act similar to Commonwealth Acts 600 and 671 passed respectively on August
19, 1940, long before the Japanese invasion, and December 16,1941, when the Nippon Army was already on its
way to Manila from Lingayen and other landing points in the North.
To start with, Congress was not unaware of the worsening conditions of peace and order and of, at least, evident
insurgency, what with the numerous easily verifiable reports of open rebellious activities in different parts of the
country and the series of rallies and demonstrations, often bloody, in Manila itself and other centers of population,
including those that reached not only the portals but even the session hall of the legislature, but the legislators
seemed not to be sufficiently alarmed or they either were indifferent or did not know what to do under the
circumstances. Instead of taking immediate measures to alleviate the conditions denounced and decried by the
rebels and the activists, they debated and argued long on palliatives without coming out with anything substantial,
much less satisfactory in the eyes of those who were seditiously shouting for reforms. In any event, in the face of the
inability of Congress to meet the situation, and prompted by his appraisal of a critical situation that urgently called for
immediate action, the only alternative open to the President was to resort to the other constitutional source of
extraordinary powers, the Constitution itself.
It is significant to note that Commonwealth Act 671 granted the President practically all the powers
of government. It provided as follows:
Sec. 1. The existence of war between the United States and other countries of Europe and Asia,
which involves the Philippines, makes it necessary to invest the President with extraordinary powers
in order to meet the resulting emergency.
Sec. 2. Pursuant to the provisions of Article VI, section 16, of the Constitution, the President is
hereby authorized, during the existence of the emergency, to promulgate such rules and regulations
as he may deem necessary to carry out the national policy declared in section 1 hereof. Accordingly
he is, among other things, empowered (a) to transfer the seat of the Government or any of its
subdivisions, branches, departments, offices, agencies or instrumentalities; (b) to reorganize the
Government of the Commonwealth including the determination of the order of precedence of the
heads of the Executive Departments; (c) to create new subdivisions, branches, departments, offices,
agencies or instrumentalities of government and to abolish any of those already existing; (d) to
continue in force laws and appropriations which would lapse or otherwise become inoperative, and
to modify or suspend the operation or application of those of an administrative character; (e) to
impose new taxes or to increase, reduce, suspend, or abolish those in existence; (f) to raise funds
through the issuance of bonds or otherwise, and to authorize the expenditure of the proceeds
thereof; (g) to authorize the National, provincial, city or municipal governments to incur in overdrafts
for purposes that he may approve; (h) to declare the suspension of the collection of credits or the
payment of debts; and (i) to exercise such other powers as he may deem necessary to enable the
Government to fulfill its responsibilities and to maintain and enforce its authority.
Sec. 3. The President of the Philippines shall as soon as practicable upon the convening of the
Congress of the Philippines report thereto all the rules and regulations promulgated by him under the
powers herein granted.
Sec. 4. This act shall take effect upon its approval, and the rules and regulations promulgated
hereunder shall be in force and effect until the Congress of the Philippines shall otherwise provide.
From this extensive grant of immense powers, it may be deduced that the difference between martial law and the
delegation of legislative power could be just a matter of procedure in that the investment of authority in the former is
by the Constitution while in the latter it is by the Legislature. The resulting constitutional situation is the same in both
government by the Executive. It can be said that even the primacy of military assistance in the discharge of
government responsibilities would be covered by the exercise of the delegated authority from Congress.
What is most important, however, is that the Constitution does not prohibit the declaration of martial law just
because of the authority given to the Legislative to invest the Executive with extraordinary powers. It is not to be
supposed that in the face of the inability or refusal of the Legislature to act, the people should be left helpless and
without a government to cope with the emergency of an internal or external aggression. Much less is it logical to
maintain that it is the Supreme Court that is called upon to decide what measures should be taken in the premises.
Indeed, the fundamental law looks to the Executive to make the choice of the means not only to repel the
aggression but, as a necessary consequence, to undertake such curative measures and reforms as are immediately
available and feasible to prevent the recurrence of the causes of the emergency.
Petitioners are capitalizing on the pronouncements of this Court in Lansang. We feel, however, that such excessive
reliance is not altogether well placed.
The exact import of the Lansang doctrine is that it is within the constitutional prerogative of the Supreme Court to
inquire into the veracity of the factual bases recited by the Executive in a proclamation ordering the suspension of
the privilege of the writ of habeas corpus, for the purpose of determining whether or not the Executive acted
arbitrarily in concluding from the evidence before him that there was indeed a rebellion and that public necessity, as
contemplated in the Constitution, required such suspension. In other words, We held therein that the issue of legality
or illegality of a proclamation suspending the Privilege is a justiciable one, in regard to which the Court could make
independent findings based on the evidence on which the President himself acted. Actually, however, no real
hearing was held for the purpose in that case. What might perhaps be considered as such a hearing was what took
place on October 28 and 29,1971, when, because of the willingness expressed by the respondents therein to impart
to the Court classified information relevant to the cases, subject to appropriate security measures, the Court met
behind closed doors, and in the presence of three attorneys representing the petitioners therein and the Solicitor
General it was briefed by the Chief of Staff of the Armed Forces and other ranking military officials on said classified
information, after which the parties were granted time to file their respective memoranda of observations on the
matters revealed in the briefing, which they did. (See 42 SCRA, at pp. 466-467). In the present cases there has
been no such hearing, not even a briefing wherein petitioners were represented. And it is gravely doubtful whether
any move in that direction would prosper, considering there are not enough members of the Court, who believe in
the juridical relevance thereof, to constitute the required majority for a binding action to order such a hearing or even
just a similar briefing as before.
Be that as it may, the important point is that Lansang referred to the extent of the powers of the Court in regard to a
proclamation suspending the Privilege whereas what is before Us now is a proclamation imposing martial law. We
hold that the powers of the Executive involved in the two proclamations are not of the same constitutional level and
the prerogatives of the Court relative to habeas corpus are distinct from those in the perspective of martial law.
To start with, it is too evident to admit of dispute that the aforequoted constitutional provision touching on the three
powers of the Executive, the calling of the armed forces, the suspension of the privilege and the imposition of martial
law contemplates varying and ascending degrees of lawlessness and public disorder. While it is true that textually
any of the three courses of action mentioned may be taken by the Executive on the occasion of an invasion,
insurrection or rebellion, the degree of resulting repression of individual rights under each of them varies so
substantially that it cannot be doubted that the constitution contemplates that the determination as to which of them
should be taken should depend on the degree of gravity of the prevailing situation. In other words, it is the actual
magnitude of the rebellion to be suppressed and the degree and extent of danger to public safety resulting
therefrom that determines whether it should be the first, the second or the third that should be taken in order that
there may be a direct proportion between the degree of gravity of the crisis and the restraint of individual rights and
liberties. When the situation is not very serious but is nevertheless beyond the control of the regular peace
authorities of the place affected, then the armed forces can be called. Should the conditions deteriorate in such a
way as to involve a considerable segment of the population, thereby making it difficult to maintain order and to
differentiate the loyal From the disloyal among the people, without detaining some of them, either preventively or for
their delivery to the proper authorities after the emergency or as soon as it eases, then the privilege of the writ
of habeas corpus may also be suspended. But the moment the situation assumes very serious proportions, to the
extent that there is a breakdown of the regular government machinery either because the officials cannot physically
function or their functioning would endanger public safety, martial law may be imposed. There is thus a marked
gradation of the circumstances constituting rebellion and danger to public safety in the provision, and it is to be
supposed that the measure to be adopted by the Executive should be that which the situation demands.
The calling of the armed forces is done by the Executive in his capacity as Commander-in-Chief. The power thus
exercised is purely executive and does not cause any disturbance in the constitutional order in the government. In
the case of suspension of the Privilege, individual rights guaranteed by the Bill of Rights are restrained, but
otherwise the regular constitutional machinery and the powers and functions of the different officials of the
government, including the courts, remain unaffected. Moreover, the suspension of the Privilege, although premised
on the demand of public safety, need not be necessarily predicated on the requirements of national security as
should be the case with martial law. Again, the power exercised in suspension is executive power and nothing more.
But when martial law is proclaimed, there is, as already observed earlier, a surrogation of the regular government
machinery by the constitutionally designated administrator with the aid of the military. What is exercised in this
instance is not executive power alone but state power which involves the totality of government authority, but
without an actual military takeover, if only because the civilian President remains at the head.
In this connection, it is very important to note that whereas the Bill of Rights explicitly prohibits the suspension of the
Privilege of the writ of habeas corpus except under the detailed circumstances prescribed therein, including the
limitations as to the time and place when and where it may stay suspended, there is no similar injunction in regard to
the imposition of martial law. In other words, the grant of the power to declare martial law in the Executive portion of
the Constitution is not countered, unlike in the case of habeas corpus, by a prohibition in the Bill of Rights, the
sanctuary of individual liberties.
Invoking Lansang, petitioners argue that if an order of suspension of the Privilege which involves less repression of
constitutional processes than martial law is reviewable by the courts, with more reason should the imposition of
martial law, whose effect upon the constitutional rights and processes is more pervasive, be subject to a judicial test
of constitutionality. Viewing it from the angle of individual rights, the argument sounds plausible, but when it is
considered that the framers of the Bill of Rights never bothered to put the same or any similar breaks to the
imposition of martial law as that which they placed in regard to suspension, it can be readily seen that because of
the gravity of the crisis predicating the extreme remedy of martial law, the constitution itself makes the invocation of
individual rights subordinate to the national interest involved in the defense of the state against the internal
aggression that confronts it. From this consideration, it follows that whatever standard of constitutionality was
established by the Court in Lansang relative to Suspension is not necessarily the measure of the powers the Court
can exercise over the Executives proclamation of martial law. What the Constitution purposely and with good
reason differentiates, the Court may not equate.
At any rate, We do not believe this is the proper occasion for the Court to alter or modify what We said in Lansang.
All that We say here is that Lansang does not reach the martial law powers of the Executive, if only because that
case involved exclusively the question of legality of the detention, during the Suspension, of some individuals, the
petitioners therein, whereas here We are dealing with the deprivation of liberty of petitioners as a direct
consequence of martial law, and in effect the real question before Us now is the legality of the martial law regime
itself, which, as already demonstrated, occupies a different level in the constitutional order of Executive power,
specially when considered from the point of view of the Bill of Rights.
But even if We must refer to the considerations of the Court in formulating Lansang, We cannot disregard the impact
of contemporary constitutional developments related thereto. The Convention of 1971 had barely started its relevant
deliberations when Lansang was decided. It is to be assumed that the delegates were well informed about its
import. Indeed, they must have focused their attention thereto when martial law was proclaimed in September of
1972, if only because some of the delegates were apprehended and detained and had forthwith filed the petitions
now pending before Us. The delegates knew or ought to have known that under the existing Constitution, the Bill of
Rights made no mention of the possible imposition of martial law in the section prohibiting the suspension of the
privilege of the writ of habeas corpus. Instead of seeing to it that in the charter they were drafting the prohibition as
to habeas corpus should be extended to the declaration of martial law, in order to make the contingency thereof as
difficult as in the case of the former, they evidently found more reason to concur in the construction pursued by
President Marcos of the prerogatives which the Constitution empowers him to utilize during a rebellion or invasion.
Accordingly, to erase further doubts on the matter, the Convention enacted the transitory provision earlier referred to
making the Proclamation, among others, part of the law of the land, which provision, We deem, at this point, not as
a fiat placing the Proclamation definitely beyond the pale of unconstitutionality, but as a contemporary authoritative
construction of the current charter by the body precisely called to examine it carefully and determine its defects that
should be corrected, to the end that the rights of the people may be best safeguarded. Verily, such construction is
entitled to due respect from Us, particularly because it has been in effect, if not directly, approved by the people, not
only in the referendum of January 10-15, 1973 assailed by petitioners but in the other one held by secret ballot on
July 27-28, 1973 under the supervision of the Commission on Elections. And in the light of such construction, Our
considered view is that Lansang is not controlling on the issues regarding martial law involved in these cases.
Perhaps, it may not be amiss to add here that although the records of the Constitutional Convention of 1934 do not
reveal the actual reasons for the rejection of the amendment proposed by Delegate Vicente J. Francisco to include
in the Bill of Rights provision regarding habeas corpus the reference made to imminent danger of invasion,
insurrection or rebellion in the enumeration of the powers of the Executive relative to the same subject, it is quite
possible that in the mind of the convention it was not absolutely necessary to suspend the Privilege when the
danger is only imminent unless the element of public safety involved already requires the imposition of martial law.
Relatedly, Delegate Araneta who as earlier mentioned, proposed to subject the suspension of the Privilege to
legislative or judicial concurrence or review, and who appeared to be the most bothered, among the delegates,
about the exertion of executive power during the emergencies contemplated, never said a word against the manner
in which the Executive was being granted the authority to impose martial law, much less proposed any restriction
upon it the way he did with the suspension of the Privilege. This goes to show that the feeling in the assembly was
to regard martial law differently from the suspension and to recognize that its imposition should not be tramelled nor
shackled by any provision of the Bill of Rights.
7
There are insurmountable pragmatic obstacles to the theory of justiciability sustained by petitioners. .
The most important of this is that there is no known or recognized procedure which can be adopted in the proposed
inquiry into the factual bases of the Executives proclamation to insure that the degree of judicious and fair hearing
and determination of facts might be approximated. Admittedly, the ordinary rules of pleading, practice and evidence
are out of the question. The relevant elemental facts are scattered throughout the length and breath of the country,
and there is no conceivable judicial camera that can catch the whole picture with adequate fidelity to the truth.
Perhaps judicial notice can help, but the elements of public safety are not properly susceptible of judicial notice
when it comes to covert subversive activities. The problems of demonstration are manifold, and when it is borne in
mind that, in the very nature of things and under universally accepted norms of state protection, there is a wall,
impenetrable even to the judiciary, behind which the state rightfully keeps away from other Departments matters
affecting national security, one will realize the futility of believing that the Court can, assuming it were, by some
curious way of reasoning, legally required to do so, properly perform its judicial attributes when it comes to
determining in the face of an apparently nationwide rebellion, whether or not martial law should be proclaimed by
the Executive, instead of resorting to the lesser remedies of calling the armed forces or suspending the Privilege.
Besides, for the Court to be able to decide whether or not the action of the Executive is arbitrary, it must, in justice to
both parties, and to him in particular, act in the light of the same evidence from which he drew his conclusion. How
can such evidence be all gathered and presented to the Court?
Some members of the Court are of the firm conviction that it is Our constitutional duty to indulge in the suggested
inquiry, so We can be assured in Our own conscience, and for the protection of the people, whether or not President
Marcos has acted arbitrarily. But prescinding from the difficulties of demonstration just discussed, from what
evidence is the Court going to draw its own conclusions in the cases at bar, when We have not even been told what
evidence the President had before him, except those that may be inferred from the whereases of the Proclamation
which are disputed by petitioners? On the other hand, how can We have all the evidence before US, when in the
very nature thereof We cannot have access to them, since they must be kept under the forbidding covers of national
security regulations? Even the standing ordinary rules of evidence provide in this respect thus: .
SEC. 21. Privileged communication.
xxx xxx xxx
(e) A public officer cannot be examined during his term of office or afterwards, as to communications
made to him in official confidence, when the court finds that the public interest would suffer by the
disclosure. (Rule 130, Revised Rules of Court of the Philippines).
The inevitable conclusion is that the Constitution must have intended that the decision of the Executive should be
his alone.
If We should hold that the matter before Us is justiciable, the practical result would be that even if the Court should
now decide in the style of Lansang that the President did not act arbitrarily in issuing the Proclamation, We would
have to be ready to entertain future petitions, one after the other, filed by whosoever may be minded to allege, for
his own purpose, that conditions have so improved as to warrant the lifting of martial law. Accordingly, every now
and then the Court would have to hear the parties and evaluate their respective evidence. The Government would
have to appear and prove all over again the justifications for its action. The consequence would be that instead of
devoting his time to the defense of the nation, the President would be preparing himself for the court battle. It is
ridiculous to think that the members of the Constitutional Convention had conceived placing such difficulties in the
way of the Executive which make of his function of defending the state a continuous running battle in two separate
fronts, one with the enemy another with the courts. It is suggested that the Court can summarily dismiss any such
future petitions in cavalier fashion by simply holding on to the finding We would make in these cases. But new
allegations and arguments are bound to be made, and it is definitely improper for Us to just summarily uphold the
Executive everytime a case comes up.
What is more absurd is that the Supreme Court is not the only court in which a petition to lift may be filed. Imagine if
petitions were filed in two or three Courts of First Instance, what would happen? In this connection, We are in no
position to enjoin the lower courts to entertain such petitions because they may refer to the proposed lifting of
martial law only in the respective provinces where the courts are, and We cannot hold, precisely because of Our
own characterization of the nature of the issue as justiciable, or more simply that the Proclamation is subject to the
review of factual bases by the court, that any of said courts is without jurisdiction to entertain the petition. Stated
otherwise, every court would then be open to pass on the reasonability or arbitrariness of the Presidents refusal or
failure to lift martial law. We do not mean to insinuate that the lower court judges may not be prepared for the
purpose, but the spectacle alone of several of such petitions pending in various courts, without visualizing anymore
the potentiality of one judge or another upholding the proponent, is something that will not only foreseeably
complicate our international relations but will also detract from our image as a people trained in the field of
government. All of these considerations suggest again that it is best that the Judiciary abstain from assuming a role
not clearly indicated in the Constitution to pertain to it.
C
THE SUPREME COURT ABSTAINS FROM REVIEWING PROCLAMATION 1081, BECAUSE, IN THE LIGHT OF
THE CONSIDERATIONS HEREIN DISCUSSED, IT IS CONVINCED THAT THE CONSTITUTION
CONTEMPLATES THAT THE DECLARATION OF MARTIAL LAW SHOULD BE THE RESPONSIBILITY SOLELY
OF THE EXECUTIVE, BUT SHOULD ANY OCCASION OF OPEN DEFIANCE AND MANIFEST DISREGARD OF
THE PERTINENT CONSTITUTIONAL PROVISION ARISE, THE COURT IS NOT POWERLESS TO "SUPPORT
AND DEFEND" THE CONSTITUTION.
The greatest fear entertained by those who would sustain the Courts authority to review the action of the President
is that there might be occasions when an Executive drunk with power might without rhyme or reason impose martial
law upon the helpless people, using the very Constitution itself as his weapon of oppression to establish here a real
dictatorship or totalitarian government. The view is that it is only the Supreme Court that can prevent such a dismal
eventuality by holding that it has the final authority and inescapable duty to define the constitutional boundaries of
the powers of the Executive and to determine in every case properly brought before it whether or not any such
power has been abused beyond the limits set down by the fundamental law, and that unless We hold here that the
Court can determine the constitutional sufficiency of Proclamation 1081 in fact and in law, the Filipino people would
have no protection against such in abusive Executive.
We here declare emphatically that such apprehension is definitely unfounded. Precisely, in this decision, We are
holding that the Court has the jurisdiction, the power and the authority to pass on any challenge to an Executives
declaration of martial law alleged in a proper case affecting private or individual rights to be unwarranted by the
Constitution. In these cases, however, we do not see any need for the interposition of our authority. Instead what
appears clear to Us, in the light of the considerations We have discuss above, and so We hold, is that the Solicitor
General is eminently correct in contending that in the circumstantial and constitutional milieu of the impugned
Proclamation, We should abstain from conducting the suggested inquiry to determine their constitutional sufficiency.
In the way We see the martial law provision of the Constitution, only two hypotheses can be considered relative to
the Constitutional problem before Us. Either the Executive acts in conformity with the provision or he does not. In
other words, either he imposes martial law because there is actually a rebellion endangering the public safety or he
does it for his own personal desire to grab power, notwithstanding the absence of the factual grounds required by
the fundamental law. In the latter case, the Court would have the constitutional power and duty to declare the
proclamation issued null and void. But to do this it does not have to conduct a judicial inquiry by the reception of
evidence. It should be guided solely by facts that are of judicial notice. Thus, if the predicative recitals of the
proclamation are confirmed by facts of general public knowledge, obviously any further inquiry would be
superfluous. On the other hand, in the contrary hypothesis, that is, it is publicly and generally known that there is no
rebellion of the nature and extent contemplated in the Constitution, no amount of evidence offered by the Executive
can judicially create such a rebellion. Indeed, as observed elsewhere in this opinion, a rebellion that does not come
to the judicial notice of the Court cannot warrant the imposition of martial law, particularly in reference to one
imposed over the whole country. But once it is known to the Court by judicial notice that there is a rebellion, it would
constitute anundue interference with the constitutional duties and prerogatives of the Executive for the Court to
indulge in an inquiry as to the constitutional sufficiency of his decision. Whether or not public safety requires the
drastic action of imposing martial law already involves the exercise of judgment, which as far as We can see is
committed to the responsibility of the Executive as the protector and defender of the nation. Our considered view is
that in such circumstances, the Constitution rather expects the Court to defer to his decision. Under this concept of
the powers of the Court relative to the exercise by the Executive of his martial law prerogatives, the Court does not
relinquish its authority as guardian of the Constitution and the Executive, guided solely by his own sense of
responsibility under his solemn oath "to defend and preserve" the Constitution, can proceed with his task of saving
the integrity of the government and the nation, without any fear that the Court would reverse his judgment.
To be sure, it could have sufficed for Us to point out, in answer to the contention about possible abuse, that it is
axiomatic in constitutional law that the possibility that an official might abuse the powers conferred upon him by law
or by the Charter does not mean that the power does not exist or should not be granted. This Court affirmed this
principle not only in Barcelon vs. Baker, quoted supra, which was the precursor perhaps of the extreme of judicial
self-restraint or abstention in this jurisdiction but even in Angara vs. Electoral Commission, 63 Phil. 139, reputedly
the vanguard of judicial activism in the Philippines, Justice Laurel postulated reassuringly on this point in Angara
thus: "The possibility of abuse is not an argument against the concession of power as there is no power that is not
susceptible of abuse" (at p. 177). And We could have complemented this ratiocination with the observation that it is
most unlikely that the Filipino people would be penalized by Divine Providence with the imposition upon them of an
Executive with the frightening characteristics ominously portrayed by those who advocate that the Court, assuming
its own immunity from being abusive, arbitrary or improvident, should not recognize any constitutionally envisioned
deference to the other Departments of the Government, particularly the Executive.
We can feel, however, that the people need further reassurance. On this score, it is opportune to recall that
inAvelino vs. Cuenco, 83 Phil. 68, in spite of the fact that in the Resolution of March 4, 1949, this Court refused to
intervene in the controversy between the parties as to whether or not there was a valid election of a new President
of the Senate, upon the ground that the issue involved was purely political, in the subsequent Resolution of March
14, 1949, upon realizing that a critical situation, detrimental to the national interest, subsisted as a consequence of
its abstention, the Court reversed itself and assumed the power to state categorically the correct solution to the
conflict based on its interpretation of the pertinent provisions of the Constitution.
Again, in January, 1962, in the space of several hours, 350 appointments to different positions in the government,
including Justices of the Supreme Court and of the Court of Appeals and judges of the lower courts, fiscals, officers
of the Army, directors of bureaus, Governor of the Central Bank, and others were sent by the President then to the
Commission on Appointments on December 29, 1961, the day preceding his last half-day in office, December 30,
1961. Upon the said appointments being impugned in the Supreme Court, the Court, aghast by the number of and
the speed in the making of said appointments, the fact that they were made under circumstances that betrayed not
only lack of proper and deliberate consideration of the qualifications of the appointees but also an evident intent to
deprive the succeeding President from filling the vacancies that had been left vacant even after the results showing
the defeat of the incumbent President had already been publicly known and conceded, the departure from long
established practices in their preparation as well as the other undesirable circumstances that surrounded the same,
promptly struck them down as the product of an improvident exercise of power, obnoxious to the precepts
underlying the principled government conceived in the Constitution.
15
The violation of the spirit and intent of the
Constitution appeared manifest to the Court on the basis of facts which were mainly if not all of judicial notice and,
therefore, needed no further demonstration in an inquiry or investigation by the Court. Under more or less a similar setting
of circumstances, which occurred in the latter part of the term of the President whose tenure expired on December 30,
1966, the Supreme court reiterated the above ruling in Guevarra vs. Inocentes, 16 SCRA 379.
Thus everyone can see that when situations arise which on their faces and without the need of inquiry or
investigation reveal an unquestionable and palpable transgression of the Constitution, the Supreme Court has never
been without means to uphold the Constitution, the policy of judicial self-restraint implicit therein notwithstanding.
The precedents just related relate to peaceful controversies, and, of course, the alleged violation of the Constitution
by the Executive in the exercise of a power granted to him to meet the exigencies of rebellion and the dangers to
public safety it entails has to be considered from a different perspective. Even then, the Supreme Court would not
be powerless to act, Until all of its members are incarcerated or killed and there are not enough of them to constitute
a quorum, the Court would always be there ready to strike down a proclamation of martial law as unconstitutional,
whenever from the facts manifest and generally known to the people and to it, and without its having conducted any
inquiry by the reception of evidence, it should appear that the declaration is made without any rational basis
whatsoever and is predicated only on the distorted motives of the Executive. For as long, however, as the recitals or
grounds given in a proclamation accord substantially with facts of judicial notice, either because they are of public
knowledge or are by their nature capable of unquestionable demonstration, We have no reason to interfere with the
discharge by the Executive of a responsibility imposed upon him by the Constitution and in which there is no
indication therein that the Court should share. But when, as just stated, it is generally known or it is of public
knowledge that there is no rebellion or, there being one, that it poses no conceivable danger to the public safety,
and, God forbid, martial law is proclaimed, the Court, even without the need of any kind of judicial inquiry into the
facts alleged in the proclamation, will certainly act and declare the pretentious Executive a constitutional outlaw, with
the result that the regular government established by the Constitution may continue in the hands of those who are
constitutionally called upon to succeed him, unless he overcomes the legitimate government by force. In truth, such
is the only way the Supreme Court should act in discharging its duty to uphold the Constitution by the use of the
judicial power, if it is to give to the Executive or the Legislature, as the case may be, the due regard that the
Constitution contemplates should be accorded to them in consideration of their own functions hid responsibilities
implicit in the principle of separation of powers embodied therein.
II
THE CONSTITUTION IS MERELY IN A STATE OF ANAESTHESIA, SINCE A MAJOR SURGERY IS NEEDED TO
SAVE THE NATIONS LIFE.
The foregoing discussion covers, as must have been noted, the resolution not only of the issue of jurisdiction raised
by the respondents but also of the corollary question of the application of the Lansang doctrine. Not only that, from
what has been said, it is obvious that since it is to the President that the Constitution has committed the discretion to
impose martial law, it follows that he alone should have the discretion and the prerogative to declare when it should
cease or be lifted. Exactly the same considerations compelling the conclusion that the Court may not review the
constitutional sufficiency of his proclamation of martial law make it ineludible to conclude that the people have also
left it to the Executive to decide when conditions would permit the full restoration of the regular constitutional
processes. With characteristic perceptive insight, in his thesis to be cited infra, Justice Guillermo S. Santos of the
Court of Appeals, discourses on this point as follows:
44. When Martial Rule is Terminated
In both England and the United States martial rule terminates ipso facto upon the cessation of the
public emergency that called it forth. To this proposition there has been no dissent. Martial rule must
cease when the public safety no longer require its further exercise.
45. Who Terminates Martial Rule
Since the declaration of martial rule has been committed to the judgment of the President, it follows
that its termination is to be fixed by the same authority. (Barcelon vs. Baker, 1905, 5 Phil. 87.) Again,
to this view there cannot he any valid objection. It would seem only natural that since the President
has been expressly authorized to declare martial rule no other authority should he permitted to
terminate it." (Martial Law, Nature, Principles and Administration by Guillermo S. Santos, p. 75.)
Needless to say, it is our Constitution that controls in the cases at bar, not the American theory. In fact, when
President Laurel proclaimed martial law during the Second World War, he expressly provided, to avoid any doubt
about the matter, thus:
8. The proclamation of martial law being an emergency measure demanded by imperative necessity,
it shall continue as long as the need for it exists and shall terminate upon proclamation of the
President of the Republic of the Philippines.
In the interest of truth and to set Our perspective aright it may not be said that under Proclamation 1081 and the
manner in which it has been implemented, there has been a total suspension, much less an abrogation, of the
Constitution. Even textually, the ensuing orders issued by the President have left virtually unaltered the established
constitutional order in all levels of government and society except those that have to be adjusted and subjected to
potential changes demanded by the necessities of the situation and the attainment of the objectives of the
declaration. Repeatedly and emphatically, the President has solemnly reassured the people that there is no military
takeover and that the declared principle in the Constitution that "Civilian authority is at all times supreme over the
military" (Section 8, Article II, 1973 Charter) shall be rigorously observed. And earlier in this opinion, We have
already discussed how he restored the security of tenure of the members of the Court and how the judicial power
has been retained by the courts, except in those cases involving matters affecting national security and public order
and safety which the situation demands should be dealt with by the executive arms of the government.
When President Lincoln proclaimed martial law in Kentucky in 1864, he did not completely overhaul the existing
machinery, he let it continue insofar as it did not obstruct the military operations and related activities. He ordered
thus:
Whereas many citizens of the State of Kentucky have joined the forces of the insurgents, and such
insurgents have, on several occasions. entered the said State of Kentucky in large force, and, not
without aid and comfort furnished by disaffected and disloyal citizens of the United States residing
therein, have not only disturbed the public peace, but have overborne the civil authorities and made
flagrant civil war, destroying property and life in various parts of the State: And whereas it has been
made known to the President of the United States by the officers commanding the national armies,
that combinations have been formed in the said State of Kentucky with a purpose of inciting rebel
forces to renew the said operations of civil war within the said State, and thereby to embarrass the
United States armies now operating in the said State of Virginia and Georgia, and even to endanger
their safety: ... The martial law herein proclaimed, and the things in that respect herein ordered, will
not be deemed or taken to interfere with the holding of lawful elections, or with the proceedings of
the constitutional legislature of Kentucky, or with the administration of justice in the courts of law
existing therein between citizens of the United States in suits or proceedings which do not affect the
military operations or the constituted authorities of the government of the United States. (Martial
Law, Nature, Principles and Administration by Guillermo S. Santos, pp. 97-98.).
Incidentally, there is here a clear repudiation of the open court theory, and what is more, even the holding of regular
elections and legislative sessions were not suppressed.
16
Accordingly, the undeniable fact that the Philippine Congress
was in session, albeit about to adjourn, when martial law was declared on September 21, 1972 is not necessarily an
argument against the exercise by the President of the power to make such a declaration.
President Laurels own declaration of martial law during the Japanese occupation did not involve a total blackout of
constitutional government. It reads in its pertinent portions thus:
xxx xxx xxx
4. All existing laws shall continue in force and effect until amended or repealed by the President, and
all the existing civil agencies of an executive character shall continue exercising their powers and
performing their functions and duties, unless they are inconsistent with the terms of this
Proclamation or incompatible with the expeditious and effective enforcement of martial law herein
declared.
5. It shall be the duty of the Military Governors to suppress treason, sedition, disorder and violence;
and to cause to be punished all disturbances of public peace and all offenders against the criminal
laws; and also to protect persons in their legitimate rights. To this end and until otherwise decreed,
the existing courts of justice shall assume jurisdiction and try offenders without unnecessary delay
and in a summary manner, in accordance with such procedural rules as may be prescribed by the
Minister of Justice. The decisions of courts of justice of the different categories in criminal cases
within their original jurisdiction shall be final and unappealable: Provided, however, That no sentence
of death shall be carried into effect without the approval of the President.
6. The existing courts of justice shall continue to be invested with, and shall exercise, the same
jurisdiction in civil actions and special proceedings as are now provided in existing laws, unless
otherwise directed by the President of the Republic of the Philippines.
Proclamation 1081 is in no sense any more constitutionally offensive. In fact, in ordering detention of persons, the
Proclamation pointedly limits arrests and detention only to those "presently detained, as well as all others who may
hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses
committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes
against national security and the law of nations, crimes against public order, crimes involving usurpation of authority,
rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other
crimes as will be enumerated in orders that I shall subsequently promulgate, as well as crimes as a consequence of
any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction."
Indeed, even in the affected areas, the Constitution has not been really suspended much less discarded. As
contemplated in the fundamental law itself, it is merely in a state of anaesthesia, to the end that the much needed
major surgery to save the nations life may be successfully undertaken.
III
THE IMPOSITION OF MARTIAL LAW AUTOMATICALLY CARRIES WITH IT THE SUSPENSION OF THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN ANY EVENT, THE PRESIDENTIAL ORDER OF ARREST
AND DETENTION CANNOT BE ASSAILED AS DEPRIVATION OF LIBERTY WITHOUT DUE PROCESS.
The next issue to consider is that which refers to the arrest and continued detention and other restraints of the
liberties of petitioner, and their main contention in this respect is that the proclamation of martial law does not carry
with it the suspension of the privilege of the writ of habeas corpus, hence petitioners are entitled to immediate
release from their constraints.
We do not believe such contention needs extended exposition or elaboration in order to be overruled. The primary
and fundamental purpose of martial law is to maintain order and to insure the success of the battle against the
enemy by the most expeditions and efficient means without loss of time and with the minimum of effort. This is self-
evident. The arrest and detention of those contributing to the disorder and especially of those helping or otherwise
giving aid and comfort to the enemy are indispensable, if martial law is to mean anything at all. This is but logical. To
fight the enemy, to maintain order amidst riotous chaos and military operations, and to see to it that the ordinary
constitutional processes for the prosecution of law-breakers are three functions that cannot humanly be undertaken
at the same time by the same authorities with any fair hope of success in any of them. To quote from Malcolm and
Laurel, "Martial law and the privilege of that writ (of habeas corpus are wholly incompatible with each other."
(Malcolm and Laurel, Philippine Constitutional Law, p. 210). It simply is not too much for the state to expect the
people to tolerate or suffer inconveniences and deprivations in the national interest, principally the security and
integrity of the country.
Mere suspension of the Privilege may be ordered, as discussed earlier, when the situation has not reached very
critical proportions imperilling the very existence of the nation, as long as public safety demands it. It is, therefore,
absurd to contend, that when martial law, which is precisely the ultimate remedy against the gravest emergencies of
internal or external aggression, is proclaimed, there is no suspension of the Privilege unless this is separately and
distinctly ordered. Considering that both powers spring from the same basic causes, it stands to reason that the
graver sanction includes the lesser. It is claimed that President Laurel treated the two matters separately in his
aforequoted proclamation. We do not believe that the precedent cited controls. It only proves that to avoid any
doubt, what President Laurel did may be adopted. There can be no denying the point that without suspension of the
Privilege, martial law would certainly be ineffective. Since martial law involves the totality of government authority, it
may be assumed that by ordering the arrest and detention of petitioners and the other persons mentioned in the
Proclamation, until ordered released by him, the President has by the tenor of such order virtually suspended the
Privilege. Relatedly, as pointed out by the Solicitor General no less than petitioner Diokno himself postulated in a
lecture at the U.P. Law Center that:
There are only, as far as I know, two instances where persons may be detained without warrant but
with due process. The first is in cases of martial law or when the writ of habeas corpus is suspended.
In those cases, it is not that their detention is legal, it is that we cannot inquire into the legality of their
detention. Because martial law means actually the suspension of law and the substitution of the will
of our Congress. The second instance is that which is provided for in Rule 113, section 6 of the
Rules of Court and Section 37 of the Revised Charter of the City of Manila. Essentially it consists of
cases where the crime is committed right in the presence of the person Who is making the arrest or
detention. (Trial Problems in City & Municipal Courts, 1970, p. 267, U. P. Law center Judicial
Conference Series.) .
In his well documented and very carefully prepared and comprehensive thesis on Martial Law, Nature, Principles
and Administration, published by Central Lawbook Publishing Co., Inc, in 1972, Justice Guillermo S. Santos of the
Court of Appeals and formerly of the Judge Advocate Generals Service, Armed Forces of the Philippines, makes
these pointed observations:
Whether the existence of martial law and the suspension of the privilege of the writ of habeas
corpusare one and the same thing, or the former includes the latter and much more, had been the
subject of an angry war of pamphlets between Professors Parsons and Parker of the Harvard Law
School at the outbreak of the Civil War. (Fairman, p. 43; Wiener p. 9.) It has also been a difficult
question to decide in some jurisdictions whether the suspension of the privilege of the writ amounted
to a declaration of martial law. (Winthrop, pp. 820 & 828, citing Ex parte Field, 9 Am. L.R. 507;
Bouviers Law Dictionary, 3rd Francis Rawis Ed., 1914, p. 2105, citing 1 Halleck Int. Law 549.
In the face of the constitutional provisions (Art. 111, Sec. 1, Clause (14) and fn 9, supra.) in our
jurisdiction, there seems to be no room for doubt that the two are different. While the grounds for the
suspension of the privilege of the writ and the proclamation of martial law are the same, there can be
no question that suspension of the writ means what it says, that during the suspension of the
privilege, the writ, if issued, will be to no avail; but martial law has more than just this effect. The only
question which apparently remains to be determined here, is, whether the declaration of martial law
ipso facto carries with it the suspension of the privilege of the writ, or whether a declaration of martial
law must necessarily include a declaration suspending the privilege of the writ in order to consider
the same inoperative. But it appears that the former is the better view, (Malcolm and Laurel,
Philippine Constitutional Law, p. 310) although in the United States it has been held that qualified
martial rule may exist where the writ has, in legal contemplation, not been suspended, (Fairman, p.
44) and that the status of martial law does not of itself suspend the writ. (Military Law [Domestic
Disturbances], Basic Field Manual, War Department, [US] fn 19 & 15, p. 17 [1945].) (See pp. 41-42.)
Of course, We are not bound by the rule in other jurisdictions.
Former Dean Vicente G. Sinco of the College of Law of the University of the Philippines, of which he became later
on President, a noted authority on constitutional law from whom many of us have learned the subject, likewise
sustains the view that the proclamation of martial law automatically suspends the privilege of the writ of habeas
corpus. (V. Sinco, Phil. Political Law, p. 259, 11th Ed., 1962)
Now, as to the constitutional propriety of detaining persons on suspicion of conspiracy with the enemy without the
need of the regular judicial process, We have also the authoritative support of no less than what a distinguished
member of this Court, considered as one of the best informed in American constitutional law, Mr. Justice Enrique
Fernando, and the principal counsel of petitioners, former Senator Taada, himself an authority, on the subject, had
to say on the point in their joint authorship, used as textbook in many law schools, entitled Constitution of the
Philippines, to wit:
Once martial law has been declared, arrest may be necessary not so much for punishment but by
way of precaution to stop disorder. As long as such arrests are made in good faith and in the honest
belief they are needed to maintain order, the President, as Commander-in-Chief, cannot thereafter,
when he is out of office, be subjected to an action on the ground that he had no reasonable ground
for his belief. When it comes to a decision by the head of a state upon a matter involving its life, the
ordinary rights of individuals must yield to what he deems the necessities of the moment. Public
danger warrants the substitution of executive for judicial process. (Emphasis supplied.) (Constitution
of the Philippines by Taada & Fernando, Vol. 2, pp. 523-525.)
The authority cited by Justice Fernando and Senator Taada says:
The plaintiffs position, stated in a few words, is that the action of the governor, sanctioned to the
extent that it was by the decision of the supreme court, was the action of the state and therefore
within the 14th Amendment; but that, if that action was unconstitutional, the governor got no
protection from personal liability for his unconstitutional interference with the plaintiffs rights. It is
admitted, as it must be. that the governors declaration that a state of insurrection existed is
conclusive of that fact. It seems to be admitted also that the arrest alone would riot necessarily have
given a right to bring this suit. Luther v. Borden, 7 How. 1, 45, 46, 12 L. ed. 581, 600, 601. But it is
said that a detention for so many days, alleged to be without probable cause, at a time when the
courts were open, without an attempt to bring the plaintiff before them, makes a case on which he
has a right to have a jury pass.
We shall not consider all of the questions that the facts suggest, but shall confine ourselves to
stating what we regard as a sufficient answer to the complaint, without implying that there are not
others equally good. Of course, the plaintiffs position is that he has been deprived of his liberty
without due process of law. But it is familiar that what is due process of law depends on
circumstances. It varies with the subject-matter and the necessities of the situation. Thus, summary
proceedings suffice for taxes, and executive decisions for exclusion from the county. Den ex
dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; United States v. Ju Toy,
198 U.S. 253, 263, 49 L. ed. 10-40, 1044, 25 Sup. Ct. Rep. 644. What, then, are the circumstances
of this case? By agreement the record of the proceedings upon habeas corpus was made part of the
complaint, but that did not make the averments of the petition for the writ averments of the
complaint. The facts that we are to assume are that a state of insurrection existed and that the
governor, without sufficient reason but in good faith, in the course of putting the insurrection down,
held the plaintiff until he thought that he safely could release him.
It would seem to be admitted by the plaintiff that he was president of the Western Federation of
Miners, and that, whoever was to blame, trouble was apprehended with the members of that
organization. We mention these facts not as material, but simply to put in more definite form the
nature of the occasion on which the governor felt called upon to act. In such a situation we must
assume that he had a right, under the state Constitution and laws, to call out troops, as was held by
the supreme court of the state. The Constitution is supplemented by an act providing that when an
invasion of or insurrection in the state is made or threatened, the governor shall order the national
guard to repel or suppress the same. Laws of 1897, chap. 63, art. 7, & 2, p. 204. That means that he
shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of
course, that he may use the milder measure of seizing the bodies of those whom he considers to
stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way
of precaution, to prevent the exercise of hostile power. So long as such arrests are made in good
faith and in the honest belief that they are needed in order to head the insurrection off, the governor
is the final judge and cannot be subjected to an action after he is out of office, on the ground that he
had not reasonable ground for his belief. If we suppose a governor with a very long term of office, it
may be that a case could be imagined in which the length of the imprisonment would raise a different
question. But there is nothing in the duration of the plaintiffs detention or in the allegations of the
complaint that would warrant Submitting the judgment of the governor to revision by a It is not
alleged that his judgment was not honest, if that be material, or that the plaintiff was detained after
fears of the insurrection were at an end.
No doubt there are cases where the expert on the spot may he called upon to justify his conduct
later in court, notwithstanding the fact that he had sole command at the time and acted to the best of
his knowledge. That is the position of the captain of a ship. But, even in that case, great weight is
given to his determination, and the matter is to be judged on the facts as they appeared then, and
not merely in the light of the event. Lawrence v. Minturn, 17 How. 100, 110, 15 L. ed. 58, 62; The
Star of Hope, 9 Wall. 203, 19 L. ed. 638; The Germanic (Oceanic Steam Nav. Co. v. Aitken) 196
U.S. 589, 594, 595, 49 L. ed. 610, 613, 25 Sup. Ct. Rep. 317. When it comes to a decision by the
head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what
he deems the necessities of the moment. Public danger warrants the substitution of executive
process for judicial process. See Keely v. Sanders, 99 U.S. 441, 446, 25 L. ed. 327, 328. (Moyer vs.
Peabody, 212 U.S. 416, 417.)
Relatedly, in the decision of the Supreme Court of Colorado dealing with the same detention of Charles H. Moyer by
order of the state governor, it was held:
By the reply it is alleged that, notwithstanding the proclamation and determination of the Governor
that a state of insurrection existed in the county of San Miguel, that as a matter of fact these
conditions did not exist at the time of such proclamation or the arrest of the petitioner, or at any other
time. By S 5, art. 4, of our Constitution, the governor is the commander in chief of the military forces
of the state, except when they are called into actual service of the United States; and he is thereby
empowered to call out the militia to suppress insurrection. It must therefore become his duty to
determine as a fact when conditions exist in a given locality which demand that, in the discharge of
his duties as chief executive of the state, he shall employ the militia to suppress. This being true, the
recitals in the proclamation to the effect that a state of insurrection existed in the country of San
Miguel cannot be controverted. Otherwise, the legality of the orders of the executive would not
depend upon his judgment, but the judgment of another coordinate branch of the state government
............
............................
............................
.... If, then, the military may resort to the extreme of taking human life in order to suppress
insurrection it is impossible to imagine upon what hypothesis it can be successfully claimed that the
milder means of seizing the person of those participating in the insurrection or aiding and abetting it
may not be resorted to. The power and authority of the militia in such circumstances are not unlike
that of the police of a city, or the sheriff of a county, aided by his deputies or posse comitatus in
suppressing a riot. Certainly such officials would be justified in arresting the rioters and placing them
in jail without warrant, and detaining the there until the riot was suppressed. Hallett J., in Re
Application of Sherman Parker (no opinion for publication). If, as contended by counsel for petitioner,
the military, as soon as the rioter or insurrectionist is arrested, must turn him over to the civil
authorities of the country, the arrest might, and in many instances would, amount to a mere farce.
He could be released on bail, and left free to again join the rioters or engage in aiding and abetting
their action, and, if again arrested, the same process would have to be repeated, and thus the action
of the military would be rendered a nullity. Again, if it be conceded that, on the arrest of a rioter by
the military, he must at once be turned over to the custody of the civil officers of the county, then the
military, in seizing armed insurrectionists and depriving them of their arms, would be required to
forthwith return them to the hands of those who were employing them in acts of violence; or be
subject to an action of replevin for their recovery whereby immediate possession of such arms would
be obtained be the rioters, who would thus again be equipped to continue their lawless conduct. To
deny the right of the militia to those whom they arrest while engaged in suppressing acts of violence
and until order is restored would lead to the most absurd results. The arrest and detention of an
insurrectionist, either actually engaged in acts of violence or in aiding and abetting others to commit
such acts, violates none of his constitutional rights. He is not tried by any military court, or denied the
right of trial by jury; neither is he punished for violation of the law, nor held without due process of
law. His arrest and detention is such circumstances merely to prevent him from taking part or aiding
in a continuation of the conditions which the governor, in the discharge of his official duties and in
the exercise of authority conferred by law, is endeavoring to suppress. When this end is reached, he
could no longer be restrained of his liberty by the military, but must be, just as respondents have
indicated in their return to the writ, turned over to the usual civil authorities of the county, to be dealt
with in the ordinary course of justice, and tried for stich offenses against the law as he may have
committed. It is true that petitioner is not held by virtue of any warrant, but if his arrest and detention
are authorized by law he cannot complain because those steps have not been taken which are
ordinarily required before a citizen can be arrested and detained.
..........................
.... The same power which determines the existence of an insurrection must also decide when the
insurrection has been suppressed. (Emphasis added.) (Re Moyer, 35 Colo, 159, 85 Pac. 190
[1904].)
It is evident, therefore, that regardless of whether or not the privilege of the writ of habeas corpus is expressly
suspended during martial law, arrest, detention and other restraints of liberty of individuals may not be assailed as
violative of the due process clause. The Presidential orders to such effect constitute substantive and procedural due
process at the same time and may therefore be invoked as valid defenses against any remedy or prayer for release.
Given the validity of the declaration of martial law, the sole tests of legality of constraints otherwise frowned upon in
normal times by the fundamental law are substantial relevance and reasonableness. In the very nature of things,
and absent any obvious showing of palpable bad faith, the Executive should enjoy respectful deference in the
determination of his grounds. As a rule, the Courts are not supposed to make any inquiry into the matter.
We accordingly hold that, as well demonstrated by the Solicitor General, a proclamation of martial law automatically
results in the suspension of the privilege of the writ of habeas corpus and, therefore, the arrest, detention and
restraints upon petitioners are authorized by the Constitution. In any event, the Presidential order of arrest and
detention constitute due process and is, therefore, a valid defense to any allegation of illegality of the constraints
upon petitioners. We further hold that the duration of such constraints may be co-extensive with martial law unless
otherwise ordered by the Executive.
IV
THE EFFECT OF THE APPROVAL AND RATIFICATION
OF THE NEW CONSTITUTION ON THE INSTANT
PETITIONS
All that remains now for resolution is the question of what effect did the approval and ratification of the New
Constitution have upon the instant petitions?
When petitioners came to this Court in September and October 1972 to impugn the legality of their arrest and
detention by virtue of Proclamation 1081 and General Order No. 2, their common fundamental theory was that said
proclamation and order were violative of the Constitution of the Philippines of 1935, not only because, according to
them, there was no justification for its placing the country under martial law but also because, even assuming its
propriety, there was allegedly no legal basis for the apprehension and detention of petitioners without any warrant of
arrest and without even any charges being filed against them. Thus, in his return of the writ ofhabeas corpus issued
by the Court, as well as in his oral argument at the hearings, the Solicitor General limited himself to barely invoking
the provision of the said Constitution empowering the President to proclaim martial law, even as he denied the
allegation that there was no factual basis therefor, and simply contended that the arrest and detention of petitioners
were made pursuant to orders validly issued under the powers of the President flowing from the proclamation. .
A
As already noted, however, even before these cases could be submitted for decision, on November 30, 1972, the
Constitutional Convention of 1971 approved a draft constitution designed to supersede the Constitution of 1935 and
on January 17, 1973, thru Proclamation 1102, the President declared that draft constitution to have been ratified by
the people in the referendum of January 10-15, 1973, and, as also stated earlier, said proclamation became the
subject of two series of cases in this Court which ultimately ended with the decision of March 31, 1973 adjudging
that "there is no further judicial obstacle to the New Constitution being considered in force and effect." And among
the salient and pertinent provisions of the New Constitution or the Constitution of 1973, as the new charter may
distinctively be referred to, is that of Section 3 (2) of Article XVII textually reproduced earlier above.
In view of the comprehensive or all-inclusive tenor of the constitutional injunction contained in said provision,
referring as it does to "all proclamations, orders, decrees, instructions, and acts promulgated issued, or done by the
incumbent President", there can be no doubt that Proclamation 1081 and General Order 2, herein assailed by
petitioners, are among those enjoined to he "part of the law of the land." The question that arises then is, did their
having been made part of the law of the land by no less than an express mandate of the fundamental law preclude
further controversy as to their validity and efficacy?
In pondering over this question, it is important to bear in mind the circumstances that attended the framing and final
approval of the draft constitution by the Convention. As already noted, two actuations of the President of indubitable
transcendental import overtook the deliberations of the constituent assembly, namely, the issuance by him of
Proclamation 1081 placing the Philippines under martial law and his exercise, under said proclamation, of non-
executive powers, inclusive of general legislative authority. As to be expected in a country, like the Philippines, long
accustomed to strict constitutionalism, and the superiority of civilian authority over, the military, soon enough, these
two actuations spawned constitutional controversies of serious dimensions, so much so that several cases involving
them, including the instant ones, are now pending in the Supreme Court. Surely, the members of the Convention
were well aware of these developments. In other words, the delegates in convention assembled were living
witnesses of the manner in which, for the first time in our constitutional history, the martial law clause of the charter
was being actually implemented, and they knew the grave constitutional issues such implementation had provoked.
Indeed, no constituent assembly Could have been better circumstanced to formulate the fundamental law of the
land. The Convention had a full and first-hand view of the controversial operation of the most important part of the
charter it was called to improve upon its martial law clause. Verily, no other aspect of the constitution could have
commanded more the most serious attention of the delegates. They knew or ought to have known that the placing of
the country or any part thereof under martial law could possibly affect the continued operation therein of the
constitution or at least, the enforceability of particular provisions thereof. Therefore, if the Convention felt that what
was being done by the President as witnessed by them was not within the contemplation of the existing fundamental
law or that it was inconsistent with the underlying principles of democracy and constitutionalism to which the nation
has been irrevocably committed since its birth and which were to remain as the foundations of the new charter, the
delegates would have considered it to be their bounden duty to our people and to the future generations of Filipinos,
to manifest their conviction by providing appropriate safeguards against any repetition thereof in the constitution
they were drafting. And so, when it is considered that as finally approved, the New Constitution reproduces in
exactly the same terms or verbatim the martial law clause of the 1935 charter, the ineludible conclusion is that our
new constitutional fathers did not see anything repugnant to the concepts of the old constitution in what the
President has done or was doing. As We see it, this attitude of the Convention constitutes an authoritative
contemporary construction of the provision in controversy, and considering that the Presidents manner of
implementing martial law has been sanctioned by the people not only in the referendum of January 10-15, 1973 but
also in that of July 27-28, 1973, reliance on such attitude in determining the meaning and intent of said provision
cannot be out of place.
In the light of these considerations, We do not see in the transitory provision under discussion any idea of ratification
or validation of something void or unauthorized. Rather, what We perceive in it are revelations of what lay in the
core of the martial law clause of the 1935 Constitution as it was conceived and formulated by its wise and farsighted
framers. It would be unreasonable, illogical and unworthy of the 1971 delegates to impute to them an intent to
merely ratify, confirm or validate the Presidents acts, on the assumption that they were originally unauthorized by
the charter, for that would imply that they were concerned only about straightening out the present situation, when it
is just as important to insure that future acts of the President are not tainted with illegality. We cannot entertain any
thought that the delegates were not sufficiently apprised on the implications of their acts. Indeed, the New
Constitution has not imparted ex propio vigore any element of validity to the acts in question, it has only expressed
in black and white what the Old Constitution did not deem necessary to lay down with precision in respect to them.
Viewed this way, what the transitory provision under discussion means is that both the acts of the President before
as well as those after ratification of the New Constitution are valid not validated and, as just stated, what
reinforces this construction and places the said acts beyond possible attacks for unconstitutionality are the results of
the two referendums of January and July, 1973.
Withal, having absolute faith in the high sense of duty and the patriotic courage of the members of the Convention,
We also reject the suggestion that they were in any way impeded, under the circumstances then obtaining, from
freely expressing themselves. We cannot for a moment entertain the thought that any other Filipino can ever have
less courage and love of country and concern for the future of our people than the members of this Court who are
presently called upon to make momentous decisions affecting no less than the legality and legitimacy of the very
Government admittedly in effective control of the whole territory of the nation, regardless of possible personal
consequences to themselves.
The fact of the matter is that Proclamation 1081 did not make mention of the Convention at all. On the contrary,
judicial notice may be taken of the increased funds appropriated by the President so as to enable it to proceed with
its deliberations, unbothered by any apprehension regarding the inadequacy of the funds which the Congress had
appropriated for it, and which were then fast dwindling, without any certainty of further congressional appropriations.
Indeed, when Delegate Kalaw of the First District of Rizal proposed in a formal resolution that the sessions be
suspended until after the lifting of martial law, the assembly voted overwhelmingly to turn down the proposal. There
is no evidence at all that any form of undue pressure was brought to bear upon the delegates in any respect related
to their constituent functions. It has not been shown that the arrest and detention of a number of delegates, some of
whom are petitioners herein, was in any way connected with or caused by their actuations related to their
constituent functions. What General Order No. 2 asserts is that the President ordered the "Secretary of National
Defense to forthwith arrest or cause the arrest and take into custody the individuals named in the attached list
(among them, the said delegates) and to hold them until otherwise so ordered by me or my duly designated
representative" for their "being active participants or for having given aid and comfort in the conspiracy to seize
political and state power in the country and to take over the Government by force, the extent of which has now
assumed the proportion of an actual war against Our people and our legitimate Government and in order to prevent
them from further committing acts that are inimical or injurious to our people, the Government and our national
interest, and to hold said individuals until otherwise so ordered by me or by my duly designated representative."
Even then, said delegates were allowed to cast their votes in the assembly when the final draft was submitted for
approval of the members of the Convention. Thus, it can be safely asserted that the freedom of the Convention to
act and to perform whatever was incumbent upon it as a constituent body suffered no substantial diminution or
constraint on account of the proclamation of martial law.
To reiterate then, Section 3 (2), Article XVII of the New Constitution enjoins that "all proclamations, orders, decrees,
instructions and acts promulgated, issued or done by the incumbent President shall be part of the law of the land
and shall remain valid, legal, binding and effective even after the lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions or
other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National
Assembly." Notably, the provision does not only make all such proclamations, orders, decrees, etc. "part of the law
of the land", in which case, it would have been perhaps possible to argue, that they had just been accorded the
status of legislative enactments, ordinarily subject to possible attack on constitutional grounds. The provision
actually goes further. It expressly ordains that the proclamations, orders, etc. referred to should "remain valid, legal,
binding, and effective" ... until revoked, modified, repealed or superseded in the manners therein stipulated. What is
more, the provision refers to and contemplates not only proclamations, orders, decrees, instructions and acts of
executive character, but even those essentially legislative, as may be gathered from the nature of the proclamations,
decrees, orders, etc. already existing at the time of the approval of the draft constitution and of the acceptance
thereof by the people. Accordingly, and because there is no doubt that Proclamation 1081 and General Order No. 2,
herein challenged, are among the proclamations and orders contemplated in said provision, the Court has no
alternative but to hold, as it hereby holds, in consonance with the authoritative construction by the Constitutional
Convention of the fundamental law of the land, that Proclamation 1081 of President Marcos placing the Philippines
under martial law as well as General Order No. 2, pursuant to which petitioners are either in custody or restrained of
their freedoms "until otherwise so ordered by (the President) or (his) duly designated representative" are valid, legal,
binding and effective, and consequently, the continued detention of petitioner Aquino as well as the constraints on
the freedoms of the other petitioners resulting from the conditions under which they were released from custody are
legal and constitutional. We feel We are confirmed in this conclusion by the results of the referendum of July 27-28,
1.473 in which 18,052,016 voter gave their affirmative approval to the following question:
Under the present constitution the President, if he so desires, can continue in office beyond 1973.
Do you want President Marcos to continue beyond 1973 and finish the reforms he has initiated
under Martial law?
We hasten to add to avoid misunderstanding or confusion of concepts, that it is not because of the fiat or force of
the New Constitution itself that the transitory provision is being relied upon for the purposes of the instant petitions.
At this point, and without prejudice to looking into the matter insofar as other issues and other cases affecting
martial law and the orders issued under it are concerned, all that We say is that the said provision constitutes an
authoritative contemporary construction of the martial law clause of the Constitution giving light regarding the
emergency powers that the Executive may exercise after its proclamation.
B
But petitioner Diokno
17
would dilute the force of this conclusion by trying to find fault with the dispositive portion of the
decision of this Court in the Ratification Cases. He contends that actually, six justices rendered opinions expressly holding
that the New Constitution has not been validly ratified in accordance with Article XV of the 1935 Constitution and that the
said dispositive portion "is not consistent with their findings, which were also the findings of the majority of the Court."
Otherwise stated, the position of petitioner Diokno is that the decision in the Ratification Cases has no binding legal force
as regards the question of whether or not the New Constitution is indeed in force and effect. This is practically an attempt
to make the Court resolve the same points which counsels for the petitioners in the Ratification Cases submitted to the
Court on the last day for the finality of the decision therein, but without asking for either the reconsideration or modification
thereof, because they merely wanted to record for posterity their own construction of the judgment of the Court.
18
Without in any way attempting to reopen the issues already resolved by the Court in that decision, but for the sake
of erasing any doubt as to the true import of Our judgment therein, and in order that those who would peruse the
same may not be led astray by counsels misconstruction thereof, the writer feels it is here opportune to say a few
words relative to petitioners observations, considering specially that Our discussion above is predicated on the
premise that the New Constitution is in full force and effect.
To start with, it is evident that the phrase in question saying that "there is no further judicial obstacle to the New
Constitution being considered in force and effect" was in actual fact approved specifically by the members of the
Court as the juridical result of their variant separate opinions. In fact, even those who dissented, except Justice
Zaldivar, accepted by their silence the accuracy of said conclusion.
19
Had any of the other justices, particularly, Chief
Justice Makalintal and Justice Castro felt that their joint opinion did not justify such a judgment, they would have certainly
objected to its tenor, as Justice Zaldivar did. (See footnote 11). Surely, it is not for anyone to say now that the Court
misstated its judgment.
In the particular case of Counsels Taada and Arroyo, while it is true that on the last day for the finality of that
decision, they filed a "Constancia", separately from the Manifestation to the same effect of the other counsel,
discussing extensively the alleged inconsistency between the collective result of the opinions of the majority of the
Court and the dispositive portion of the judgment, like the other counsel, however, they did not make any prayer for
relief, stating that their only purpose is "to save our people from being misled and confused, in order to place things
in their proper perspective, and in order to keep faith with the 1935 Constitution. ... so that when history passes
judgment upon the real worth and meaning of the historic Resolution of this Honorable Court promulgated on March
31, 1973, it may have all the facts before it," for which reason, the majority of the Court, over the dissent of Justices
Zaldivar, Antonio, Esguerra and the writer, did not consider it necessary to act, believing it was not exactly the
occasion to disabuse the minds of counsels about the juridical integrity of the Courts actuation embodied in the
resolution. In a sense, therefore, said counsels should be deemed to be in estoppel to raise the same points now as
arguments for any affirmative relief, something which they did not ask for when it was more appropriate to do so.
In the second place, laying aside the division of views among the members of the Court on the question of whether
or not there has been compliance with the provisions of Article XV of the 1935 Constitution, the vital and decisive
fact is that the majority of the Court held that the question of whether or not the New Constitution is already in force
and effect is a political question and the Court must perforce defer to the judgment of the political departments of the
government or of the people in that respect. In is true some of the Justices could not find sufficient basis for
determining whether or not the people have accepted the New Constitution, but, on that point, four Justices,
Justices Makasiar, Antonio, Esguerra and the writer, did vote categorically in the affirmative, while two Justices, then
Chief Justice Concepcion and Justice Zaldivar, voted in the negative. And in the joint opinion of now Chief Justice
Makalintal and Justice Castro, it is crystal clear that the reference therein to their inability to accurately appraise the
peoples verdict was merely casual, the thrust of their position being that what is decisive is the Presidents own
attitude regarding the situation, that is, whether he would take the report of the Katipunan ng mga Barangay to the
effect that the people have approved and ratified the New Constitution as definitive and final or he would prefer to
submit the new charter to the same kind of election which used to be held for the ratification of constitutional
amendments, his decision either way not being subject to judicial inquiry. Stated differently, our distinguished
colleagues were of the view that whether or not the New Constitution may be held to have been duly ratified
pursuant to Article XV of the 1935 Constitution and even their own negative conclusion in such respect, have no
bearing on the issue of the enforceability of the New Constitution on the basis of its having been accepted by the
people, and that although they were not possessed of sufficient knowledge to determine this particular fact, the
Presidents own finding thereon is conclusive upon the Court, since, according to them such a decision is political
and outside the pale of judicial review. To quote their own words:
However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, as
certified by the President in Proclamation No. 1102, was not in accordance with the constitutional
and statutory procedure laid down for the purpose does not quite resolve the questions raised in
these cases. Such a finding, in our opinion, is on a matter which is essentially justiciable, that is,
within the power of this Court to inquire into. It imports nothing more than a simple reading and
application of the pertinent provisions of the 1935 Constitution, of the Election Code and of other
related laws and official acts. No question of wisdom or of policy is involved. But from this finding it
does not necessarily follow that this Court may justifiably declare that the Constitution has not
become effective, and for that reason give due course to these petition or grant the writs herein
prayed for. The effectivity of the Constitution in the final analysis, is the basic and ultimate question
which considerations other than the competence of this Court, are relevant and unavoidable.
xxx xxx xxx
If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such
ratification as well as the establishment of the government thereunder formed part of a revolution,
albeit peaceful, then the issue of whether or not that Constitution has become effective and, as a
necessary corollary whether or not the government legitimately functions under it instead of under
the 1935 Constitution, is political and therefore non-judicial in nature. Under such a postulate what
the people did in the Citizens Assemblies should be taken as an exercise of the ultimate sovereign
powers. If they had risen up in arms and by force deposed the then existing government and set up
a new government in its place, there could not be the least doubt that their act would be political and
not subject to judicial review but only to the judgment of the same body politic act, in the context just
set forth, is based on realities. If a new government gains authority and dominance through force, it
can be effectively challenged only by a stronger force; no Judicial review is concerned, if no force
had been resorted to and the people. in defiance of the existing Constitution but peacefully because
of the absence of any appreciable opposition, ordained a new Constitution and succeeded in having
the government operate under it. Against such a reality there can be no adequate judicial relief; and
so courts forbear to take cognizance of the question but leave it to be decided through political
means.
xxx xxx xxx
But then the President, pursuant to such recommendation. did proclaim that the Constitution had
been ratified and had come into effect. The more relevant consideration, therefore, as far as we can
see, should be as to what the President had in mind in convening the Citizens Assemblies,
submitting the Constitution to them and proclaiming that the favorable expression of their views was
an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication,
are necessarily involved.
In positing the problem within an identifiable frame of reference we find no need to consider whether
or not the regime established by President Marcos since he declared martial law and under which
the new Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotal
question is rather whether or not the effectivity of the said Constitution by virtue of Presidential
Proclamation No. 1102, upon the recommendation of the Katipunan ng mga Barangay, was intended
to be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and
statutory provisions prescribing the procedure for ratification. We must confess that after considering
all the available evidence and all the relevant circumstances we have found no reasonably reliable
answer to the question.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the
President. We have earlier made reference to subjective factors on which this Court, to our mind, is
in no position to pass judgment. Among them is the Presidents own assessment of the will of the
people as expressed through the Citizens Assemblies and of the importance of the 1973
Constitution to the successful implementation of the social and economic reforms he has started or
envisioned. If he should decide that there is no turning back, that what the people recommended
through the Citizens Assemblies, as they were reported to him, demanded that the action he took
pursuant thereto be final and irrevocable, then judicial review is out of the question.
In articulating our view that the procedure of ratification that was followed was not in accordance with
the 1935 Constitution and related statutes, we have discharged our sworn duty as we conceive it to
be. The President should now perhaps decide, if he has not already decided, whether adherence to
such procedure is weighty enough a consideration, if only to dispel any cloud of doubt that may now
and in the future shroud the nations Charter.
In the deliberation of this Court one of the issues formulated for resolution is whether or not the new
Constitution, since its submission to the Citizens Assemblies, has found acceptance among the
people, such issue being related to the political question theory propounded by the respondents. We
have not tarried on the point at all since we find no reliable basis on which to form a judgment. Under
a regime of martial law, with the free expression of opinions through the usual media vehicles
restricted, we have no means of known, to the point of judicial certainty, whether the people have
accepted the Constitution. In any event, we do not find the issue decisive insofar as our vote in these
cases is concerned. To interpret the Constitution that is judicial. That Constitution should be
deemed in effect because of popular acquiescence that is political, and therefore beyond the
domain of judicial review. (JAVELLANA -vs- THE EXECUTIVE SECRETARY 50 SCRA 161-162;
164; 166-167; 170-171)
20
It only remains for the writer to reiterate here a few considerations already touched in the separate opinions in the
Ratification Cases which in his considered view may well be taken into account by those who would read again the
judgment of the Court therein. .
1
Having come to the conclusion that the question of whether or not the New Constitution is legally in force and effect
is political and outside the domain of judicial review, it was not strange that the Court should simply rule that there
should be no further judicial obstacle to the enforcement of the charter, should that be, as it appeared to be, the
intent of those actually in authority in the government. It is implicit in the political question doctrine that the Courts
opinion as to the correctness of the legal postures involved is of no moment, for the simple reason that the remedy
against any error therein lies either with the sovereign people at the polls or with the Political department concerned
in the discharge of its own responsibility under the fundamental law of the land, and not with the Court. Even if it
were otherwise desirable, if only for the benefit of those interested in the settlement of the specific legal problem
posed, any categorical ruling thereon would transcend the bounds of judicial propriety. For the Court to hold it is
without power to decide and in the same breath to actually decide is an intolerable incongruity, hence any
pronouncement or holding made under the circumstances could have no more force than an obiter dictum, no
matter how rich in erudition and precedential support. Consequently, to say that the New Constitution may be
considered by those in authority to be in force and effect because such is the mandate expressed by the people in
the form announced by the Presidents but a proper manner of expressing the Courts abstention from wresting the
power to decide from those in whom such prerogative is constitutionally lodged. This is neither to dodge a
constitutional duty nor to refrain from getting involved in a controversy of transcendental implications it is plain
adherence to a principle considered paramount in republican democracies wherein the political question doctrine is
deeply imbedded as an inextricable part of the rule of law. It is an unpardonable misconception of the doctrine for
anyone to believe that for the Supreme Court to bow to the perceptible or audible voice of the sovereign people in
appropriate instances is in any sense a departure from or a disregard of law as applied to political situations, for the
very rule that enjoins judicial interference in political questions is no less a legal principle than any other that can be
conceived, Indeed, just as, in law, judicial decision rendered within ambit of the courts authority deserve the respect
of the people, by the same token, the peoples verdict on what inherently is theirs to decide must be accorded due
deference by the judiciary. Otherwise, judges would be more powerful than the people by whom they have been
given no more prerogative than to act solely within the boundaries of the judicial sphere. Withal, a court may err in
finding that a given situation calls for its abstention, in the same way it may commit mistakes of judgment about any
order matter it decides, still its decision, conceding its honesty, cannot be faulted as an assault on the rule of law.
Thus, in a broad sense, it may be said that it is a necessary corollary of the truth that the administration of justice in
courts presided be human beings cannot perfect that even the honest mistake of a judge is law.
The writer further submits that, as pointed out in his separate opinion in the Ratification Cases, those who
vehemently insist that the referendum of January 10-15, 1973 was not the kind of election contemplated in Article
XV of the 1935 Constitution seem to overlook that the said provision refers only to the mode of ratifying
amendments thereto and makes no mention at all a new constitution designed to supersede it is to be submitted for
approval by the people. Indeed, the writer would readily agree, as was already made clear in the aforementioned
opinion, that if what were submitted to the people in the January, 1973 referendum had been merely an amendment
or a bundle of amendments to the 1935 Constitution, the results thereof could not constitute a valid ratification
thereof. But since it was a whole integral charter that the Citizens Assemblies had before them in that referendum, it
is evident that the ratification clause invoked cannot be controlling.
That a new constitution is not contemplated is indicated in the text of the provision it itself. It says: "Such
amendments shall be valid as part of this Constitution when approved by a majority of the votes cast ...." How can it
be ever conceived that the 1973 Constitution which is an entire charter in itself, differing substantially in its entirely
and radically in most of its provisions, from the 1935 Constitution be part of the latter? In other words, the mode
ratification prescribed in Article XV is only for amendments that can be made part of the whole constitution,
obviously not to an entire charter precisely purported to supersede it.
And it is but logical that a constitution cannot and should not attempt to bind future generations as to how they would
do away with it in favor of one suitable to their more recent needs and aspirations. It is true that in Tolentino vs.
Comelec, 41 SCRA 702, this Court, thru the writer, held that:
In our discussion of the issue of jurisdiction, We have already made it clear that the Convention
came into being by a call of a joint session of Congress pursuant to Section 1 of Article XV of the
Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to
its internal operation and the performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all subject to all the provisions of the
existing Constitution. Now, We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV. This must be so, because it is
plain to Us that the framers of the Constitution took care that the process of amending the same
should not be undertaken with the same ease and facility in changing an ordinary legislation.
Constitution making is the most valued power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution affects the lives, fortunes,
future and every other conceivable aspect of the lives of all the people within the country and those
subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution
worthy of the people for which it is intended must not be prepared in haste without adequate
deliberation and study. It is obvious that correspondingly, any amendment of the Constitution itself,
and perforce must be conceived and prepared with as much care and deliberation. From the very
nature of things, the drafters of an original constitution, as already observed earlier, operate without
any limitations, restraints or inhibitions save those that they may impose upon themselves. This is
not necessarily true of subsequent conventions called to amend the original constitution. Generally,
the framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or
changed, not only for reasons purely personal but more importantly, because written constitutions
are supposed to be designed so as to last for some time, if not for ages, or for, at least, so long as
they can be adopted to the needs and exigencies of the people, hence, they must he insulated
against precipitate and hasty actions motivated by more or less passing political moods or fancies.
Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less
stringent, made so by the people themselves, in regard to the process of their amendment. And
when such limitations or conditions are so incorporated in the original constitution, it does not lie in
the delegates of any subsequent convention to claim that they may ignore and disregard such
conditions because they are as powerful and omnipotent as their original counterparts. (At page 724-
726) .
But this passage should not be understood, as it was not meant to be understood, to refer to the peoples
inalienable right to cast aside the whole constitution itself when they find it to be in their best interests to do so. It
was so indicated already in the resolution denying the motion for reconsideration:
This is not to say that the people may not, in the exercise of their inherent revolutionary powers,
amend the Constitution or promulgate an entirely new one otherwise, but as long as any amendment
is formulated and submitted under the aegis of the present Charter, any proposal for such
amendment which is not in conformity with the letter, spirit and intent of the provision of the Charter
for effecting amendments cannot receive the sanction of this Court. (Resolution of Motion for
reconsideration, Tolentino vs. Comelec G.R. No. L-34150, February 4, 1971) .
For it is rather absurd to think that in approving a new fundamental law with which they would replace the existing
one, they have to adhere to the mandates of the latter, under pain of getting stuck with it, should they fall. One can
easily visualize how the evil forces which dominated the electoral process during the old society would have gone
into play in order to stifle the urge for change, had the mode of ratification in the manner of past plebiscites been the
one observed in the submission of the New Constitution. To reiterate what the writer said in the Ratification Cases:
Consider that in the present case what is involved is not just an amendment of a particular provision
of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitution
that is being proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the
petitioner in the case I have just referred to is, now inviting Our attention to the exact language of
Article XV and suggesting that the said Article may be strictly applied to proposed amendments but
may hardly govern the ratification of a new Constitution. It is particularly stressed that the Article
specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be
valid as part of this Constitution." Indeed, how can a whole new Constitution be by any manner of
reasoning an amendment to any other constitution and how can it, if ratified, form part of such other
constitution? ...
It is not strange at all to think that the amending clause of a constitution should be confined in its
application only to proposed changes in any part of the same constitution itself, for the very fact that
a new constitution is being adopted implies a general intent to put aside the whole of the old one,
and what would be really incongruous is the idea that in such an eventuality, the new Constitution
would subject its going into effect any provision of the constitution it is to supersede, to use the
language precisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. My
understanding is that generally, constitutions are self-born, they very rarely, if at all, come into being,
by virtue of any provision of another constitution. This must be the reason why every constitution has
its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the
referendum and provided for such a method to be used in the ratification of the New Constitution, I
would have had serious doubts as to whether Article XV could have had priority of application."
(Javellana -vs- The Executive Secretary-50 SCRA 197-198).
Since in the withdrawal motion of petitioner Diokno, the whole trust of his posture relative to the alleged non-
enforceability of the Constitution of 1973 revolves around supposed non-compliance in its ratification, with Article XV
of the 1935 Charter, and inasmuch as it is evident that the letter and intent of that invoked provision do not warrant,
as has just been explained, the application thereof to the New Constitution, for the simple reason that the same is
not in fact and in law as well as in form and in intent a mere amendment to the Old Constitution, but an integrally
new charter which cannot conceivably be made just a part thereof, one cannot but view said motion to withdraw as
having been designed for no other purpose than to serve as a vehicle for the ventilation of petitioners political rather
than legal outlook which deserves scant consideration in the determination of the merits of the cases at bar.
In any event, that a constitution need not be ratified in the manner prescribed by its predecessor and that the
possible invalidity of the mode of its ratification does not affect its enforceability, as long as the fact of its approval by
the people or their acquiescence thereto is reasonably shown, is amply demonstrated in the scholarly dissertation
made by our learned colleague, Mr. Justice Felix V. Makasiar, in his separate opinion in the Ratification Cases,
which carried the concurrence of Justices Antonio, Esguerra and the writer. And that what took place in the
Philippines in January, 1973 is not an unprecedented practice peculiar to our country, is likewise plainly shown
therein, since it appears that no less than the Constitution of the United States of America, the nation whose close
adherence to constitutionalism petitioners would want the Filipinos to emulate, was also ratified in a way not in
conformity with the Articles of Confederation and Perpetual Union, the Constitution which it replaced, and the reason
for it was only because those in authority felt that it was impossible to secure ratification, if the amendment clause of
the Articles were to be observed, and so they resorted to extra-constitutional means to accomplish their purpose of
having a new constitution. Following is the pertinent portion of Mr. Justice Makasiars illuminating disquisition based
on actual historical facts rather than on theoretical and philosophical hypotheses on which petitioners would seem to
rely:
The classic example of an illegal submission that did not impair the validity of the ratification or
adoption of a new Constitution is the case of the Federal Constitution of the United States. It should
be recalled that the thirteen (13) original states of the American Union which succeeded in
liberating themselves from England after the revolution which began on April 19, 1775 with the
skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at
Yorktown, Virginia, on October 19,1781 (Encyclopedia Brit., Vol. 1, 1933 Ed., p. 776) adopted
their Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratified
on March 1, 1781 (Encyclopedia Brit., Vol. 11, 1966 Ed., p. 525). About six years thereafter, the
Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal
Constitutional Convention "for the sole and express purpose of revisaing the articles of
confederation.... (Appendix 1, The Federalist, Modern Library ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of
Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed by every state, and the
union shall be perpetual; nor shall any alteration at any time hereafter be made in
any of them; unless such alteration be agreed to in a congress of the united states,
and be afterwards confirmed by the legislatures of every state. (See the Federalist,
Appendix 11, Modern Library Ed., 1937, p. 584; emphasis supplied).
But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for
the alteration and for the ratification of the Federal Constitution as drafted by the Philadelphia
Convention were not followed. Fearful that the said Federal Constitution would not be ratified by the
state legislatures as prescribed, the Philadelphia Convention adopted a resolution requesting the
Congress of the Confederation to pass a resolution providing that the Federal Constitution should be
submitted to elected state conventions and if ratified by the conventions in nine (9) states, not
necessarily in all thirteen (13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University recorded that:
It would have a counsel of perfection to consign the new Constitution to the tender mercies of the
legislatures of each and all of the 13 states. Experience clearly indicated that ratification would have
had the same chance as the scriptural camel passing thru the eye of a needle. It was therefore
determined to recommend to Congress that the new Constitution be submitted to conventions in the
several states specially elected to pass and when it should be ratified by nine of the thirteen
states.... (The Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix
emphasis supplied).
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians would be
Anti federalist, provided for ratification of the Constitution by popularly elected
conventions in each state. Suspecting that Rhode Island, at least, would prove
recalcitrant, it declared that the Constitution would go into effect as soon as nine
states ratified. The convention method had the further advantage that judges,
ministers, and others ineligible to state legislatures could be elected to a convention.
The nine-state provision was, of course, mildly revolutionary. But the Congress of the
Confederation, still sitting in New York to carry on federal government until relieved,
formally submitted the new constitution to the states and politely faded out before the
first presidential inauguration. (The Oxford History of the Am. People by Samuel Eliot
Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last
four states on May 29, 1790 (12 C. J. p. 679 footnote, 16 C.J.S. 27 by the state conventions and
not by all thirteen (13) state legislatures as required by Article XIII of the Articles of Confederation
and Perpetual Union aforequoted and in spite of the fact that the Federal Constitution as originally
adopted suffers from two basic infirmities, namely the absence of a bill of rights and of a provision
affirming the power of judicial review.
The liberties of the American people were guaranteed by the subsequent amendments to the
Federal Constitution. The doctrine of judicial review has become part of American constitutional law
only by virtue of a judicial pronouncement by Chief Justice Marshall in the case of Marbury vs.
Madison(1803, 1 Branch 137).
Until this date, no challenge has been launched against the validity of the ratification of the American
Constitution, nor against the legitimacy of the government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326- 330), which enunciated the
principle that the validity of a new or revised Constitution does not depend on the method of its
submission or ratification by the people, but on the fact of fiat or approval or adoption or
acquiescence by the people, which fact of ratification or adoption or acquiescence is all that is
essential, the Court cited precisely the case of the irregular revision and ratification by state
conventions of the Federal Constitution, thus:
No case identical in its facts with the case now under consideration has been called
to our attention, and we have found none, We think that the principle which we apply
in the instant case was very clearly applied in the creation of the constitution of the
United States. The convention created by a resolution of Congress had authority to
do one thing, and one only, to wit, amend the articles of confederation. This they did
not do, but submitted to the sovereign power, the people, a new constitution. In this
manner was the constitution of the United States submitted to the people and it
became operative as the organic law of this nation when it had been properly
adopted by the people.
Pomeroys Constitutional Law, p. 55, discussing the convention that formulated the
constitution of the United States, has this to say "The convention proceeded to do,
and did accomplish, what they were not authorized to do by a resolution of Congress
that called them together. That resolution plainly contemplated amendments to the
articles of confederation, to be submitted to and passed by the Congress, and
afterwards ratified by all the state legislatures, in the manner pointed out by the
existing organic law. But the convention soon became convinced that any
amendments were powerless to effect a cure; that the disease was too deeply
seated to be reached by such tentative means. They saw the system they were
called to improve must be totally abandoned, and that the national idea must be re-
established at the center of their political society. It was objected by some members,
that they had no power, no authority, to construct a new government. They had no
authority, if their decisions were to he final; and no authority whatever, under the
articles of confederation, to adopt the course they did. But they knew that their labors
were only to be suggestions; and that they as well as any private individuals, and any
private individuals as well as they, had a right to propose a plan of government to the
people for their adoption. They were, in fact, a mere assemblage of private citizens,
and their work had no more binding sanction, than a constitution drafted by Mr.
Hamilton in his office, would have had. The people, by their expressed will,
transformed this suggestion, this proposal, into an organic law, and the people might
have done the same with a constitution submitted to them by a single citizen.
xxx xxx xxx
... When the people adopt a completely revised constitution, the framing or submission of the
instrument is not what gives its binding force and effect. The fiat of the people, and only the fiat of
the people, can breathe life into a Constitution.
... We do not hesitate to say that a court is never justified in placing by implication a limitation upon
the sovereign. This would be an authorized exercise of sovereign power by the court. (In State v.
Swift 69 Ind. 505, 519, the Indiana Supreme Court said: The people of a State may form an original
constitution, or abrogate an old one and form a new one, at and time, without and political restriction
except the constitution of the United States; .... (37 SE 327-328, 329, emphasis supplied.)
In the 1903 case of Weston vs. Ryan, the court held:
It remains to be said that if we felt at liberty to pass upon this question, and were
compeller to hold that the act of February 23, 1887, is unconstitutional and void, it
would not, in our opinion, by any means follow that the amendment is not a part of
our state Constitution. In the recent case of Taylor vs. Commonwealth (Va.) 44 S.E.
754, the Supreme Court of Virginia hold that their state Constitution of 1902, having
been acknowledged and accepted by the officers administering the state
government, and by the people, and being in force without t opposition must be
regarded as an existing Constitution, irrespective of the question as to whether or not
the convention which promulgated it had authority so to do without submitting it to a
vote of the people. InBrittle v. People, 2 Neb. 198, is a similar holding as to certain
provisions of the Nebraska Constitution of 1886, which were added by the
Legislature at the requirement of Congress, though never submitted to the people for
their approval. (97 NW 349-350; emphasis supplied).
Against the decision in the Wheeler case, supra., confirming the validity of the ratification and
adoption of the American Constitution, in spite of the fact that such ratification was a clear violation
of the prescription on alteration and ratification of the Articles of Confederation and Perpetual Union,
petitioners in G. R. No. L-36165 dismissed this most significant historical fact by calling the Federal
Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16,
Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the
requirement that the Articles of Confederation and Perpetual Union can be amended only with the
consent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merely
refers to the footnotes on the brief historical account of the United States Constitution on p. 679 of
Vol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford History
of the American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of
Confederation and Perpetual Union in Chapter XVIII captioned Revolutionary Constitution Making,
1775 1781 (pp. 270-281). In Chapter XX on The Creative Period in Politics, 1785-1788, Professor
Morison delineates the genersis of the Federal Constitution, but does not refer to it even implicitly as
a revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered
revolutionary from the viewpoint of McIver if the term revolution is understood in its WIDER sense to
embrace decisive changes in the character of government, even though they do not involve the
violent overthrow of an established order, ... (R.M. MacIver, The Web of Government, 1965 ed., p.
203).
It is rather ridiculous to refer to the American Constitution as a revolutionary constitution, The
Artycles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged
as it was during the war of independence was revolutionary constitution of the thirteen (13) states. In
the existing Federal Constitution of the United States which was adopted seven (7) or nine (9) years
after the thirteen (13) states won their independence and long after popular support for the
government of the Confederation had stabilized was not a product of a revolution. The Federal
Constitution was a creation of the brain and purpose of man in an era of peace. It can only be
considered revolutionary in the sense that it is a radical departure from its predecessor, the Articles
of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the United States is not the
successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so
obvious that no further refutation is needed. (50 SCRA 209-215) .
Moreover, whether a proposal submitted to the people is just an amendment to an existing constitution within the
contemplation of its amendment clause or is a new charter not comprehended by its language may not be
determined solely by the simple processes of analysis of and comparison between the contents of one and the
other. Very much depends on what the constituent assembly, reflecting its understanding of the desire of the people
it represents, actually intends its handiwork to be, as such intent may be deduced from the face of the document
itself. For the truth is that whatever changes in form and in substance a constitution may undergo, as long as the
same political, social and economic ideologies as before continue to be the motivation behind such changes, the
result can never be, in a strict sense, a new constitution at all. Indeed, in such circumstance, any alteration or
modification of any provision of a constitution, no matter how extensive, can always he traced as founded on its own
bedrock, thereby proving identity. It is therefore the expressed desire of the makers of the charter that is decisive.
And that is why the New Constitution has its own effectivity clause which makes no reference howsoever to Article
XV of the past charter.
21
Now, how the founding fathers of America must have regarded the difference between a constitutional amendment,
on the one hand, and a new constitution, on the other, when they found the Articles of Confederation and Perpetual
Union no longer adequate for the full development of their nation, as can be deduced from the historical account
above, is at least one case in point they exercised their right to ratify their new fundamental law in the most
feasible manner, without regard to any constitutional constraints. And yet, it is the constitution that is reputed to have
stood all tests and was, in fact, the model of many national constitutions, including our own of 1935, if it cannot be
accurately regarded also as the model of the present one.
With the foregoing considerations in mind, it can be readily seen how pointless it is to contend, as petitioner Diokno
does in his motion to withdraw, that what he deems as the failure of the January, 1973 referendum to conform with
the requirements of Article XV of the 1935 Constitution detracts from the enforceability of the New Constitution, in
the light of the Presidents assertion contained in Proclamation 1102 that it has been approved and ratified by the
people, coupled with his evident firm and irreversible resolution to consider it to have been, indeed, duly ratified, and
in the face of the indisputable fact that the whole government effectively in control of the entire Philippine territory
has been operating under it without any visible resistance on the part of any significant sector of the populace. To
allude to the filing of the petitions in the Plebiscite and the Ratification Cases and the occasional appearances in
some public places of some underground propaganda which, anyway, has not cut any perceptible impression
anywhere, as indicative or evidence of opposition by the people to the New Constitution would be, to use a
commonplace but apt expression, to mistake the trees for the forest.
It is thus abundantly clear that the passionate and tenacious raciocination in petitioner Dioknos withdrawal motion
tending to assail the cogency of our opinions and their consistency with the judgment in the Ratification Cases, to
the extent of using terms that could signify doubt in the good faith and intellectual integrity of some members of the
Court and of trying to embarrass the Court itself before the bar of history, does not in fact have any plausible basis
whatsoever.
C O N C L U S I O N
The instant cases are unique. To Our knowledge never before has any national tribunal of the highest authority
been called upon to pass on the validity of a martial law order of the Executive issued in the face of actual or
imminent danger of a rebellion threatening the very existence of the nation. The petitions herein treat of no more
than the deprivation of liberty of the petitioners, but in reality what is involved here is the legitimacy of the
government itself. No Supreme Court of any other country in the world, We reiterate, has ever been confronted with
such a transcendental issue.
This is, therefore, a decision that affects not the petitioners alone, but the whole country and all our people. For this
reason, We have endeavored to the best of our ability to look at all the issues from every conceivable point of view.
We have gone over all the jurisprudence cited by the parties, the writings of learned and knowledgeable authorities
they have quoted and whatever We could avail of by Ourselves. We trust We have not misunderstood any of the
contentions of the parties and their able and learned counsels and that We have not overlooked any authority
relevant to them. And We must say We perceive no cause to downgrade their love of and loyalty to our common
motherland even if differences there are between our convictions as to how to earlier attain the national destiny.
Indeed, We have not considered as really persuasive any insinuations of motivations born of political partisanship
and personal ambitions.
We do not mean to belittle or depreciate foreign jurisprudence, but We have deliberately refrained from relying on
alien opinions, judicial or otherwise, in order to stress that the Filipinos can solve their own problems with their own
resources intellectual or otherwise. Anyway, We doubt if there is enough relevant parallelism between occurrences
in other countries passed upon by the courts with what is happening here today.
Principally, by this decision, We hold that the power to proclaim martial law is lodged by the Constitution exclusively
in the Executive, but the grant of judicial power to the Supreme Court also by the Constitution is plenary and total
and, therefore, when it is a matter of judicial notice, because it is commonly known by the general public or is
capable of unquestionable demonstration, that any particular declaration of martial law is devoid of any of the
constitutionally required bases, the Court has the full authority and it would not hesitate to strike down any such
improvident proclamation and to adjudge that the legitimate government continue without the offending Executive,
who shall be replaced in accordance with the rules of succession provided in the existing Constitution and laws. In
the cases at bar, however, the Court, with the abstention of only one member who has preferred not to emit any
opinion on the issue at this time, holds that the President had good and sufficient grounds in issuing Proclamation
1081, whether the same is examined in the light of its own recitals, as some Justices advocate, or of facts of judicial
notice together with those undisputed in the record, in the manner the rest of Us have actually tested it. We further
hold that in restraining the liberties of petitioners, the President has not overstepped the boundaries fixed by the
Constitution.
For doctrinal purposes, it is best to add to all the foregoing that a judicial challenge against the imposition of martial
law by the Executive in the midst of the actualities of a real assault against the territorial integrity and life of the
nation, inevitably calls for the reconciliation, which We feel We have been able to effectuate here, of two extremes in
the allocation of powers under the Constitution the resort by the Executive to the ultimate weapon with which the
fundamental law allows him to defend the state against factual invasion or rebellion threatening the public safety, on
the one hand, and the assertion by the Supreme Court of the irreducible plenitude of its judicial authority, on the
other. No other conflict of prerogatives of such total dimensions can conceivably arise from the operation of any
other two parts of the charter. This decision then could well be sui generis, hence, whatever has been said here
would not necessarily govern questions related to adverse claims of authority related to the lower levels of the
hierarchy of powers in the Constitution.
We humbly submit this decision to the judgment of all our people, to history and to the generations of Filipinos still
unborn, confident that it carries all that We know and all that We are. As We do this, We are fully aware that in this
critical stage of our life as a nation, our overriding need is unity. It is Our fervent hope that by this decision, We have
duly performed Our constitutionally assigned part in the great effort to reduce if not to eliminate the remaining
fundamental causes of internecine strife.
May Divine Providence continue to always keep the Philippines in the right paths of democracy, freedom and justice
for all!
J U D G M E N T
WHEREFORE, the petitions in all the above-entitled cases are dismissed. No costs.
A D D E N D U M
The following are my reasons for voting in favor of granting the motion to withdraw:
It is elementary that the remedy of habeas corpus exists only against involuntary confinement. The moment,
therefore, that after initially questioning the legality of his detention, the petitioner seeks withdrawal of his petition at
any stage of the case before judgment, his detention becomes in law automatically, by his own act, voluntary or with
his express consent, hence, the reason for further inquiry into the circumstances thereof ceases completely, and the
courts duty to proceed further and render judgment comes to an end. By allowing the withdrawal, no interest of
justice would be prejudiced, no juridical harm needing redress could be caused to anyone. Accordingly, the
petitioners motive for his withdrawal, whether expressed or unarticulated, are absolutely immaterial, albeit, in the
case at bar, petitioner himself suggests that, while acceding to his request, the members of the Court may express
their views thereon. (Sur-Rejoinder dated May 21, 1974, p. 3).
In the mind of the writer, the grounds alleged by petitioner Diokno and his counsel have an apparent tendency to
offend the dignity of the Court and to undermine the respect and faith of the people in its capacity to administer
justice. What is worse, they may be false and baseless, as they are emotional and personal. Unless properly
explained, they give the impression that movant is impeaching the integrity and good faith of some members of the
Court. In the premises, said petitioner and counsel could be required to show cause why they should not be held in
contempt of the Court, but there being no formal charge to such effect in the instant proceedings, and in order not to
confuse the discussion and resolution of the transcendental issues herein, it is preferable, and the Court has opted,
to take up the matter of the possible responsibility for contempt separately, either motu propio or upon the initiative
of whoever may allege to be aggrieved thereby. For the present, it has to be stated, however, that under no
circumstances may any party or counsel vent his personal feelings and emotions in any pleading or paper Bled with
the Court, particularly while his case is pending therein. Personalities that are directed towards the occupants of the
judicial office naturally mar the legal issues before them, correspondingly making more difficult their proper and
impartial resolution. Even if the judges concerned are actually, as they are supposed to be, unmoved by them, still
there can be no assurance that the litigants and the public in general will be convinced of their absolute impartiality
in their subsequent actuations, and to that extent, the interests of justice are bound to suffer. It is but in keeping with
the highest traditions of the judiciary that such improprieties are not allowed to pass unnoticed and are dealt with by
the court either moto propio or upon corresponding complaint, whether in an independent proceeding or as an
incident within the pending case. No court worthy of its position should tolerate them.
But assaults upon the dignity and integrity of the court, are one thing, and the issues of the case at hand are
another. Regardless of what the judge thinks is the belief of those concerned about the motivations of the courts
subsequent resolution of the issues, unless he inhibits himself from further acting in the case, circumstances
permitting, it is his inescapable duty to render judgment, taking care, of course, that he remains, in fact, objective
and impartial. It is, therefore, of no moment, for the purposes of disposing of petitioner Dioknos motion to withdraw,
whether or not the charges leveled by him and his counsel against the Court or any of its members are founded or
unfounded and whether or not the same constitute actionable misconduct on their part, as participants in the case
before Us and/or as members of the Bar and officers of the Court. Any possible action for such probable misconduct
has no bearing on the question of whether or not, observing the usual rules and practices, the Court should dismiss
his main petition, the alleged illegality of his detention having been duly cured by his voluntary submission thereto.
All these is not to say that I have not given thought to the imperative necessity of resolving the issues of public
interest raised in petitioner Dioknos petition. I can also see that it is important to the Government that he does not
escape the legal effects of the decision in these cases. But if these are the main reasons for denying his motion to
withdraw, I believe that the Governments apprehensions are rather unfounded. While I would not say that by his
withdrawal, petitioner impliedly admits the correctness of the stand of the Government, what with the avalanche of
protests against alleged injustice and supposed legal errors running through his pleadings, I am of the considered
view that in law, he cannot correctly pretend that the rulings of the Court in the other cases herein in respect to the
issues therein that are common with those of his petition are not binding on him at least by precedential force. And
inasmuch as in the cases not withdrawn, all the issues of public interest raised in his case will have to be resolved, I
do not see any purpose in insisting that he should remain a petitioner when he refuses, as a matter of conscience,
to await the unfavorable verdict he foresees in his own case, which he himself anticipates will not set him free
anyway. Of course, he protests that nothing he can say can convince the Court, and, on the other hand, perhaps,
the most technically accurate and palpably just decision the court may fashion will not convince him, but it has to be
a strange court that will yield to a litigants point of view just because he sincerely feels he is right, whereas it is not
unusual for a litigant to pretend not to see the correctness and justice of the courts judgment unfavorable to his
interests.
ANTONIO, J .:
These applications for writs of habeas corpus present for review Proclamation No. 1081 of the President of the
Philippines, placing the country under martial law on September 21, 1972, and the legality of the arrest and
detention of prisoners under the aforesaid proclamation. The issues posed have confronted every democratic
government in every clime and in every age. They have always recurred in times of crisis when the nations safety
and continued existence are in peril. Involved is the problem of harmonizing two basic interests that lie at the
foundation of every democratic constitutional system. The first is contained in Rosseaus formulation, the peoples
first intention is that the State shall not perish," in other words, the right of the State to its existence. The second are
the civil liberties guaranteed by the Constitution, which "imply the existence of an organized system maintaining
public order without which liberty itself would be lost in the excesses of unrestrained abuses. ..." (Cox vs. New
Hampshire, 312 U.S. 569 [1940]).
The petitions for habeas corpus initially raise the legality of the arrest and detention of petitioners. As the
respondents, however, plead, in defense, the declaration of martial law and the consequent suspension of the
privilege of habeas corpus, the validity of Proclamation No. 1081 is the ultimate constitutional issue.
Hearings were held on September 26 and 29 and October 6, 1972.
1
Meanwhile, some of the petitioners were allowed to withdraw their petitions.
2
Most of the petitioners were
subsequently released from custody under certain conditions and some of them insist that their cases have not become
moot as their freedom of movement is restricted.
3
As of this date, only petitioner Benigno Aquino, Jr. (L-35546) remains in
military custody.
On August 11, 1973, petitioner Benigno Aquino, Jr. was charged before the military commission with the crimes of
subversion under the Anti-Subversion Act (Republic Act No. 1700), murder and illegal possession of firearms. On
August 23, 1973, he filed an action for certiorari and prohibition (L-35546) with this Court, assailing the validity of his
trial before the military commission, because the creation of military tribunals for the trial of offenses committed by
civilians is unconstitutional in the absence of a state of war or status of belligerency; being martial law measures,
they have ceased with the cessation of the emergency; and he could not expect a fair trial because the President of
the Philippines had prejudged his case. That action is pending consideration and decision.
On December 28, 1973, petitioner Diokno moved to withdraw his petition (L-35539), claiming that there was delay in
the disposition of his case, and that as a consequence of the decision of this Court in Javellana v. Executive
Secretary (L36142, March 31, 1973) and of the action of the members of this Court in taking an oath to support the
New Constitution, he has reason to believe that he cannot "reasonably expect to get justice in this case."
Respondents oppose this motion on the ground that public interest or questions of public importance are involved
and the reasons given are factually untrue and contemptuous. On September 11, 1974, petitioner Diokno was
released from military custody. In view of his release, it was the consensus of the majority of the Court to consider
his case as moot. We shall now proceed to discuss the issues posed by the remaining cases.
1. Is the determination by the President of the Philippines of the necessity for the exercise of his power to declare
martial law political, hence, final and conclusive upon the courts, or is it justiciable and, therefore, his determination
is subject to review by the courts?
2. Assuming Lansang to be applicable, can it be said that the President acted arbitrarily in issuing Proclamation No.
1081?
3. Assuming that the issues are justiciable, can the Supreme Court upon the facts of record and those judicially
known to It now declare that the necessity for martial law has already ceased?
4. Under a regime of martial law, can the Court inquire into the legal justification for the arrest and detention as well
as the other constraints upon the individual liberties of the petitioners? In the affirmative, does It have any adequate
legal basis to declare that their detention is no longer authorized by the Constitution.
I
CONSTITUTION INTENDED STRONG EXECUTIVE
The right of a government to maintain its existence is the most pervasive aspect of sovereignty. To protect the
nations continued existence, from external as well as internal threats, the government "is invested with all those
inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to
every government as such, and as being essential to the exercise of its functions" (Mr. Justice Bradley, concurring
in Legal Tender Cases [US] 12 Wall. 457, 554, 556, 20 L. ed. 287, 314, 315). To attain this end, nearly all other
considerations are to be subordinated. The constitutional power to act upon this basic principle has been recognized
by all courts in every nation at different periods and diverse circumstances.
These powers which are to be exercised for the nations protection and security have been lodged by the
Constitution under Article VII, Section 10 (2) thereof, on the President of the Philippines, who is clothed with
exclusive authority to determine the occasion on which the powers shall be called forth.
The constitutional provision expressly vesting in the President the power to place "the Philippines or any part thereof
under martial law in case of invasion, insurrection or rebellion or imminent danger thereof when the public safety
requires it,"
4
is taken bodily from the Jones Law with the difference that the President of the United States had the power
to modify or vacate the action taken by the Governor-General.
5
Although the Civil Governor, under Section 5 of the
Philippine Bill of 1902, could, with the approval of the Philippine Commission, suspend the privilege of the writ of habeas
corpus no power to proclaim martial law was specifically granted. This power is not mentioned in the Federal Constitution
of the United States. It simply designates the President as commander-in-chief:
The President shall be Commander-in-Chief of the Army and Navy of the United States and of the
militia of the several states when called into actual service of the United States ...
6
Its absence in the Federal Constitution notwithstanding, President Abraham Lincoln during the Civil War placed
some parts of the country under martial law. He predicated the exercise of this power on his authority as
Commander-in-Chief of the Armed Forces and on the ground of extreme necessity for the preservation of the Union.
When not expressly provided in the Constitution, its justification, therefore, would be necessity. Thus some
authoritative writers view it as "not a part of the Constitution but is rather a power to preserve the Constitution when
constitutional methods prove inadequate to that end. It is the law of necessity."
7
Since the meaning of the term
"martial law" is obscure, as is the power exercisable by the Chief Executive under martial law, resort must be had to
precedents. Thus the powers of the Chief Executive under the Commander-in-Chief clause of the Federal Constitution
have been drawn not only from general and specific provisions of the Constitution but from historical precedents of
Presidential action in times of crises. Lincoln invoked his authority under the Commander-in-Chief clause of the Federal
Constitution for the series of extraordinary measures which he took during the Civil War, such as the calling of volunteers
for military service, the augmentation of the Army and Navy, the payment of $2 million from the un appropriated funds in
the Treasury to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence," the
blockade of Southern ports, the suspension of the writ of habeas corpus, the arrests and detentions of persons "who were
represented to him as being engaged in or contemplating "treasonable practices" all this for the most part was done
without the least statutory authorization from Congress. The actions of Lincoln "assert for the President," according to
Corwin, "an initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war
emergency."
8
The creation of public offices is conferred by the Federal Constitution to Congress. During World War 1,
however, President Wilson, on the basis of his power under the "Commander-in-Chief" clause of the Federal Constitution,
created "public offices," which were copied in lavish scale by President Roosevelt in World War II. "The principal canons
of constitutional interpretation are in wartime set aside," according to Corwin, "so far as concerns both the scope of
national power and the capacity of the President to gather unto himself all the constitutionally available powers in order
the more effectively to focus them upon the task of the hour."
9
The presidential power, "building on accumulated
precedents has taken on at times, under the stimulation of emergency conditions," according to two eminent
commentators, the "dimensions of executive prerogative as described by John Locke, of a power to wit, to fill needed
gaps in the law, or even to supersede it so far as may be requisite to realize the fundamental law of nature and
government, namely, that as much as may be all the members of society are to be preserved."
10
There is no question that the framers of the 1935 Constitution were aware of these precedents and of the scope of
the power that had been exercised by the Presidents of the United States in times of grave crisis. The framers of the
Constitution "were not only idealists but also practical-minded men." "While they abjured wars of aggression they
well knew that for the country to survive provisions for its defense had to be made."
11
II
TEXTUALLY DEMONSTRABLE CONSTITUTIONAL
COMMITMENT OF ISSUE TO THE PRESIDENT
Instead of making the President of the Philippines simply the commander-in-chief of all the armed forces, with
authority whenever it becomes necessary to call out such armed forces to prevent or suppress lawless violence,
invasion, insurrection, or rebellion, the framers of the 1935 Constitution expressly conferred upon him the exclusive
power and authority to suspend the privileges of the writ of habeas corpus or place the Philippines, or any part
thereof, under martial law.
The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence,
invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger
thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas
corpusor place the Philippines or any part thereof under martial law.
12
The condition which would warrant the exercise of the power was not confined to actual invasion, insurrection or
rebellion, but also to imminent danger thereof, when the public safety requires it. It is evident, therefore, that while
American Presidents derived these extraordinary powers by implication from the States right to self-preservation,
the President of the Philippines was expressly granted by the Constitution with all the powers necessary to protect
the nation in times of grave peril.
The safety and well-being of the nation required that the President should not be hampered by lack of authority but
was to be a "strong executive who could maintain the unity of the nation with sufficient powers and prerogatives to
save the country during great crises and dangers."
13
As Delegate Jose P. Laurel comprehensively explained:
... A strong executive he is intended to be, because a strong executive we shall need, especially in
the early years of our independent, or semi-independent existence. A weak executive is
synonymous with a weak government. He shall not be a monarch or a dictator in time of profound
and Octavian peace, but he virtually so becomes in an extraordinary emergency; and whatever may
be his position, he bulwarks normally, the fortifications of a strong constitutional government, but
abnormally, in extreme cases, he is suddenly ushered is as a Minerva, full-grown and in full panoply
of war, to occupy the vantage ground as the ready protector and defender of the life and honor of his
nation. (Emphasis Supplied.)
14
The concentration of an amplitude of power in the hands of the Commander-in-Chief of the Armed Forces of the
Philippines, who is at the same time the elected civilian Chief of State, is predicated upon the fact that it is he who
must initially shoulder the burden and deal with the emergency. By the nature of his position he possesses and
wields the extraordinary powers of self-preservation of the democratic, constitutional state. In times of crisis there is
indeed unification of responsibility and centralization of authority in the Chief Executive. "The concentration of
governmental power in a democracy faced by an emergency," wrote Rossiter, "is a corrective to the crisis
inefficiencies inherent in the doctrine of the separation of powers. ... In normal times the separation of powers forms
a distinct obstruction to arbitrary governmental action. By this same token in abnormal times it may form an
insurmountable barrier to decisive emergency action in behalf of the State and its independent existence. There are
moments in the life of any government when all the powers must work together in unanimity of purpose and action,
even if this means the temporary union of executive, legislative and judicial powers in the hands of one man. The
more complete the separation of powers in a constitutional system, the more difficult and yet the more necessary
will be their fusion in time of crisis." (Rossiter, Constitutional Dictatorship, 288-289.)
It was intended, however, that the exercise of these extraordinary powers is for the preservation of the State, its
democratic institutions, and the permanent freedom of its citizens.
III
RESPONSIBILITY IMPLIES BROAD
AUTHORITY AND DISCRETION
The conditions of war, of insurrection or rebellion, or of any other national emergency are as varied as the means
required for meeting them and it is, therefore, within the contemplation of the Constitution that t he Chief Executive,
to preserve the safety of the nation on those times of national peril, should have the broadest authority compatible
with the emergency in selecting the means and adopting the measures which in his honest judgment are necessary
for the preservation of the nations safety. "The circumstances that endanger the safety of nations are infinite," wrote
Alexander Hamilton, "and for this reason no constitutional shackles can wisely be imposed on the power to which
the care of it is committed ... This is one of those truths which to a correct and unprejudiced mind carries its own
evidence along with it, and may be obscured, but cannot be made plainer by argument or reasoning ... The means
ought to be in proportion to the end; the persons from whose agency the attainment of any end is expected ought to
possess the means by] which it is to be attained."
15
Mr. Madison expressed the same idea in the following terms: "It is
vain to impose constitutional barriers to the impulse of self-preservation. It is worse than in vain, because it plants in the
Constitution itself necessary usurpations of power."
16
"Unquestionably," wrote Chief Justice Taney in Luther v. Borden (7 How. 44, [18491, 12 L.ed. 600), "a State may
use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The power
is essential to the existence of every government, essential to the preservation of order and free institutions, and is
as necessary to the States of this Union as to any other government. The State itself must determine what degree of
force the crisis demands. And if the Government of Rhode Island deemed the armed opposition so formidable, and
so ramified throughout the State, as to require the use of its military force and the declaration of martial law, we see
no ground upon which this Court can question its authority."
In the Prize cases (17 L. ed. 476, [1863]), the Court ascribed to the President of the United States, by virtue of his
powers as Chief Executive and as Commander-in-Chief, the power which in Luther v. Borden is attributed to the
government as a whole, to treat of insurrection as a state of war, and the scene of the insurrection as a seat or
theater of war. As Justice Grier in the Prize cases significantly stated: "Whether the President in fulfilling his duties
as Commander-in-Chief, in suppressing an insurrection, has met with such hostile resistance, and a civil war of such
alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided
by him, and this court must be governed by the decisions and acts of the Political Department of the government to
which this power was entrusted. He must determine what degree of force the crisis demands. (Emphasis supplied.)
In Hirabayashi v. United States
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 78059 August 31, 1987
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE
LA ROSA and JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON. ROMEO C.
DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO,
REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L.
TOLENTINO, respondents.
MELENCIO-HERRERA, J .:
An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing them from
their respective positions as Barangay Captain and Barangay Councilmen of Barangay Dolores, Municipality of
Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment on the Petition, and petitioners their Reply to
respondents Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay Captain and
the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M.
Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222,
otherwise known as the Barangay Election Act of 1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1, 1986 but
signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating respondent Florentino G.
Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The designation made by the OIC Governor was
"by authority of the Minister of Local Government."
Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986
designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita
L. Tolentino as members of the Barangay Council of the same Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the pertinent
portions of which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;
That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I
among others, have signed as I did sign the unnumbered memorandum ordering the replacement of
all the barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal;
That the above cited memorandum dated December 1, 1986 was signed by me personally on
February 8,1987;
That said memorandum was further deciminated (sic) to all concerned the following day, February 9.
1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and void and that
respondents be prohibited from taking over their positions of Barangay Captain and Barangay Councilmen,
respectively. Petitioners maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222),
their terms of office "shall be six (6) years which shall commence on June 7, 1982 and shall continue until their
successors shall have elected and shall have qualified," or up to June 7, 1988. It is also their position that with the
ratification of the 1987 Constitution, respondent OIC Governor no longer has the authority to replace them and to
designate their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated on March
25, 1986, which provided:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if such appointment is made within
a period of one year from February 25,1986.
By reason of the foregoing provision, respondents contend that the terms of office of elective and appointive officials
were abolished and that petitioners continued in office by virtue of the aforequoted provision and not because their
term of six years had not yet expired; and that the provision in the Barangay Election Act fixing the term of office of
Barangay officials to six (6) years must be deemed to have been repealed for being inconsistent with the
aforequoted provision of the Provisional Constitution.
Examining the said provision, there should be no question that petitioners, as elective officials under the 1973
Constitution, may continue in office but should vacate their positions upon the occurrence of any of the events
mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no proclamation or executive order
terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not the designation of
respondents to replace petitioners was validly made during the one-year period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be considered
as the effective date of replacement and not December 1,1986 to which it was ante dated, in keeping with the
dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the
Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the 1987
Constitution reading.
SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional
Constitution must be deemed to have been superseded. Having become inoperative, respondent OIC Governor
could no longer rely on Section 2, Article III, thereof to designate respondents to the elective positions occupied by
petitioners.
Petitioners must now be held to have acquired security of tenure specially considering that the Barangay Election
Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the barangays to ensure
their fullest development as self-reliant communities.
2
Similarly, the 1987 Constitution ensures the autonomy of local
governments and of political subdivisions of which the barangays form a part,
3
and limits the Presidents power to
"general supervision" over local governments.
4
Relevantly, Section 8, Article X of the same 1987 Constitution further
provides in part:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years ...
Until the term of office of barangay officials has been determined by law, therefore, the term of office of six (6) years
provided for in the Barangay Election Act of 1982
5
should still govern.
Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for elective
Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as still operative,
pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:
Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other
executive issuances not inconsistent, with this Constitution shall remain operative until amended,
repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating
respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal,
are both declared to be of no legal force and effect; and (2) the Writ of Prohibition is granted enjoining respondents
perpetually from proceeding with the ouster/take-over of petitioners positions subject of this Petition. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.
Separate Opinions
TEEHANKEE, CJ ., concurring:
The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987,
the date that the plebiscite for its ratification was held or whether it took effect on February 11, 1987, the date its
ratification was proclaimed per Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino.
The Courts decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article
XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately upon its ratification by a majority of
the votes cast in a plebiscite held for the purpose," the 1987 Constitution took effect on February 2, 1987, the date
of its ratification in the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall
have been ascertained and not at the time the people cast their votes to approve or reject it." This view was actually
proposed at the Constitutional Commission deliberations, but was withdrawn by its proponent in the face of the
"overwhelming" contrary view that the Constitution "will be effective on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully supports the Courts judgment. It
shows that the clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by
thirty-five votes in favor and none against) the aforequoted Section 27 of Transitory Article XVIII of the 1987
Constitution was that "the act of ratification is the act of voting by the people. So that is the date of the ratification"
and that "the canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during the
date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act
which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of
the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the
committee as indicated in Section 12, unless there are other commissioners who would like to
present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after
"constitutions," add the following: "AND THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose
an additional sentence, the committee would suggest that we take up first his amendment to the first
sentence as originally formulated. We are now ready to comment on that proposed amendment.
The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the
words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the
second amendment would be: After the word "constitutions," add the words" AND THEIR
AMENDMENTS,"
The committee accepts the first proposed amendment. However, we regret that we cannot accept
the second proposed amendment after the word "constitutions" because the committee feels that
when we talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I
request that I be allowed to read the second amendment so the Commission would be able to
appreciate the change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN
FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON
ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that
the second proposed amendment in the form of a new sentence would not be exactly necessary and
the committee feels that it would be too much for us to impose a time frame on the President to
make the proclamation. As we would recall, Madam President, in the approved Article on the
Executive, there is a provision which says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it says that there will be a proclamation
by the President that the Constitution has been ratified, the President will naturally comply with the
law in accordance with the provisions in the Article on the Executive which we have cited. It would
be too much to impose on the President a time frame within which she will make that declaration. It
would be assumed that the President would immediately do that after the results shall have been
canvassed by the COMELEC.
Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is
proposing, Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an
immediate proclamation of the results by the President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which
makes the effectivity of the new Constitution dependent upon the proclamation of the President. The
effectivity of the Constitution should commence on the date of the ratification, not on the date of the
proclamation of the President. What is confusing, I think, is what happened in 1976 when the
amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were
effective upon the proclamation of the President was that the draft presented to the people said that
the amendment will be effective upon the proclamation made by the President. I have a suspicion
that was put in there precisely to give the President some kind of leeway on whether to announce
the ratification or not. Therefore, we should not make this dependent on the action of the President
since this will be a manifestation of the act of the people to be done under the supervision of the
COMELECand it should be the COMELEC who should make the announcement that, in fact, the
votes show that the Constitution was ratified and there should be no need to wait for any
proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the
Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were
supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the
Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by
the Commission on Elections. If we delete the suggested amendment which says: "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear
terms, the date when the Constitution is supposed to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the
plebiscite would be held, for instance, on January 19, 1987, then the date for the effectivity of the
new Constitution would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the
Commission on Elections which will be doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done
when one casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the
proponent, Commissioner Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the
view of Commissioner Bernas, that the date of the ratification is reckoned from the date of the
casting of the ballots. That cannot be the date of reckoning because it is a plebiscite all over the
country. We do not split the moment of casting by each of the voters. Actually and technically
speaking, it would be all right if it would be upon the announcement of the results of the canvass
conducted by the COMELEC or the results of the plebiscite held all over the country. But it is
necessary that there be a body which will make the formal announcement of the results of the
plebiscite. So it is either the President or the COMELEC itself upon the completion of the canvass of
the results of the plebiscite, and I opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I
support the stand of Commissioner Bernas because it is really the date of the casting of the "yes"
votes that is the date of the ratification of the Constitution The announcement merely confirms the
ratification even if the results are released two or three days after. I think it is a fundamental principle
in political law, even in civil law, because an announcement is a mere confirmation The act of
ratification is the act of voting by the people. So that is the date of the ratification. If there should be
any need for presidential proclamation, that proclamation will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the same support for
Commissioner Bernas, because the canvass thereafter is merely the mathematical confirmation of
what was done during the date of the plebiscite and the proclamation of the President is merely the
official confirmatory declaration of an act which was actually done by the Filipino people in adopting
the Constitution when they cast their votes on the date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity
of the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what
happens to the obligations and rights that accrue upon the approval of the Constitution? So I think
we must have a definite date. I am, therefore, in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the
Commission on Elections to declare the results of the canvass?
FR. BERNAS. There would be because it is the Commission on Elections which makes the official
announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has
declared the results of the canvass, will there be a necessity for the President to make a
proclamation of the results of the canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.
MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the
Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President would be immaterial
because under the law, the administration of all election laws is under an independent Commission
on Elections. It is the Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on
Elections says, it would have no effect. I would only add that when we say that the date of effectivity
is on the day of the casting of the votes, what we mean is that the Constitution takes effect on every
single minute and every single second of that day, because the Civil Code says a day has 24
hours.So that even if the votes are cast in the morning, the Constitution is really effective from the
previous midnight.
So that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody
born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born
citizens, no matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the
results of the canvass by the COMELEC retroacts to the date of the plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely
the proposal of Commissioner Bernas which speaks of the date (of ratification that would have a
definite date, because there would be no definite date if we depend upon the canvassing by the
COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the
President, would announce that a majority of the votes cast on a given date was in favor of the
Constitution. And that is the date when the Constitution takes effect, apart from the fact that the
provision on the drafting or amendment of the Constitution provides that a constitution becomes
effective upon ratification by a majority of the votes cast, although I would not say from the very
beginning of the date of election because as of that time it is impossible to determine whether there
is a majority. At the end of the day of election or plebiscite, the determination is made as of that time-
the majority of the votes cast in a plebiscite held on such and such a date. So that is the time when
the new Constitution will be considered ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide
and I support the view of Commissioner Bernas and the others because the ratification of the
Constitution is on the date the people, by a majority vote, have cast their votes in favor of the
Constitution. Even in civil law, if there is a contract, say, between an agent and a third person and
that contract is confirmed or ratified by the principal, the validity does not begin on the date of
ratification but it retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the date that the people have
cast their affirmative votes in favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his
amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be
effective on the very day of the plebiscite, I am withdrawing my amendment on the assumption that
any of the following bodies the Office of the President or the COMELEC will make the formal
announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the
committee.
MR. MAAMBONG. The committee will read again the formulation indicated in the original committee
report as Section 12.
This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and shall supersede all previous Constitutions.
We ask for a vote, Madam President.
V O T I N G
THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their
hands.)
As many as are against, please raise their hand. (No Member raised his hand.)
The results show 35 votes in favor and none against; Section 12 is approved.
2
The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its
ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution promulgated on March
25, 1986 must be deemed to have been superseded by the 1987 Constitution on the same date February 2, 1987
and (2) by and after said date, February 2, 1987, absent any saying clause to the contrary in the Transitory Article of
the Constitution, respondent OIC Governor could no longer exercise the power to replace petitioners in their
positions as Barangay Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent
OIC Governors designation on February 8, 1987 of their successors could no longer produce any legal force and
effect. While the Provisional Constitution provided for a one-year period expiring on March 25, 1987 within which the
power of replacement could be exercised, this period was shortened by the ratification and effectivity on February 2,
1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so
provided for in the Transitory Article, as indeed they provided for multifarious transitory provisions in twenty six
sections of Article XVIII, e.g. extension of the six-year term of the incumbent President and Vice-President to noon
of June 30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers by the
incumbent President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could
be open to serious questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which
require prior endorsement thereof by the Judicial and Bar Council created under the Constitution. It should be stated
for the record that the reported date of the appointments, February 2, 1987, is incorrect. The official records of the
Court show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on February
1, 1987 and they were all appointed on or before January 31, 1987.
3
(Similarly, the records of the Department of
Justice likewise show that the appointment papers of the last batch of provincial and city fiscals signed by the President in
completion of the reorganization of the prosecution service were made on January 31, 1987 and transmitted to the
Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the
Judiciary have been extended by the President, pending the constitution of the Judicial and Bar Council, indicating that
the Chief Executive has likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly
declared by the Court.
CRUZ, J ., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones
of thunder. She has written another persuasive opinion, and I am delighted to concur. I note that it in effect affirms
my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no
longer be summarily replaced, having acquired security of tenure under the new Constitution. Our difference is that
whereas I would make that right commence on February 25, 1987, after the deadline set by the Freedom
Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that
better view and agree with her ponencia completely.
SARMIENTO, J ., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with
respect to the tenure of government functionaries, as follows:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if such appointment is made within
a period of one year from February 25, 1986.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period
began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987
constitution took effect on February 11, 1987, the date the same was proclaimed ratified pursuant to Proclamation
No. 58 of the President of the Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes
cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been
ascertained, and not at the time the people cast their votes to approve or reject it. For it cannot be logically said that
Constitution was ratified during such a plebiscite, when the will of the people as of that time, had not, and could not
have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have
been valid under the Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in
particular, the appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the
President reportedly extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative
of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a
retired Member of the Supreme Court, and a representative of the private sector.
xxx xxx xxx
Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar Council for every
vacancy, Such appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments
thereto from the date it is proclaimed ratified.
In Magtoto v. Manguera,
2
we held that the 1973 Constitution became in force and effect on January 17, 1973, the date
Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971
Constitutional Convention," was issued, although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date
further to April 17, 1973, the date our decision in Javellana v. Executive Secretary,
3
became final. And this was so
notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the
Constitution of nineteen-hundred and thirty- five and all amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the
1976 amendments submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as
duly ratified by the Filipino people in the referendum- plebiscite held Oct. 16-17, 1976 and are therefore effective
and in full force and effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall have proclaimed that they
have been ratified by a majority of the votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the
Filipino People of the Amendments of Section 7, Article X of the Constitution" (lengthening the terms of office of
judges and justices). The Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite
held, together with the election for local officials, on January 30, 1980, and that said amendment is
hereby declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect
on the date the incumbent President/Prime Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of
the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore
Effective and in Full Force and Effect." The Proclamation, in declaring the said amendments duly approved, further
declared them "[e]ffective and in full force and in effect as of the date of this Proclamation," It shall be noted, in this
connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a
Constituent Assembly, which parented these amendments, the same:
. . .shall become valid as part of the Constitution when approved by a majority of the votes cast in a
plebiscite to be held pursuant to Section 2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection,
the Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a
Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate Funds Therefore,"
provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the
plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of
Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the
Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and
113." It states that the amendments:
....are therefore effective and in full force and effect as of the date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643),
which states, that:
The proposed amendments shall take effect on the date the President of the Philippines shall
proclaim that they have been ratified by a majority of the votes cast in the plebiscite held for the
purpose, but not later than three months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a majority of the
votes cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant
to Section 2 of Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of
the plebiscite is a view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to
Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was
adopted on April 9,1947. The April 9, 1947 Resolution makes no mention of a retroactive application.
Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at
Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission
of 1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and
is therefore effective and in full force and effect.
4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga
5
in which we declared, in passing, that the new Charter was ratified on
February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve
the case on account of a categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if
we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on
February 8, 1987 were valid, the 1987 Constitution not being then as yet in force.
Separate Opinions
TEEHANKEE, CJ ., concurring:
The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987,
the date that the plebiscite for its ratification was held or whether it took effect on February 11, 1987, the date its
ratification was proclaimed per Proclamation No. 58 of the President of the Philippines, Corazon C. Aquino.
The Courts decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article
XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately upon its ratification by a majority of
the votes cast in a plebiscite held for the purpose," the 1987 Constitution took effect on February 2, 1987, the date
of its ratification in the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall
have been ascertained and not at the time the people cast their votes to approve or reject it." This view was actually
proposed at the Constitutional Commission deliberations, but was withdrawn by its proponent in the face of the
"overwhelming" contrary view that the Constitution "will be effective on the very day of the plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully supports the Courts judgment. It
shows that the clear, unequivocal and express intent of the Constitutional Conunission in unanimously approving (by
thirty-five votes in favor and none against) the aforequoted Section 27 of Transitory Article XVIII of the 1987
Constitution was that "the act of ratification is the act of voting by the people. So that is the date of the ratification"
and that "the canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during the
date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act
which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of
the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the
committee as indicated in Section 12, unless there are other commissioners who would like to
present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after
"constitutions," add the following: "AND THEIR AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose
an additional sentence, the committee would suggest that we take up first his amendment to the first
sentence as originally formulated. We are now ready to comment on that proposed amendment.
The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the
words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the
second amendment would be: After the word "constitutions," add the words" AND THEIR
AMENDMENTS,"
The committee accepts the first proposed amendment. However, we regret that we cannot accept
the second proposed amendment after the word "constitutions" because the committee feels that
when we talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I
request that I be allowed to read the second amendment so the Commission would be able to
appreciate the change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN
FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON
ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that
the second proposed amendment in the form of a new sentence would not be exactly necessary and
the committee feels that it would be too much for us to impose a time frame on the President to
make the proclamation. As we would recall, Madam President, in the approved Article on the
Executive, there is a provision which says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it says that there will be a proclamation
by the President that the Constitution has been ratified, the President will naturally comply with the
law in accordance with the provisions in the Article on the Executive which we have cited. It would
be too much to impose on the President a time frame within which she will make that declaration. It
would be assumed that the President would immediately do that after the results shall have been
canvassed by the COMELEC.
Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is
proposing, Madam President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an
immediate proclamation of the results by the President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which
makes the effectivity of the new Constitution dependent upon the proclamation of the President. The
effectivity of the Constitution should commence on the date of the ratification, not on the date of the
proclamation of the President. What is confusing, I think, is what happened in 1976 when the
amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were
effective upon the proclamation of the President was that the draft presented to the people said that
the amendment will be effective upon the proclamation made by the President. I have a suspicion
that was put in there precisely to give the President some kind of leeway on whether to announce
the ratification or not. Therefore, we should not make this dependent on the action of the President
since this will be a manifestation of the act of the people to be done under the supervision of the
COMELECand it should be the COMELEC who should make the announcement that, in fact, the
votes show that the Constitution was ratified and there should be no need to wait for any
proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the
Constitution is supposed to be ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were
supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the
Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by
the Commission on Elections. If we delete the suggested amendment which says: "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear
terms, the date when the Constitution is supposed to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the
plebiscite would be held, for instance, on January 19, 1987, then the date for the effectivity of the
new Constitution would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the
Commission on Elections which will be doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done
when one casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the
proponent, Commissioner Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the
view of Commissioner Bernas, that the date of the ratification is reckoned from the date of the
casting of the ballots. That cannot be the date of reckoning because it is a plebiscite all over the
country. We do not split the moment of casting by each of the voters. Actually and technically
speaking, it would be all right if it would be upon the announcement of the results of the canvass
conducted by the COMELEC or the results of the plebiscite held all over the country. But it is
necessary that there be a body which will make the formal announcement of the results of the
plebiscite. So it is either the President or the COMELEC itself upon the completion of the canvass of
the results of the plebiscite, and I opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I
support the stand of Commissioner Bernas because it is really the date of the casting of the "yes"
votes that is the date of the ratification of the Constitution The announcement merely confirms the
ratification even if the results are released two or three days after. I think it is a fundamental principle
in political law, even in civil law, because an announcement is a mere confirmation The act of
ratification is the act of voting by the people. So that is the date of the ratification. If there should be
any need for presidential proclamation, that proclamation will merely confirm the act of ratification.
Thank you, Madam President.
THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the same support for
Commissioner Bernas, because the canvass thereafter is merely the mathematical confirmation of
what was done during the date of the plebiscite and the proclamation of the President is merely the
official confirmatory declaration of an act which was actually done by the Filipino people in adopting
the Constitution when they cast their votes on the date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity
of the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what
happens to the obligations and rights that accrue upon the approval of the Constitution? So I think
we must have a definite date. I am, therefore, in favor of the Davide amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the
Commission on Elections to declare the results of the canvass?
FR. BERNAS. There would be because it is the Commission on Elections which makes the official
announcement of the results.
MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has
declared the results of the canvass, will there be a necessity for the President to make a
proclamation of the results of the canvass as submitted by the Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.
MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the
Constitution has been ratified or not.
FR. BERNAS. I would say that the proclamation made by the President would be immaterial
because under the law, the administration of all election laws is under an independent Commission
on Elections. It is the Commission on Elections which announces the results.
MR. MAAMBONG. But nevertheless, the President may make the proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on
Elections says, it would have no effect. I would only add that when we say that the date of effectivity
is on the day of the casting of the votes, what we mean is that the Constitution takes effect on every
single minute and every single second of that day, because the Civil Code says a day has 24 hours.
So that even if the votes are cast in the morning, the Constitution is really effective from the previous
midnight. So that when we adopted the new rule on citizenship, the children of Filipino mothers or
anybody born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are
natural-born citizens, no matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the
results of the canvass by the COMELEC retroacts to the date of the plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely
the proposal of Commissioner Bernas which speaks of the date (of ratification that would have a
definite date, because there would be no definite date if we depend upon the canvassing by the
COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the
President, would announce that a majority of the votes cast on a given date was in favor of the
Constitution. And that is the date when the Constitution takes effect, apart from the fact that the
provision on the drafting or amendment of the Constitution provides that a constitution becomes
effective upon ratification by a majority of the votes cast, although I would not say from the very
beginning of the date of election because as of that time it is impossible to determine whether there
is a majority. At the end of the day of election or plebiscite, the determination is made as of that time-
the majority of the votes cast in a plebiscite held on such and such a date. So that is the time when
the new Constitution will be considered ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide
and I support the view of Commissioner Bernas and the others because the ratification of the
Constitution is on the date the people, by a majority vote, have cast their votes in favor of the
Constitution. Even in civil law, if there is a contract, say, between an agent and a third person and
that contract is confirmed or ratified by the principal, the validity does not begin on the date of
ratification but it retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the date that the people have
cast their affirmative votes in favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his
amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be
effective on the very day of the plebiscite, I am withdrawing my amendment on the assumption that
any of the following bodies the Office of the President or the COMELEC will make the formal
announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the
committee.
MR. MAAMBONG. The committee will read again the formulation indicated in the original committee
report as Section 12.
This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite called for the purpose and shall supersede all previous Constitutions.
We ask for a vote, Madam President.
V O T I N G
THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their
hands.)
As many as are against, please raise their hand. (No Member raised his hand.)
The results show 35 votes in favor and none against; Section 12 is approved.
2
The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its
ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution promulgated on March
25, 1986 must be deemed to have been superseded by the 1987 Constitution on the same date February 2, 1987
and (2) by and after said date, February 2, 1987, absent any saying clause to the contrary in the Transitory Article of
the Constitution, respondent OIC Governor could no longer exercise the power to replace petitioners in their
positions as Barangay Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent
OIC Governors designation on February 8, 1987 of their successors could no longer produce any legal force and
effect. While the Provisional Constitution provided for a one-year period expiring on March 25, 1987 within which the
power of replacement could be exercised, this period was shortened by the ratification and effectivity on February 2,
1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so
provided for in the Transitory Article, as indeed they provided for multifarious transitory provisions in twenty six
sections of Article XVIII, e.g. extension of the six-year term of the incumbent President and Vice-President to noon
of June 30, 1992 for purposes of synchronization of elections, the continued exercise of legislative powers by the
incumbent President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals
Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could
be open to serious questions," in view of the provisions of Sections 8 (1) and 9, Article VIII of the Constitution which
require prior endorsement thereof by the Judicial and Bar Council created under the Constitution. It should be stated
for the record that the reported date of the appointments, February 2, 1987, is incorrect. The official records of the
Court show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on February
1, 1987 and they were all appointed on or before January 31, 1987.
3
(Similarly, the records of the Department of
Justice likewise show that the appointment papers of the last batch of provincial and city fiscals signed by the President in
completion of the reorganization of the prosecution service were made on January 31, 1987 and transmitted to the
Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no appointments to the
Judiciary have been extended by the President, pending the constitution of the Judicial and Bar Council, indicating that
the Chief Executive has likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly
declared by the Court.
CRUZ, J ., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones
of thunder. She has written another persuasive opinion, and I am delighted to concur. I note that it in effect affirms
my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I submitted that the local OICs may no
longer be summarily replaced, having acquired security of tenure under the new Constitution. Our difference is that
whereas I would make that right commence on February 25, 1987, after the deadline set by the Freedom
Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that
better view and agree with her ponencia completely.
SARMIENTO, J ., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with
respect to the tenure of government functionaries, as follows:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if such appointment is made within
a period of one year from February 25, 1986.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period
began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To my mind the 1987
constitution took effect on February 11, 1987, the date the same was proclaimed ratified pursuant to Proclamation
No. 58 of the President of the Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes
cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been
ascertained, and not at the time the people cast their votes to approve or reject it. For it cannot be logically said that
Constitution was ratified during such a plebiscite, when the will of the people as of that time, had not, and could not
have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have
been valid under the Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in
particular, the appointments of some seven Court of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the
President reportedly extended on February 2, 1987. 1 Under Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative
of the Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a
retired Member of the Supreme Court, and a representative of the private sector.
xxx xxx xxx
2Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar Council for every
vacancy, Such appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments
thereto from the date it is proclaimed ratified.
In Magtoto v. Manguera,
2
we held that the 1973 Constitution became in force and effect on January 17, 1973, the date
Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971
Constitutional Convention," was issued, although Mr. Justice, now Chief Justice, Teehankee would push its effectivity date
further to April 17, 1973, the date our decision in Javellana v. Executive Secretary,
3
became final. And this was so
notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the
Constitution of nineteen-hundred and thirty- five and all amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the
1976 amendments submitted in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as
duly ratified by the Filipino people in the referendum plebiscite held Oct. 16-17, 1976 and are therefore effective
and in full force and effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall have proclaimed that they
have been ratified by a majority of the votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the
Filipino People of the Amendments of Section 7, Article X of the Constitution" (lengthening the terms of office of
judges and justices). The Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite
held, together with the election for local officials, on January 30, 1980, and that said amendment is
hereby declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect
on the date the incumbent President/Prime Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of
the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore
Effective and in Full Force and Effect." The Proclamation, in declaring the said amendments duly approved, further
declared them "[e]ffective and in full force and in effect as of the date of this Proclamation," It shall be noted, in this
connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a
Constituent Assembly, which parented these amendments, the same:
... shall become valid as part of the Constitution when approved by a majority of the votes cast in a
plebiscite to be held pursuant to Section 2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection,
the Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a
Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate Funds Therefore,"
provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the
plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of
Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the
Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and
113." It states that the amendments:
....are therefore effective and in full force and effect as of the date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643),
which states, that:
The proposed amendments shall take effect on the date the President of the Philippines shall
proclaim that they have been ratified by a majority of the votes cast in the plebiscite held for the
purpose, but not later than three months from the approval of the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an
election/plebiscite at which it is submitted to the people for their ratification pursuant to Section 2 of Article XVI of the
Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of
the plebiscite is a view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to
Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September 18, 1946, was
adopted on April 9,1947. The April 9, 1947 Resolution makes no mention of a retroactive application. Accordingly,
when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission
of 1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and
is therefore effective and in full force and effect.
4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga
5
in which we declared, in passing, that the new Charter was ratified on
February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve
the case on account of a categorical holding that the 1987 Constitution came to life on February 2, 1987. In any event, if
we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on
February 8, 1987 were valid, the 1987 Constitution not being then as yet in force.
Footnotes
1 Topacio, Jr. vs. Pimentel G.R. No. 73770, April 10, 1986.
2 Section 2, BP Blg. 222.
3 Article 11, Section 25 and Article X, Sections 1, 2, 14, among others.
4 Article X, Section 4.
5 Section 3, BP Blg. 222.
Teehankee, C.J., concurring:
1 Volume Five, Record of the Constitutional Commission Proceedings and Debates, pages 620-623;
emphasis supplied.
2 The entire draft Constitution was approved on October 12, 1986 forty forty-five votes in favor and
two against.
3 The seven Court of Appeals Justices referred to are Justices Alfredo L. Benipayo, Minerva G.
Reyes, Magdangal B. Elma, Cecilio PE, Jesus Elbinias, Nicolas Lapena Jr. and Justo P. Torres, Jr.,
and their appointments bear various dates from January 9, 1987 to January 31, 1987.
Sarmiento, J., dissenting:
1 Manila Bulletin, Feb. 3, 1987, p. 1, cols. 6-7 Philippine Daily Inquirer, Feb. 3,1987, p. 1, cot 1;
Malaya, Feb. 3, 1987, p. 1, col. 1.
2 Nos. 3720102 March 3, 1975, 63 SCRA 4 (1975).
3 Nos. L-36142, March 31, 1973, 50 SCRA 30 (1973).
4 Proclamation No. 58 (1987).
5 G.R. No. 72301.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------ x
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR.,
SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.
x------------------------------------------------------ x
ATTY. PETE QUIRINO QUADRA, Intervenor.
x--------------------------------------------------------x
BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA represented by its Chairperson
Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by its Secretary General Joel Maglunsod, HEAD represented
by its Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas,
MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA represented by its Secretary
General Emerenciana de Jesus, GABRIELA WOMENS PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN
represented by Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer
Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and Businessmen, DR. DARBY
SANTIAGO of the Solidarity of Health Against Charter Change, DR. REGINALD PAMUGAS of Health Action for Human
Rights, Intervenors.
x--------------------------------------------------------x
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-BARAQUEL,Intervenors.
x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.
x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
x---------------------------------------------------------x
LUWALHATI RICASA ANTONINO, Intervenor.
x ------------------------------------------------------- x
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT
INCIONG, Intervenors.
x ------------------------------------------------------- x
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.
x -------------------------------------------------------- x
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR. VICTORINO F.
BALAIS, Intervenors.
x -------------------------------------------------------- x
SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor.
x ------------------------------------------------------- x
SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.
x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR, and RANDALL
TABAYOYONG, Intervenors.
x -------------------------------------------------------- x
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS, Intervenors.
x --------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL,
JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors.
x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.
x -----------------------------------------------------x
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, NICODEMO
T. FERRER, and John Doe and Peter Doe,, Respondent.
D E C I S I O N
CARPIO, J .:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections ("COMELEC")
denying due course to an initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado ("Lambino Group"), with
other 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 and Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least twelveper
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 Groups initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI (Legislative
Department)
4
and Sections 1-4 of Article VII (Executive Department)
5
and by adding Article XVIII entitled "Transitory
Provisions."
6
These proposed changes will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of
government. The Lambino Group prayed that after due publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE
FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-
PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating modifications in the proposed
Article XVIII (Transitory Provisions) of their initiative.
7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Groups petition for lack of an
enabling law governing initiative petitions to amend the Constitution. The COMELEC invoked this Courts ruling in Santiago v.
Commission on Elections
8
declaring RA 6735 inadequate to implement the initiative clause on proposals to amend the
Constitution.
9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus to set aside the
COMELEC Resolution of 31 August 2006 and to compel the COMELEC to give due course to their initiative petition. The
Lambino Group contends that the COMELEC committed grave abuse of discretion in denying due course to their petition
since Santiago is not a binding precedent. Alternatively, the Lambino Group claims that Santiago binds only the parties to that
case, and their petition deserves cognizance as an expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC Commissioners to show
cause why they should not be cited in contempt for the COMELECs verification of signatures and for "entertaining" the Lambino
Groups petition despite the permanent injunction in Santiago. The Court treated the Binay Groups petition as an opposition-in-
intervention.
In his Comment to the Lambino Groups petition, the Solicitor General joined causes with the petitioners, urging the Court to
grant the petition despite the Santiago ruling. The Solicitor General proposed that the Court treat RA 6735 and its implementing
rules "as temporary devises to implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings supporting or opposing the Lambino Groups 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 Groups standing to file the petition; (2) the validity of the signature
gathering and verification process; (3) the Lambino Groups compliance with the minimum requirement for the percentage of
voters supporting an initiative petition under Section 2, Article XVII of the 1987 Constitution;
12
(4) the nature of the proposed
changes as revisions and not mere amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the
Lambino Groups 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 Groups initiative petition complies with Section 2, Article XVII of the Constitution on amendments to the
Constitution through a peoples initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential
terms and conditions" to implement the initiative clause on proposals to amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino Groups 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 peoples initiative.
Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Groups
glaring failure to comply with the basic requirements of the Constitution. For following the Courts 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 peoples 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 thatthe 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 peoples 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, inCapezzuto 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 signers 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 peoples 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. Quadras opposition and the signature sheet attached to the Lambino Groups
Memorandum are the same. We reproduce below the signature sheet in full:
Province: City/Municipality: No. of
Legislative District: Barangay:
Verified
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
Number
Name
Last Name, First
Name, M.I.
Address Birthdate
MM/DD/YY
Signature Verification
1
2
3
4
5
6
7
8
9
10
_________________
Barangay Official
(Print Name and Sign)
_________________
Witness
(Print Name and Sign)
__________________
Witness
(Print Name and Sign)
There is not a single word, phrase, or sentence of text of the Lambino Groups 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 Groups 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. Aumentados
"Verification/Certification" of the 25 August 2006 petition, as well as of the 30 August 2006 amended petition, filed with the
COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a registered voter, for and
on behalf of the Union of Local Authorities of the Philippines, as shown by ULAP Resolution No. 2006-02 hereto
attached, and as representative of the mass of signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the 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 PEOPLES CONSULTATIVE COMMISSION ON CHARTER
CHANGE THROUGH PEOPLES 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 Peoples 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 Peoples 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 Peoples
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
PEOPLES CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH PEOPLES 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 peoples initiative and referendum as a mode of amending the
1987 Constitution." The proposals of the Consultative Commission
24
arevastly 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 Groups proposed changes do not touch. The
Lambino Groups proposed changes purport to affect only Articles VI and VII of the existing Constitution, including the
introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing of the 25 August 2006
petition or the 30 August 2006 amended petition with the COMELEC. However, ULAP Resolution No. 2006-02 does not establish
that ULAP or the Lambino Group caused the circulation of the draft petition, together with the signature sheets, six months before
the filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the Lambino Groups
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 Groups 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 Groups statement that they circulated to the people "the petition for initiative filed with the COMELEC" appears
an afterthought, made after the intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province Chapters)
and Atty. Quadra had pointed out that the signature sheets did not contain the text of the proposed changes. In their
Consolidated Reply, the Lambino Group alleged that they circulated "the petition for initiative" but failed to mention
the amended petition. This contradicts what Atty. Lambino finally stated during the oral arguments that what they circulated was
the draft of the amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not read the measure attached to
a referendum petition cannot question his signature on the ground that he did not understand the nature of the act." The
Lambino Group quotes an authority that cites a proposed changeattached 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 Groups proposed changes were not incorporated
with, or attached to, the signature sheets. The Lambino Groups 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 Groups 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 Groups 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 Groups signature sheets. The people who
signed the signature sheets had no idea that they were proposing these amendments. These three proposed changes are highly
controversial. The people could not have inferred or divined these proposed changes merely from a reading or rereading of the
contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people during the signature-
gathering that the elections for the regular Parliament would be held during the 2007 local elections if the proposed
changes were ratified before the 2007 local elections. However, the text of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the members of Parliament, which shall be
synchronized and held simultaneously with the election of all local government officials. x x x x (Emphasis
supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with the 2007 local elections.
This section merely requires that the elections for the regular Parliament shall be held simultaneously with the local
elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily written the word
"next" before the phrase "election of all local government officials." This would have insured that the elections for the regular
Parliament would be held in the next local elections following the ratification of the proposed changes. However, the absence of
the word "next" allows the interim Parliament to schedule the elections for the regular Parliament simultaneously with any future
local elections.
Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows incumbent
members of the House of Representatives to hold office beyond their current three-year term of office, and possibly even beyond
the five-year term of office of regular members of the Parliament. Certainly, this is contrary to the representations of Atty.
Lambino and his group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group
deceived the 6.3 million signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the proposed
amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to rely on the verbal
representations of Atty. Lambino and his group because the signature sheets did not 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 Groups initiative springs another surprise on the people who signed the signature sheets. The proposed changes
mandate the interim Parliament to make further amendments or revisions to the Constitution. The proposed Section 4(4), Article
XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall convene to
propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy,
decentralization and a strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and the people should simply
ignore it. Far from being a surplusage, this provision invalidates the Lambino Groups 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 amendments 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 initiatives 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 Groups amended petition of 30 August 2006. The proposed Section
4(3) of the Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until noon of the thirtieth day of
June 2010.
After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim Parliament does not
schedule elections for the regular Parliament by 30 June 2010. However, there is no counterpart provision for the present
members of the House of Representatives even if their term of office will all end on 30 June 2007, three years earlier than that of
half of the present Senators. Thus, all the present members of the House will remain members of the interim Parliament after 30
June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all the powers of the
President. If the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010, the Prime Minister
will come only from the present members of the House of Representatives to 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 Parliaments 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 nations fundamental law,
the writing of the text of the proposed amendments cannot behidden 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 Groups 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 peoples 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
peoples 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
x x x x
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.
x x x x
MR. MAAMBONG: My first question: Commissioner Davides 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 peoples 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. J ordan,
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-thirds 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 peoples initiative can only propose amendments to the Constitution
since the Constitution itself limits initiatives to amendments. There can be no deviation from the constitutionally prescribed modes
of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the
specific modes prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:
34
It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the
instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the
instrument is almost invariably treated as extra-constitutional and revolutionary. x x x x "While it is universally
conceded that the people are sovereign and that they have power to adopt a constitution and to change their own work at
will, they must, in doing so, act in an orderly manner and according to the settled principles of constitutional law. And
where the people, in adopting a constitution, have prescribed the method by which the people may alter or amend it, an
attempt to change the fundamental law in violation of the self-imposed restrictions, is unconstitutional." x x x x (Emphasis
supplied)
This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and duty to
insure compliance with the clear command of the Constitution that a peoples initiative may only amend, never revise, the
Constitution.
The question is, does the Lambino Groups initiative constitute an amendment or revision of the Constitution? If the Lambino
Groups 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 Groups initiative is a revision and not merely an amendment.
Quantitatively, the Lambino Groups 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 Groups 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.
x x x x
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 Groups 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 Groups 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 Groups present initiative seeks far more radical changes in the structure of government than the initiative in Adams.
The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of procedure, not of
substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution,
substantive changes are called "revisions" because members of the deliberative body work full-time on the changes.
However, the same substantive changes, when proposed through an initiative, are called "amendments" because the changes
are made by ordinary people who do not make an "occupation, profession, or vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:
99. With this distinction in mind, we note that the constitutional provisions expressly provide for both "amendment" and
"revision" when it speaks of legislators and constitutional delegates, while the same provisions expressly provide only for
"amendment" when it speaks of the people. It would seem that the apparent distinction is based on the actual experience
of the people, that on one hand the common people in general are not expected to work full-time on the matter of
correcting the constitution because that is not their occupation, profession or vocation; while on the other hand, the
legislators and constitutional convention delegates are expected to work full-time on the same matter because that is
their occupation, profession or vocation. Thus, the difference between the words "revision" and "amendment"
pertain only to the process or procedure of coming up with the corrections, for purposes of interpreting the
constitutional provisions.
100. Stated otherwise, the difference between "amendment" and "revision" cannot reasonably be in the
substance or extent of the correction. x x x x (Underlining in the original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed changes that
the Lambino Group wrote in the present initiative, the changes would constitute a revision of the Constitution. Thus, the
Lambino Group concedes that the proposed changes in the present initiative constitute a revision if Congress or a
constitutional convention had drafted the changes. However, since the Lambino Group as private individuals drafted the
proposed changes, the changes are merely amendments to the Constitution. The Lambino Group trivializes the serious matter of
changing the fundamental law of the land.
The express intent of the framers and the plain language of the Constitution contradict the Lambino Groups 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 Groups position. Any theory advocating that a proposed change involving a radical structural
change in government does not constitute a revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have attempted to advance
without any success. In Lowe v. Keisling,
46
the Supreme Court of Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by initiative. His theory
is that Article XVII, section 2 merely provides a procedure by which the legislature can propose a revision of the
constitution, but it does not affect proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution that cannot be
enacted through the initiative process. They assert that the distinction between amendment and revision is determined by
reviewing the scope and subject matter of the proposed enactment, and that revisions are not limited to "a formal
overhauling of the constitution." They argue that this ballot measure proposes far reaching changes outside the lines of
the original instrument, including profound impacts on existing fundamental rights and radical restructuring of the
governments relationship with a defined group of citizens. Plaintiffs assert that, because the proposed ballot measure
"will refashion the most basic principles of Oregon constitutional law," the trial court correctly held that it violated Article
XVII, section 2, and cannot appear on the ballot without the prior approval of the legislature.
We first address Mabons argument that Article XVII, section 2(1), does not prohibit revisions instituted by initiative.
In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of the constitution may not be accomplished by
initiative, because of the provisions of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed
amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the
Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the constitution which
provides the means for constitutional revision and it excludes the idea that an individual, through the initiative, may place
such a measure before the electorate." x x x x
Accordingly, we reject Mabons argument that Article XVII, section 2, does not apply to constitutional revisions
proposed by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Groups 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 peoples
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 Groups 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 Groups 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 Groups proposed changes refer to the
Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among the few countries withunicameral 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 peoples 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 peoples initiative will only result in gross absurdities in
the Constitution.
In sum, there is no doubt whatsoever that the Lambino Groups 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 peoples
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 peoples initiative to amend the Constitution. There is no need to revisit this Courts
ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to cover the system
of initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the outcome of the present petition.
Thus, this Court must decline to revisit Santiago which effectively ruled that RA 6735 does not comply with the requirements of
the Constitution to implement the initiative clause on amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the Court can be resolved on
some other grounds. Such avoidance is a logical consequence of the well-settled doctrine that courts will not pass upon the
constitutionality of a statute if the case can be resolved on some other grounds.
51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives to amend the
Constitution, this will not change the result here because the present petition violates Section 2, Article XVII of the Constitution.
To be a valid initiative, the present initiative must first comply with Section 2, Article XVII of the Constitution even before
complying with RA 6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an initiative on the 1987
Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories." Section 5(b) of
RA 6735 requires that the people must sign the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30 August 2006 filed with the
COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and
amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino
Group, claiming to act "together with" the 6.3 million signatories, merely attached the signature sheets to the petition and
amended petition. Thus, the petition and amended petition filed with the COMELEC did not even comply with the basic
requirement of RA 6735 that the Lambino Group claims as valid.
The Lambino Groups 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 Groups initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino Groups Initiative
In dismissing the Lambino Groups initiative petition, the COMELEC en banc merely followed this Courts ruling
inSantiago and Peoples Initiative for Reform, Modernization and Action (PIRMA) v. COMELEC.
52
For following this Courts
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 peoples 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 peoples 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 "peoples voice," "peoples 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 peoples 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 nations stability.
The Lambino Group claims that their initiative is the "peoples 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 "peoples" 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 "peoples 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
peoples 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 Courts raison detre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio Morales, Callejo,
Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.
____________________
EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS V. COMMISSION
ON ELECTIONS ET AL.
SEPARATE CONCURRING OPINION
PANGANIBAN, CJ .:
Without the rule of law, there can be no lasting prosperity and certainly no
liberty.
Beverley McLachlin
1
Chief Justice of Canada
After a deep reflection on the issues raised and a careful evaluation of the parties respective arguments -- both oral and written -
- as well as the enlightened and enlightening Opinions submitted by my esteemed colleagues, I am fully convinced that the
present Petition must be dismissed.
I write, however, to show that my present disposition is completely consistent with my previous Opinions and votes on the two
extant Supreme Court cases involving an initiative to change the Constitution.
In my Separate Opinion in Santiago v. Comelec,
2
I opined "that taken together and interpreted properly and liberally, the
Constitution (particularly Art. XVII, Sec. 2), Republic Act 6735 and Comelec Resolution 2300 provide more than sufficient
__________________
SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.
"With all due respect, I find the majoritys position all too sweeping and all too extremist. It is equivalent to burning the
whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the
Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative
correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its
proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason.
Taken Together and Interpreted Properly,
the Constitution, R.A. 6735 and Comelec Resolution
2300 Are Sufficient to Implement Constitutional Initiatives
"While R.A. 6735 may not be a perfect law, it was as the majority openly concedes intended by the legislature to
cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution. I completely
agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that
RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments to the
Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Courts
unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, that "provisions for initiative
. . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of
the rights granted thereby"; and in Garcia vs. Comelec, that any "effort to trivialize the effectiveness of peoples initiatives
ought to be rejected."
"No law can completely and absolutely cover all administrative details. In recognition of this, R.A. 6735 wisely
empowered the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out the
purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such
Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and
referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of
Acting Chairperson Haydee B. Yorac, Comms. Alfredo
authority to implement, effectuate and realize our peoples power to amend the Constitution."
__________________
E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these
Commissioners who signed Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile
motive unto them, other than an honest, sincere and exemplary effort to give life to a cherished right of our people.
"The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in
reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for the
Resolution is the same law, R.A. 6735.
"I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII,
Sec. 2), R.A. 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and
realize our peoples power to amend the Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
"I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18
December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of initiative.
In fact, I believe that such restraining order as against private respondents should not have been issued, in the first place.
While I agree that the Comelec should be stopped from using public funds and government resources to help them
gather signatures, I firmly believe that this Court has no power to restrain them from exercising their right of initiative. The
right to propose amendments to the Constitution is really a species of the right of free speech and free assembly. And
certainly, it would be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to
his/her beliefs. As the eminent Voltaire once said, I may disagree with what you say, but I will defend to the death your
right to say it. After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote, freedom for the
thought that we hate.
Epilogue
"By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is a
new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-
admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They
are sacred democratic rights of our people to be used as
Six months after, in my Separate Opinion in Peoples Initiative for Reform, Modernization and Action (PIRMA) v. Comelec,
3
I
joined the rest of the members of the Court in ruling "by a unanimous vote, that no grave abuse of discretion could be attributed
to the Comelec in dismissing the petition filed by
__________________
Constitution x x x." While concededly, petitioners in this case were not direct parties in Santiago, nonetheless the Courts
injunction against the Comelec covered ANY petition, not just the Delfin petition which was the immediate subject of said
case. As a dissenter in Santiago, I believed, and still do, that the majority gravely erred in rendering such a
sweeping injunction, but I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with
said decisions ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of the land. It
had no choice but to obey. Its obedience cannot constitute grave abuse of discretion. Refusal to act on the PIRMA
petition was the only recourse open to the Comelec. Any other mode of action would have constituted defiance of the
Court and would have been struck down as grave abuse of discretion and contumacious disregard of this Courts
supremacy as the final arbiter of justiciable controversies.
Second Issue:
Sufficiency of RA 6735
"I repeat my firm legal position that RA 6735 is adequate to cover initiatives on the Constitution, and that
whatever administrative details may have been omitted in said law are satisfactorily provided by Comelec
Resolution 2300. The promulgation of Resolution 2300 is sanctioned by Section 2, Article IX-C of the Constitution, which
vests upon the Comelec the power to "enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall." The Omnibus Election Code likewise empowers the electoral body
to "promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is
required to enforce and administer x x x." Finally and most relevantly, Section 20 of Ra 6735 specifically authorizes
Comelec "to promulgate rules and regulations as may be necessary to carry out the purposes of this Act."
"In my dissent in Santiago, I wrote that "there is a right way to do the right thing at the right time and for the right
reason." Let me explain further.
The Right Thing
"A peoples initiative is direct democracy in action. It is the right thing that citizens may avail themselves of to articulate
their will. It is a new and treasured feature of the Filipino constitutional system. Even the majority implicitly conceded its
value and worth in our legal firmament when it implored Congress "not to tarry any longer in complying with the
constitutional mandate to provide for implementation of the right (of initiative) of the people x x x." Hence, in the en
banc case of Subic Bay Metropolitan Authority vs. Comelec, [G.R. No. 125416, September 26, 1996], this Court
unanimously held that "(l)ike elections, initiative and referendum are powerful and valuable modes of expressing popular
PIRMA therein," since the Commission had "only complied" with the Santiago Decision.
__________________
sovereignty. And this Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their
legitimate exercise."
The Right Way
"From the outset, I have already maintained the view that "taken together and interpreted properly and liberally, the
Constitution (particularly Art. XVII, Sec. 2), RA 6735 and Comelec Resolution 2300 provide more than sufficient authority
to implement, effectuate and realize our peoples power to amend the Constitution." Let me now demonstrate the
adequacy of RA 6735 by outlining, in concrete terms, the steps to be taken the right way to amend the Constitution
through a peoples initiative.
"Pursuant to Section 3(f) of the law, the Comelec shall prescribe the form of the petition which shall contain the
proposition and the required number of signatories. Under Sec. 5(c) thereof, the petition shall state the following:
c.1 contents or text of the [provision or provisions] sought to be x x x amended, x x x;
c.2 the proposition [in full text];
c.3 the reason or reasons therefor [fully and clearly explained];
c.4 that it is not one of exceptions provided herein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition in not more than one hundred (100) words which shall be legibly written
or printed at the top of every page of the petition.
"Section 8(f) of Comelec Resolution 2300 additionally requires that the petition include a formal designation of the duly
authorized representatives of the signatories.
"Being a constitutional requirement, the number of signatures becomes a condition precedent to the filing of the petition,
and is jurisdictional. Without such requisite signatures, the Commission shall motu proprio reject the petition.
"Where the initiators have substantially complied with the above requirements, they may thence file the petition with the
Comelec which is tasked to determine the sufficiency thereof and to verify the signatures on the basis of the registry list
of voters, voters affidavits and voters identification cards. In deciding whether the petition is sufficient, the Comelec shall
also determine if the proposition is proper for an initiative, i.e., if it consists of an amendment, not a revision, of the
Constitution. Any decision of the electoral body may be appealed to the Supreme Court within thirty (30) days from
notice.
I added "that my position upholding the adequacy of RA 6735 and the validity of Comelec Resolution 2300 will notipso
__________________
"Within thirty (30) days from receipt of the petition, and after the determination of its sufficiency, the Comelec shall publish
the same in Filipino and English at least twice in newspapers of general and local circulation, and set the date of the
plebiscite. The conduct of the plebiscite should not be earlier than sixty (60) days, but not later than ninety (90) days after
certification by the Comelec of the sufficiency of the petition. The proposition, if approved by a majority of the votes cast
in the plebiscite, becomes effective as of the day of the plebiscite.
"From the foregoing, it should be clear that my position upholding the adequacy of RA 6735 and the validity of Comelec
Resolution 2300 will not ipso facto validate the PIRMA petition and automatically lead to a plebiscite to amend the
Constitution. Far from it. Among others, PIRMA must still satisfactorily hurdle the following searching issues:
1. Does the proposed change the lifting of the term limits of elective officials -- constitute a mere amendment and not a
revision of the Constitution?
2. Which registry of voters will be used to verify the signatures in the petition? This question is relevant considering that
under RA 8189, the old registry of voters used in the 1995 national elections was voided after the barangay elections on
May 12, 1997, while the new list may be used starting only in the elections of May 1998.
3. Does the clamor for the proposed change in the Constitution really emanate from the people who signed the petition
for initiative? Or it is the beneficiaries of term extension who are in fact orchestrating such move to advance their own
political self-interest?
4. Are the six million signatures genuine and verifiable? Do they really belong to qualified warm bodies comprising at
least 12% of the registered voters nationwide, of which every legislative district is represented by at least 3% of the
registered voters therein?
"I shall expound on the third question in the next section, The Right Reason. Question Nos. 1 and 2 above, while
important, are basically legal in character and can be determined by argumentation and memoranda. However, Question
No. 4 involves not only legal issues but gargantuan hurdles of factual determination. This to my mind is the crucible, the
litmus test, of a peoples petition for initiative. If herein petitioners, led by PIRMA, succeed in proving -- not just alleging --
that six million voters of this country indeed want to amend the Constitution, what power on earth can stop them? Not this
Court, not the Comelec, not even the President or Congress.
facto validate the PIRMA petition and automatically lead to a plebiscite to amend the Constitution. Far from it." I stressed that
PIRMA must show the following, among others:
__________________
"It took only one million people to stage a peaceful revolution at EDSA, and the very rafters and foundations of the martial
law society trembled, quaked and crumbled. On the other hand, PIRMA and its co-petitioners are claiming that they have
gathered six million signatures. If, as claimed by many, these six million signatures are fraudulent, then let them be
exposed and damned for all history in a signature-verification process conducted under our open system of legal
advocacy.
"More than anything else, it is the truth that I, as a member of this Court and as a citizen of this country, would like to
seek: Are these six million signatures real? By insisting on an entirely new doctrine of statutory inadequacy, the majority
effectively suppressed the quest for that truth.
The Right Reason
"As mentioned, the third question that must be answered, even if the adequacy of RA 6735 and the validity of Comelec
Resolution 2300 were upheld by the majority is: Does the clamor for the proposed change to the Constitution really
emanate from the people who signed the petition for initiative? Or is it the beneficiaries of term extension who are in fact
orchestrating such move to advance their own political self-interests? In other words, is PIRMAs exercise of the right to
initiative being done in accordance with our Constitution and our laws? Is such attempted exercise legitimate?
"In Garcia vs. Commission on Elections, we described initiative, along with referendum, as the ultimate weapon of the
people to negate government malfeasance and misfeasance. In Subic Bay, we specified that initiative is entirely the
work of the electorate x x x a process of lawmaking by the people themselves without the participation and against the
wishes of their elected representatives. As ponente of Subic Bay, I stand foursquare on this principle: The right to
amend through initiative belongs only to the people not to the government and its minions. This principle finds
clear support from utterances of many constitutional commissioners like those quoted below:
"[Initiative is] a reserve power of the sovereign people, when they are dissatisfied with the National Assembly x x x [and]
precisely a fallback position of the people in the event that they are dissatisfied." -- Commissioner Ople
"[Initiative is] a check on a legislative that is not responsive [and resorted to] only if the legislature is not as responsive to
the vital and urgent needs of people." -- Commissioner Gascon
(1) The proposed change -- the lifting of term limits of elective officials -- "constitute[s] a mere amendment and not a revision of
the Constitution."
_________________
"[Initiative is an] extraordinary power given to the people [and] reserved for the people [which] should not be frivolously
resorted to." -- Commissioner Romulo
"Indeed, if the powers-that-be desire to amend the Constitution, or even to revise it, our Charter itself provides them other
ways of doing so, namely, by calling a constitutional convention or constituting Congress into a constituent assembly.
These are officialdoms weapons. But initiative belongs to the people.
"In the present case, are PIRMA and its co-petitioners legitimate peoples organizations or are they merely fronts for
incumbents who want to extend their terms? This is a factual question which, unfortunately, cannot be judicially answered
anymore, because the Supreme Court majority ruled that the law that implements it, RA 6735, is inadequate or
insufficient insofar as initiatives to the Constitutions are concerned. With such ruling, the majority effectively abrogated a
constitutional right of our people. That is why in my Separate Opinion in Santiago, I exclaimed that such precipitate action
"is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain." I firmly
maintain that to defeat PIRMAs effort, there is no need to "burn" the constitutional right to initiative. If PIRMAs exercise is
not "legitimate," it can be exposed as such in the ways I have discussed short of abrogating the right itself. On the other
hand, if PIRMAs position is proven to be legitimate if it hurdles the four issues I outlined earlier by all means, we
should allow and encourage it. But the majoritys theory of statutory inadequacy has pre-empted unnecessarily and
invalidly, in my view any judicial determination of such legitimacy or illegitimacy. It has silenced the quest for truth into
the interstices of the PIRMA petition.
The Right Time
"The Constitution itself sets a time limitation on when changes thereto may be proposed. Section 2 of Article XVII
precludes amendments "within five years following [its] ratification x x x nor oftener than once every five years thereafter."
Since its ratification, the 1987 Constitution has never been amended. Hence, the five-year prohibition is now inoperative
and amendments may theoretically be proposed at any time.
"Be that as it may, I believe given the present circumstances that there is no more time to lift term limits to enable
incumbents to seek reelection in the May 11, 1998 polls. Between today and the next national
(2) The "six million signatures are genuine and verifiable"; and they "really belong to qualified warm bodies comprising at
__________________
elections, less than eight (8) months remain. Santiago, where the single issue of the sufficiency of RA 6735 was resolved,
took this Court three (3) months, and another two (2) months to decide the motion for reconsideration. The instant case,
where the same issue is also raised by the petitioners, took two months, not counting a possible motion for
reconsideration. These time spans could not be abbreviated any further, because due process requires that all parties be
given sufficient time to file their pleadings.
"Thus, even if the Court were to rule now in favor of the adequacy of RA 6735 as I believe it should and allow the
Comelec to act on the PIRMA petition, such eight-month period will not be enough to tackle the four weighty issues I
mentioned earlier, considering that two of them involve tedious factual questions. The Comelecs decision on any of
these issues can still be elevated to this Court for review, and reconsiderations on our decisions on each of those issues
may again be sought.
"Comelecs herculean task alone of verifying each of the six million signatures is enormously time-consuming,
considering that any person may question the authenticity of each and every signature, initially before the election
registrar, then before the Comelec on appeal and finally, before this Court in a separate proceeding. Moreover, the
plebiscite itself assuming such stage can be reached may be scheduled only after sixty (60) but not more than ninety
(90) days, from the time the Comelec and this Court, on appeal, finally declare the petition to be sufficient.
"Meanwhile, under Comelec Resolution 2946, political parties, groups organizations or coalitions may start selecting their
official candidates for President, Vice President and Senators on November 27, 1997; the period for filing certificates of
candidacy is from January 11 to February 9, 1998; the election period and campaign for national officials start on
February 10, 1998, while the campaign period for other elective officials, on March 17, 1998. This means, by the time
PIRMAs proposition is ready if ever for submission directly to the voters at large, it will have been overcome by the
elections. Time will simply run out on PIRMA,if the intention is to lift term limits in time for the 1998 elections.
"That term limits may no longer be lifted prior to the 1998 elections via a peoples initiative does not detract one whit from
(1) my firm conviction that RA 6735 is sufficient and adequate to implement this constitutional right and, more important,
(2) my faith in the power of the people to initiate changes in local and national laws and the Constitution. In fact, I think
the Court can deliberate on these two items even more serenely and wisely now that the debates will be free from the din
and distraction of the 1998 elections. After all, jurisprudence is not merely for the here and now but, more so, for the
hereafter and the morrow. Let me therefore stress, by way of epilogue, my unbending credo in favor of our peoples right
to initiative.
least 12% of the registered voters nationwide, of which every legislative district is represented by at least 3% of the registered
voters therein."
__________________
Epilogue
"I believe in democracy in our peoples natural right to determine our own destiny.
"I believe in the process of initiative as a democratic method of enabling our people to express their will and chart their
history. Initiative is an alternative to bloody revolution, internal chaos and civil strife. It is an inherent right of the people
as basic as the right to elect, the right to self-determination and the right to individual liberties. I believe that Filipinos have
the ability and the capacity to rise above themselves, to use this right of initiative wisely and maturely, and to choose
what is best for themselves and their posterity.
"Such beliefs, however, should not be equated with a desire to perpetuate a particular official or group of officials in
power. Far from it. Such perpetuation is anathema to democracy. My firm conviction that there is an adequate law
implementing the constitutional right of initiative does not ipso facto result in the victory of the PIRMA petition or of any
proposed constitutional change. There are, after all, sufficient safeguards to guarantee the proper use of such
constitutional right and to forestall its misuse and abuse. First, initiative cannot be used to revise the Constitution, only to
amend it. Second, the petitioners signatures must be validated against an existing list of voters and/or voters
identification cards. Third, initiative is a reverse power of and by the people, not of incumbent officials and their
machinators. Fourth and most important of all, the signatures must be verified as real and genuine; not concocted,
fictitious or fabricated. The only legal way to do this is to enable the Commission on Elections to conduct a nationwide
verification process as mandated by the Constitution and the law. Such verification, it bears stressing, is subject to review
by this Court.
"There were, by the most generous estimate, only a million people who gathered at EDSA in 1986, and yet they changed
the history of our country. PIRMA claims six times that number, not just from the National Capital Region but from all over
the country. Is this claim through the invention of its novel theory of statutory insufficiency, the Courts majority has stifled
the only legal method of determining whether PIRMA is real or not, whether there is indeed a popular clamor to lift term
limits of elected officials, and whether six million voters want to initiate amendments to their most basic law. In
suppressing a judicial answer to such questions, the Court may have unwittingly yielded to PIRMA the benefit of the legal
presumption of legality and regularity. In its misplaced zeal to exterminate the rats, it burned down the whole house. It
unceremoniously divested the people of a basic constitutional right.
In both Opinions, I concluded that we must implement "the right thing [initiative] in the right way at the right time and for the right
reason."
In the present case, I steadfastly stand by my foregoing Opinions in Santiago and PIRMA. Tested against them, the present
Petition of Raul Lambino and Erico Aumentado must be DISMISSED. Unfortunately, the right thingis being rushed in
the wrong way and for the wrong reasons. Let me explain.
No Grave Abuse
of Discretion by Comelec
As in PIRMA, I find no grave abuse of discretion in Comelecs dismissal of the Lambino Petition. After all, the Commission merely
followed the holding in Santiago permanently
____________________
"In the ultimate, the mission of the judiciary is to discover truth and to make it prevail. This mission is undertaken not only
to resolve the vagaries of present events but also to build the pathways of tomorrow. The sum total of the entire process
of adversarial litigation is the verity of facts and the application of law thereto. By the majority cop-out in this mission of
discovery, our country and our people have been deprived not only of a basic constitutional right, as earlier noted, but
also of the judicial opportunity to verify the truth."
enjoining the poll body "from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution
until a sufficient law shall have been validly enacted to provide for the implementation of the system."
Indeed, the Comelec did not violate the Constitution, the laws or any jurisprudence.
4
Neither can whim, caprice,
arbitrariness or personal bias be attributed to the Commission.
5
Quite the contrary, it prudently followed this Courts
jurisprudence in Santiago and PIRMA. Even assuming arguendo that Comelec erred in ruling on a very difficult and unsettled
question of law, this Court still cannot attribute grave abuse of discretion to the poll body with respect to that action.
6
The present Lambino Petition is in exactly the same situation as that of PIRMA in 1997. The differences pointed out by Justice
Reynato S. Puno are, with due respect, superficial. It is argued that, unlike the present Lambino Petition, PIRMA did not contain
verified signatures. These are distinctions that do not make a difference. Precisely, Justice Puno is urging a remand, because the
verification issue is "contentious" and remains unproven by petitioners. Clearly, both the PIRMA and the Lambino Petitions
contain unverified signatures. Therefore, they both deserve the same treatment: DISMISSAL.
Besides, the only reason given in the unanimous Resolution on PIRMA v. Comelec was that the Commission had "only
complied" with this Courts Decision in Santiago, the same reason given by Comelec in this case. The Separate Opinions in
PIRMA gave no other reason. No one argued, even remotely, that the PIRMA Petition should have been dismissed
because the signatures were unverified.
To stress, I adhere to my Opinion in PIRMA that, "[b]eing a constitutional requirement, the number of signatures becomes a
condition precedent to the filing of the petition, and is jurisdictional.
7
Without those signatures, the Comelec shall motu
proprio reject the petition."
So, until and unless Santiago is revisited and changed by this Court or the legal moorings of the exercise of the right are
substantially changed, the Comelec cannot be faulted for acting in accord with this Courts pronouncements. Respondent
Commission has no discretion, under any guise, to refuse enforcement of any final decision of this Court.
8
The refusal of
the poll body to act on the Lambino Petition was its only recourse. Any other mode of action would appear not only
presumptuous, but also contemptuous. It would have constituted defiance of the Court and would have surely been struck down
as grave abuse of discretion and contumacious disregard of the supremacy of this Court as the final arbiter of justiciable
controversies.
Even assuming further that this Court rules, as I believe it should (for the reasons given in my Opinions in Santiago and PIRMA),
that Republic Act 6735 is indeed sufficient to implement an initiative to amend the Constitution, still, no grave abuse of discretion
can be attributed to the Comelec for merely following prevailing jurisprudence extant at the time it rendered its ruling in question.
Only Amendments,
Not Revisions
I reiterate that only amendments, not revisions, may be the proper subject of an initiative to change the Constitution. This
principle is crystal clear from even a laypersons reading of the basic law.
9
I submit that changing the system of government from presidential to parliamentary and the form of the legislature from bicameral
to unicameral contemplates an overhaul of the structure of government. The ponencia has amply demonstrated that the
merger of the legislative and the executive branches under a unicameral-parliamentary system, "[b]y any legal test and under
any jurisdiction," will "radically alter the framework of government as set forth in the Constitution." Indeed, the proposed changes
have an overall implication on the entire Constitution; they effectively rewrite its most important and basic provisions. The prolixity
and complexity of the changes cannot be categorized, even by semantic generosity, as "amendments."
In addition, may I say that of the three modes of changing the Constitution, revisions (or amendments) may be proposed only
through the first two: by Congress or by a constitutional convention. Under the third mode -- peoples initiative -- only
amendments are allowed. Many of the justices Opinions have cited the historical, philosophical and jurisprudential bases of their
respective positions. I will not add to the woes of the reader by reiterating them here.
Suffice it to say that, to me, the practical test to differentiate an amendment from a revision is found in the Constitution itself: a
revision may be done only when the proposed change can be drafted, defined, articulated, discussed and agreed upon
after a mature and democratic debate in a deliberative body like Congress or a Convention. The changes proposed must
necessarily be scrutinized, as their adoption or non-adoption must result from an informed judgment.
Indeed, the constitutional bodies that drafted the 1935, the 1972 and the 1987 Constitutions had to spend many months of
purposeful discussions, democratic debates and rounds of voting before they could agree on the wordings covering the
philosophy, the underlying principles, and the structure of government of our Republic.
Verily, even bills creating or changing the administrative structure of local governments take several weeks or even months of
drafting, reading, and debating before Congress can approve them. How much more when it comes to constitutional changes?
A change in the form of government of our country from presidential-bicameral to parliamentary-unicameral is monumental. Even
the initiative proponents admit this fact. So, why should a revision be rammed down our peoples throats without the benefit of
intelligent discussion in a deliberative assembly?
Added to the constitutional mandate barring revisions is the provision of RA 6735 expressly prohibiting petitions for initiative from
"embracing more than one subject matter."
10
The present initiative covers at least two subjects: (1) the shift from a presidential to
a parliamentary form of government; and (2) the change from a bicameral to a unicameral legislature.
11
Thus, even under
Republic Act 6735 -- the law that Justice Puno and I hold to be sufficient and valid -- the Lambino Petition deserves dismissal.
12 Percent and 3 Percent Thresholds
Not Proven by Petitioners
The litmus test of a peoples petition for initiative is its ability to muster the constitutional requirement that it be supported by at
least 12 percent of the registered voters nationwide, of which at least 3 percent of the registered voters in every legislative district
must be represented. As pointed out by Intervenors One Voice, Inc., et al., however, records show that there was a failure to
meet the minimum percentages required.
12
Even Justice Puno concedes that the 12 percent and 3 percent constitutional requirements involve "contentious facts," which
have not been proven by the Lambino Petition. Thus, he is urging a remand to the Comelec.
But a remand is both imprudent and futile. It is imprudent because the Constitution itself mandates the said requisites of an
initiative petition. In other words, a petition that does not show the required percentages is fatally defective and must be
dismissed, as the Delfin Petition was, in Santiago.
Furthermore, as the ponencia had discussed extensively, the present Petition is void and unconstitutional. It points out that the
Petition dismally fails to comply with the constitutional requirement that an initiative must be directly proposed by the people.
Specifically, the ponencia has amply established that petitioners were unable to show that the Lambino Petition contained, or
incorporated by attachment, the full text of the proposed changes.
So, too, a remand is futile. Even if the required percentages are proven before the Commission, the Petition must still be
dismissed for proposing a revision, not an amendment, in gross violation of the Constitution. At the very least, it
proposes more than one subject, in violation of Republic Act 6735.
Summation
Petitioners plead with this Court to hear the voice of the people because, in the words of Justice Puno who supports them, the
"peoples voice is sovereign in a democracy."
I, too, believe in heeding the peoples voice. I reiterate my Separate Opinion in PIRMA that "initiative is a democratic method
of enabling our people to express their will and chart their history. x x x. I believe that Filipinos have the ability and the capacity to
rise above themselves, to use this right of initiative wisely and maturely, and to choose what is best for themselves and their
posterity."
This belief will not, however, automatically and blindly result in an initiative to change the Constitution, because the present
Petition violates the following:
The Constitution (specifically Article XVII, which allows only amendments, not revisions, and requires definite percentages of
verified signatures)
The law (specifically, Republic Act 6735, which prohibits petitions containing more than one subject)
Jurisprudence (specifically, PIRMA v. Comelec, which dismissed the Petition then under consideration on the ground that, by
following the Santiago ruling, the Comelec had not gravely abused its discretion).
I submit further that a remand of the Lambino Petition is both imprudent and futile. More tellingly, it is a cop-out, a hand-
washing already discredited 2000 years ago. Instead of finger-pointing, I believe we must confront the issues head on,
because the people expect no less from this august and venerable institution of supreme justice.
Epilogue
At bottom, the issue in this case is simply the Rule of Law.
13
Initiative, like referendum and recall, is a treasured feature of the
Filipino constitutional system. It was born out of our world-admired and often-imitated People Power, but its misuse and abuse
must be resolutely rejected. Democracy must be cherished, but mob rule vanquished.
The Constitution is a sacred social compact, forged between the government and the people, between each individual and the
rest of the citizenry. Through it, the people have solemnly expressed their will that all of them shall be governed by laws, and
their rights limited by agreed-upon covenants to promote the common good. If we are to uphold the Rule of Law and reject the
rule of the mob, we must faithfully abide by the processes the Constitution has ordained in order to bring about a peaceful,
just and humane society. Assuming arguendothat six million people allegedly gave their assent to the proposed changes in the
Constitution, they are nevertheless still bound by the social covenant -- the present Constitution -- which was ratified by a far
greater majority almost twenty years ago.
14
I do not denigrate the majesty of the sovereign will; rather, I elevate our society to the
loftiest perch, because our government must remain as one of laws and not of men.
Upon assuming office, each of the justices of the Supreme Court took a solemn oath to uphold the Constitution. Being the
protectors of the fundamental law as the highest expression of the sovereign will, they must subject to the strictest scrutiny any
attempt to change it, lest it be trivialized and degraded by the assaults of the mob and of ill-conceived designs. The
Court must single-mindedly defend the Constitution from bogus efforts falsely attributed to the sovereign people.
The judiciary may be the weakest branch of government. Nonetheless, when ranged against incessant voices from the more
powerful branches of government, it should never cower in submission. On the other hand, I daresay that the same weakness of
the Court becomes its strength when it speaks independently through decisions that rightfully uphold the supremacy of the
Constitution and the Rule of Law. The strength of the judiciary lies not in its lack of brute power, but in its moral courage to
perform its constitutional duty at all times against all odds. Its might is in its being right.
15
During the past weeks, media outfits have been ablaze with reports and innuendoes about alleged carrots offered and sticks
drawn by those interested in the outcome of this case.
16
There being no judicial proof of these allegations, I shall not comment on
them for the nonce, except to quote the Good Book, which says, "There is nothing hidden that will not be revealed, and nothing
secret that will not be known and come to light."
17
Verily, the Supreme Court is now on the crossroads of history. By its decision, the Court and each of its members shall be judged
by posterity. Ten years, fifty years, a hundred years -- or even a thousand years -- from now, what the Court did here, and how
each justice opined and voted, will still be talked about, either in shame or in pride. Indeed, the hand-washing of Pontius Pilate,
the abomination of Dred Scott, and the loathing of Javellana still linger and haunt to this day.
Let not this case fall into the same damnation. Rather, let this Court be known throughout the nation and the world for
its independence, integrity, industry and intelligence.
WHEREFORE, I vote to DISMISS the Petition.
ARTEMIO V. PANGANIBAN
Chief Justice
____________________
EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, ET AL., Respondents.
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A. Q. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, JR. and Commissioners
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John
Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
YNARES-SANTIAGO, J .:
I agree with the opinion of our esteemed colleague, Justice Reynato Puno, that the Courts ruling in Santiago v. COMELEC
1
is
not a binding precedent. However, it is my position that even if Santiago were reversed and Republic Act No. 6735 (R.A. 6735)
be held as sufficient law for the purpose of peoples initiative to amend the Constitution, the petition for initiative in this case must
nonetheless be dismissed.
There is absolutely no showing here that petitioners complied with R.A. 6735, even as they blindly invoke the said law to justify
their alleged peoples initiative. Section 5(b) of R.A. 6735 requires that "[a] petition for an initiativeon the 1987 Constitution
must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative
district must be represented by at least three per centum (3%) of the registered voters therein." On the other hand, Section
5(c)
2
of the same law requires that the petition should state, among others, the proposition
3
or the "contents or text of the
proposed law sought to be enacted, approved or rejected, amended or repealed." If we were to apply Section 5(c) to an initiative
to amend the Constitution, as petitioners submit, the petition for initiative signed by the required number of voters should
incorporate therein a text of the proposed changes to the Constitution. However, such requirement was not followed in the case
at bar.
During the oral arguments, petitioner Lambino admitted that they printed a mere 100,000 copies of the text of the proposed
changes to the Constitution. According to him, these were subsequently distributed to their agents all over the country, for
attachment to the sheets of paper on which the signatures were to be affixed. Upon being asked, however, if he in fact knew
whether the text was actually attached to the signature sheets which were distributed for signing, he said that he merely
assumed that they were. In other words, he could not tell the Court for certain whether their representatives complied with this
requirement.
The petition filed with the COMELEC, as well as that which was shown to this Court, indubitably establish that the full text of the
proposed changes was not attached to the signature sheets. All that the signature sheets contained was the general proposition
and abstract, which falls short of the full text requirement of R.A. 6735.
The necessity of setting forth the text of the proposed constitutional changes in the petition for initiative to be signed by the
people cannot be seriously disputed. To begin with, Article XVII, Section 2 of the Constitution unequivocally states that
"[a]mendments 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." Evidently, for the people to propose amendments to the Constitution, they
must, in the first instance, know exactly what they are proposing. It is not enough that they merely possess a general idea of the
proposed changes, as the Constitution speaks of a "direct" proposal by the people.
Although the framers of the Constitution left the matter of implementing the constitutional right of initiative to Congress, it might
be noted that they themselves reasonably assumed that the draft of the proposed constitutional amendments would be shown to
the people during the process of signature gathering. Thus
MR. RODRIGO. Section 2 of the complete committee report provides: "upon petition of at least 10 percent of the
registered voters." How will we determine that 10 percent has been achieved? How will the voters manifest their desire, is
it by signature?
MR. SUAREZ. Yes, by signatures.
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.
4
It may thus be logically assumed that even without Section 5(c) of R.A. 6735, the full text of the proposed changes must
necessarily be stated in or attached to the initiative petition. The signatories to the petition must be given an opportunity to fully
comprehend the meaning and effect of the proposed changes to enable them to make a free, intelligent and well-informed choice
on the matter.
Needless to say, the requirement of setting forth the complete text of the proposed changes in the petition for initiative is a
safeguard against fraud and deception. If the whole text of the proposed changes is contained in or attached to the petition,
intercalations and riders may be duly avoided. Only then can we be assured that the proposed changes are truly of the people
and that the signatories have been fully apprised of its implications.
If a statutory provision is essential to guard against fraud, corruption or deception in the initiative and referendum process, such
provision must be viewed as an indispensable requirement and failure to substantially comply therewith is fatal.
5
The failure of
petitioners in this case to comply with the full text requirement resultantly rendered their petition for initiative fatally defective.
The petition for initiative is likewise irretrievably infirm because it violates the one subject rule under Section 10(a) of R.A. 6735:
SEC. 10. Prohibited Measures.The following cannot be the subject of an initiative or referendum petition:
(a) No petition embracing more than one subject shall be submitted to the electorate; x x x
The one subject rule, as relating to an initiative to amend the Constitution, has the same object and purpose as the one subject-
one bill rule embodied in Article VI, Section 26(1)
6
of the Constitution.
7
To elaborate, the one subject-one bill rule was designed to
do away with the practice of inserting two or more unrelated provisions in one bill, so that those favoring one provision would be
compelled to adopt the others. By this process of log-rolling, the adoption of both provisions could be accomplished and ensured,
when neither, if standing alone, could succeed on its own merits.
As applied to the initiative process, the one subject rule is essentially designed to prevent surprise and fraud on the electorate. It
is meant to safeguard the integrity of the initiative process by ensuring that no unrelated riders are concealed within the terms of
the proposed amendment. This in turn guarantees that the signatories are fully aware of the nature, scope and purpose of the
proposed amendment.
Petitioners insist that the proposed changes embodied in their petition for initiative relate only to one subject matter, that is the
shift from presidential to a parliamentary system of government. According to petitioners, all of the other proposed changes are
merely incidental to this main proposal and are reasonably germane and necessary thereto.
8
An examination of the text of the
proposed changes reveals, however, that this is not the case.
The proposed changes to the Constitution cover other subjects that are beyond the main proposal espoused by the petitioners.
Apart from a shift from the presidential to a parliamentary form of government, the proposed changes include the abolition of one
House of Congress,
9
and the convening of a constituent assembly to propose additional amendments to the Constitution.
10
Also
included within its terms is an omnibus declaration that those constitutional provisions under Articles VI and VII, which are
inconsistent with the unicameral-parliamentary form of government, shall be deemed amended to conform thereto.
It is not difficult to see that while the proposed changes appear to relate only to a shift in the form of government, it actually seeks
to affect other subjects that are not reasonably germane to the constitutional alteration that is purportedly sought. For one, a shift
to a parliamentary system of government does not necessarily result in the adoption of a unicameral legislature. A parliamentary
system can exist in many different "hybrid" forms of government, which may or may not embrace unicameralism.
11
In other
words, the shift from presidential to parliamentary structure and from a bicameral to a unicameral legislature is neither the cause
nor effect of the other.
I also fail to see the relation of convening a constituent assembly with the proposed change in our system of government. As a
subject matter, the convening of a constituent assembly to amend the Constitution presents a range of issues that is far removed
from the subject of a shift in government. Besides, the constituent assembly is supposed to convene and propose amendments
to the Constitution after the proposed change in the system of government has already taken place. This only goes to show that
the convening of the constituent assembly is not necessary to effectuate a change to a parliamentary system of government.
The omnibus statement that all provisions under Articles VI and VII which are inconsistent with a unicameral-parliamentary
system of government shall be deemed amended is equally bothersome. The statement does not specify what these
inconsistencies and amendments may be, such that everyone is left to guess the provisions that could eventually be affected by
the proposed changes. The subject and scope of these automatic amendments cannot even be spelled out with certainty. There
is thus no reasonable measure of its impact on the other constitutional provisions.
The foregoing proposed changes cannot be the subject of a peoples initiative under Section 2, Article XVII of the Constitution.
Taken together, the proposed changes indicate that the intendment is not simply to effect substantial amendments to the
Constitution, but a revision thereof. The distinction between an amendment and revision was explained by Dean Vicente G.
Sinco, as follows:
"Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important
provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the
original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all
the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document
should be replaced with an entirely new one.
The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The
intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that
possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed
essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading
in their effect."
12
The foregoing traditional exposition of the difference between amendment and revision has indeed guided us throughout our
constitutional history. However, the distinction between the two terms is not, to my mind, as significant in the context of our past
constitutions, as it should be now under the 1987 Constitution. The reason for this is apparent. Under our past constitutions, it
was Congress alone, acting either as a constituent assembly or by calling out a constitutional convention, that exercised authority
to either amend or revise the Constitution through the procedures therein described. Although the distinction between the two
terms was theoretically recognized under both the 1935 and 1973 Constitutions, the need to highlight the difference was not as
material because it was only Congress that could effect constitutional changes by choosing between the two modalities.
However, it is different now under the 1987 Constitution. Apart from providing for the two modes of either Congress constituting
itself as a constituent assembly or calling out for a constitutional convention, a third mode was introduced for proposing changes
to the Constitution. This mode refers to the peoples right to propose amendments to the fundamental law through the filing of a
petition for initiative.
Otherwise stated, our experience of what constitutes amendment or revision under the past constitutions is not determinative of
what the two terms mean now, as related to the exercise of the right to propose either amendments or revision. The changes
introduced to both the Constitutions of 1935 and 1973 could have indeed been deemed an amendment or revision, but the
authority for effecting either would never have been questioned since the same belonged solely to Congress. In contrast,
the 1987 Constitution clearly limits the right of the people to directly propose constitutional changes to amendments only. We
must consequently not be swayed by examples of constitutional changes effected prior to the present fundamental law, in
determining whether such changes are revisory or amendatory in nature.
In this regard, it should be noted that the distinction laid down by Justice Felix Q. Antonio in J avellana v. Executive
Secretary
13
related to the procedure to be followed in ratifying a completely new charter proposed by a constitutional convention.
The authority or right of the constitutional convention itself to effect such a revision was not put in issue in that case. As far as
determining what constitutes "amendments" for the purpose of a peoples initiative, therefore, we have neither relevant precedent
nor prior experience. We must thus confine ourselves to Dean Sincos basic articulation of the two terms.
It is clear from Dean Sincos explanation that a revision may either be of the whole or only part of the Constitution. The part need
not be a substantial part as a change may qualify as a revision even if it only involves some of the important provisions. For as
long as the intention and plan to be carried out contemplate a consideration of all the provisions of the Constitution "to determine
which should be altered or suppressed, or whether the whole document should be replaced with an entirely new one," the
proposed change may be deemed a revision and not merely an amendment.
Thus, it is not by the sheer number alone of the proposed changes that the same may be considered as either an amendment or
revision. In so determining, another overriding factor is the "original intention and plan authorized to be carried out" by the
proposed changes. If the same relates to a re-examination of the entire document to see which provisions remain relevant or if it
has far-reaching effects on the entire document, then the same constitutes a revision and not a mere amendment of the
Constitution.
From the foregoing, it is readily apparent that a combination of the quantitative and qualitative test is necessary in assessing
what may be considered as an amendment or revision. It is not enough that we focus simply on the physical scope of the
proposed changes, but also consider what it means in relation to the entire document. No clear demarcation line can be drawn to
distinguish the two terms and each circumstance must be judged on the basis of its own peculiar conditions. The determination
lies in assessing the impact that the proposed changes may have on the entire instrument, and not simply on an arithmetical
appraisal of the specific provisions which it seeks to affect.
In McFadden v. J ordan,
14
the California Supreme Court laid down the groundwork for the combination of quantitative and
qualitative assessment of proposed constitutional changes, in order to determine whether the same is revisory or merely
amendatory. In that case, the McFadden court found the proposed changes extensive since at least 15 of the 25 articles
contained in the California Constitution would either be repealed in their entirety or substantially altered, and four new topics
would be introduced. However, it went on to consider the qualitative effects that the proposed initiative measure would have on
Californias basic plan of government. It observed that the proposal would alter the checks and balances inherent in such
plan, by delegating far-reaching and mixed powers to an independent commission created under the proposed measure.
Consequently, the proposal inMcFadden was not only deemed as broad and numerous in physical scope, but was also held as
having a substantive effect on the fundamental governmental plan of the State of California.
The dual aspect of the amendment/revision analysis was reiterated by the California Supreme Court in Raven v.
Deukmeijan.
15
Proposition 115, as the initiative in that case was called, would vest in the United States Supreme Court all
judicial interpretative powers of the California courts over fundamental criminal defense rights in that state. It was observed that
although quantitatively, the proposition did "not seem so extensive as to change directly the substantial entirety of the
Constitution by the deletion or alteration of numerous existing provisions," the same, nonetheless, "would substantially alter the
substance and integrity of the state Constitution as a document of independent force and effect." Quoting Amador Valley J oint
Union High School District v. State Board of Equalization,
16
the Raven court said:
". . . apart from a measure effecting widespread deletions, additions and amendments involving many constitutional
articles, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision also[A]n enactment which purported to vest all judicial power in the
Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of
existing articles or sections affected by such change." (Underscoring supplied and citations omitted)
Thus, in resolving the amendment/revision issue, the California Court examines both the quantitative and qualitative effects of a
proposed measure on its constitutional scheme. Substantial changes in either respect could amount to a revision.
17
I am persuaded that we can approach the present issue in the same manner. The experience of the courts in California is not far
removed from the standards expounded on by Dean Sinco when he set out to differentiate between amendment and revision. It
is actually consistent, not only with our traditional concept of the two terms, but also with the mindset of our constitutional framers
when they referred to the disquisition of Justice Antonio inJ avellana.
18
We must thus consider whether the proposed changes in
this case affect our Constitution in both its substantial physical entirety and in its basic plan of government.
The question posed is: do the proposed changes, regardless of whether these are simple or substantial, amount to a
revision as to be excluded from the peoples right to directly propose amendments to the fundamental law?
As indicated earlier, we may apply the quantitative/qualitative test in determining the nature of the proposed changes. These
tests are consistent with Dean Sincos traditional concept of amendment and revision when he explains that, quantitatively,
revision "may result in the rewriting either of the whole constitution, or the greater part of it, or perhaps only some of its
provisions." In any case, he continues, "the factor that characterizes it as an act of revision is the original intention and plan
authorized to be carried out." Unmistakably, the latter statement refers to the qualitative effect of the proposed changes.
It may thus be conceded that, quantitatively, the changes espoused by the proponents in this case will affect only two (2) out of
the eighteen (18) articles of the 1987 Constitution, namely, Article VI (Legislative Department) and Article VII (Executive
Department), as well as provisions that will ensure the smooth transition from a presidential-bicameral system to a parliamentary-
unicameral structure of government. The quantitative effect of the proposed changes is neither broad nor extensive and will not
affect the substantial entirety of the 1987 Constitution.
However, it is my opinion that the proposed changes will have serious qualitative consequences on the Constitution. The
initiative petition, if successful, will undoubtedly alter, not only our basic governmental plan, but also redefine our rights as
citizens in relation to government. The proposed changes will set into motion a ripple effect that will strike at the very foundation
of our basic constitutional plan. It is therefore an impermissible constitutional revision that may not be effected through a peoples
initiative.
Petitioners main proposal pertains to the shifting of our form of government from the presidential to the parliamentary system. An
examination of their proposal reveals that there will be a fusion of the executive and legislative departments into one parliament
that will be elected on the basis of proportional representation. No term limits are set for the members of parliament except for
those elected under the party-list system whose terms and number shall be provided by law. There will be a President who shall
be the head of state, but the head of government is the Prime Minister. The latter and his cabinet shall be elected from among
the members of parliament and shall be responsible to parliament for the program of government.
The preceding proposal indicates that, under the proposed system, the executive and legislature shall be one and the same,
such that parliament will be the paramount governing institution. What this implies is that there will be no separation between the
law-making and enforcement powers of the state, that are traditionally delineated between the executive and legislature in a
presidential form of government. Necessarily, the checks and balances inherent in the fundamental plan of our U.S.-style
presidential system will be eliminated. The workings of government shall instead be controlled by the internal political dynamics
prevailing in the parliament.
Our present governmental system is built on the separation of powers among the three branches of government. The legislature
is generally limited to the enactment of laws, the executive to the enforcement of laws and the judiciary to the application of laws.
This separation is intended to prevent a concentration of authority in one person or group that might lead to an irreversible error
or abuse in its exercise to the detriment of our republican institutions. In the words of Justice Laurel, the doctrine of separation of
powers is intended to secure action, to forestall overaction, to prevent despotism and obtain efficiency.
19
In the proposed parliamentary system, there is an obvious lack of formal institutional checks on the legislative and executive
powers of the state, since both the Prime Minister and the members of his cabinet are drawn from parliament. There are no
effective limits to what the Prime Minister and parliament can do, except the will of the parliamentary majority. This goes against
the central principle of our present constitutional scheme that distributes the powers of government and provides for
counteraction among the three branches. Although both the presidential and parliamentary systems are theoretically consistent
with constitutional democracy, the underlying tenets and resulting governmental framework are nonetheless radically different.
Consequently, the shift from presidential to parliamentary form of government cannot be regarded as anything but a drastic
change. It will require a total overhaul of our governmental structure and involve a re-orientation in the cardinal doctrines that
govern our constitutional set-up. As explained by Fr. Joaquin Bernas, S.J., 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.
20
It cannot, by any
standard, be deemed as a mere constitutional amendment.
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.
21
(Underscoring supplied)
The inclusion of a proposal to convene a constituent assembly likewise shows the intention of the proponents to effect even more
far-reaching changes in our fundamental law. If the original intent were to simply shift the form of government to the
parliamentary system, then there would have been no need for the calling out of a constituent assembly to propose further
amendments to the Constitution. It should be noted that, once convened, a constituent assembly can do away and replace any
constitutional provision which may not even have a bearing on the shift to a parliamentary system of government. The inclusion
of such a proposal reveals the proponents plan to consider all provisions of the constitution, either to determine which of its
provisions should be altered or suppressed or whether the whole document should be replaced with an entirely new one.
Consequently, it is not true that only Articles VI and VII are covered by the alleged peoples initiative. The proposal to convene a
constituent assembly, which by its terms is mandatory, will practically jeopardize the future of the entire Constitution and place
it on shaky grounds. The plan of the proponents, as reflected in their proposed changes, goes beyond the shifting of government
from the presidential to the parliamentary system. Indeed, it could even extend to the "fundamental nature of our state as a
democratic and republican state."
To say that the proposed changes will affect only the constitution of government is therefore a fallacy. To repeat, the combined
effect of the proposed changes to Articles VI and VII and those pertaining to the Transitory Provisions under Article XVIII
indubitably establish the intent and plan of the proponents to possibly affect even the constitutions of liberty and sovereignty.
Indeed, no valid reason exists for authorizing further amendments or revisions to the Constitution if the intention of the proposed
changes is truly what it purports to be.
There is no question here that only amendments to the Constitution may be undertaken through a peoples initiative and not a
revision, as textually reflected in the Constitution itself. This conclusion is inevitable especially from a comparative examination of
Section 2 in relation to Sections 1 and 4 of Article XVII, which state:
SECTION 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.
SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
x x x x
SECTION 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the
approval of such amendment or revision.
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission of Elections of
the sufficiency of the petition. (Underscoring supplied)
It is clear that the right of the people to directly propose changes to the Constitution is limited to amendments and does not
include a revision thereof. Otherwise, it would have been unnecessary to provide for Section 2 to distinguish its scope from the
rights vested in Congress under Section 1. The latter lucidly states that Congress may propose both amendments and a revision
of the Constitution by either convening a constituent assembly or calling for a constitutional convention. Section 2, on the other
hand, textually commits to the people the right to propose only amendments by direct action.
To hold, therefore, that Section 2 allows substantial amendments amounting to revision obliterates the clear distinction
in scope between Sections 1 and 2. The intention, as may be seen from a cursory perusal of the above provisions, is to
provide differing fields of application for the three modes of effecting changes to the Constitution. We need not even delve into
the intent of the constitutional framers to see that the distinction in scope is definitely marked. We should thus apply these
provisions with a discerning regard for this distinction. Again, McFadden
22
is instructive:
". . . The differentiation required is not merely between two words; more accurately it is between two procedures and
between their respective fields of application. Each procedure, if we follow elementary principles of statutory construction,
must be understood to have a substantial field of application, not to be x x x a mere alternative procedure in the same
field. Each of the two words, then, must be understood to denote, respectively, not only a procedure but also a field of
application appropriate to its procedure. The people of this state have spoken; they made it clear when they adopted
article XVIII and made amendment relatively simple but provided the formidable bulwark of a constitutional convention as
a protection against improvident or hasty (or any other) revision, that they understood that there was a real difference
between amendment and revision. We find nothing whatsoever in the language of the initiative amendment of 1911 (art.
IV, 1) to effect a breaking down of that difference. On the contrary, the distinction appears to be x x x scrupulously
preserved by the express declaration in the amendment x x x that the power to propose and vote on "amendments to the
Constitution" is reserved directly to the people in initiative proceedings, while leaving unmentioned the power and the
procedure relative to constitutional revision, which revisional power and procedure, it will be remembered, had already
been specifically treated in section 2 of article XVIII.Intervenors contention--that any change less than a total one is but
amendatory--would reduce to the rubble of absurdity the bulwark so carefully erected and preserved. Each situation
involving the question of amendment, as contrasted with revision, of the Constitution must, we think, be resolved upon its
own facts."
Thus, our people too have spoken when they overwhelmingly ratified the 1987 Constitution, with the provisions on amendments
and revisions under Article XVII. The voice and will of our people cannot be any clearer when they limited peoples initiative to
mere amendments of the fundamental law and excluded revisions in its scope. In this regard, the task of the Court is to give
effect to the peoples voice, as expressed unequivocally through the Constitution.
Article XVII on amendments and revisions is called a "constitution of sovereignty" because it defines the constitutional meaning
of "sovereignty of the people." It is through these provisions that the sovereign people have allowed the expression of their
sovereign will and have canalized their powers which would otherwise be plenary. By approving these provisions, the sovereign
people have decided to limit themselves and future generations in the exercise of their sovereign power.
23
They are thus bound
by the constitution and are powerless, whatever their numbers, to change or thwart its mandates, except through the means
prescribed by the Constitution itself.
24
It is thus misplaced to argue that the people may propose revisions to the Constitution through peoples initiative because their
representatives, whose power is merely delegated, may do so. While Section 1 of Article XVII may be considered as a
provision delegating the sovereign powers of amendment and revision to Congress, Section 2, in contrast, is a self-
limitation on that sovereign power. In the words of Cooley:
x x x Although by their constitutions the people have delegated the exercise of sovereign powers to the several
departments, they have not thereby divested themselves of the sovereignty. They retain in their own hands, so far as
they have thought it needful to do so, a power to control the governments they create, and the three departments are
responsible to and subject to be ordered, directed, changed or abolished by them. But this control and direction must be
exercised in the legitimate mode previously agreed upon. The voice of the people, acting in their sovereign capacity, can
be of legal force only when expressed at the times and under the conditions which they themselves have prescribed and
pointed out by the Constitution, or which, consistently with the Constitution, have been prescribed and pointed out for
them by statute; and if by any portion of the people, however large, an attempt should be made to interfere with the
regular working of the agencies of government at any other time or in any other mode than as allowed by existing law,
either constitutional or statutory, it would be revolutionary in character, and must be resisted and repressed by the
officers who, for the time being, represent legitimate government.
25
(Underscoring supplied)
Consequently, there is here no case of "the spring rising above its source." Nor is it one where the peoples sovereign power has
been relegated to a lesser plane than that of Congress. In choosing to exercise self-limitation, there is no absence or lack of even
a fraction of the sovereign power of the people since self-limitation itself is an expression of that sovereign power. The
people have chosen to delegate and limit their sovereign power by virtue of the Constitution and are bound by the parameters
that they themselves have ordained. Otherwise, if the people choose to defy their self-imposed constitutional restraints, we will
be faced with a revolutionary situation.
26
It has repeatedly been emphasized that ours is a democratic and republican state.
27
Even as we affirm, however, that aspect of
direct democracy, we should not forget that, first and foremost, we are a constitutional democracy. To uphold direct democracy
at the expense of the fundamental law is to sanction, not a constitutional, but an extra-constitutional recourse. This is clearly
beyond the powers of the Court who, by sovereign mandate, is the guardian and keeper of the Constitution.
IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. No. 174153.
CONSUELO YNARES-SANTIAGO
Associate Justice
____________________
EN BANC
G.R. NO. 174153
RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH 6,327,952 REGISTERED VOTERS,petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-intervenors,
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, petitioners-intervenors,
SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) AND VICTORINO F. BALAIS,petitioners-
intervenors,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR.,
SUSAN V. OPLE AND CARLOS P. MEDINA, JR., oppositors-intervenors,
ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor,
ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor,
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FROUM, MIGRANTE, GABRIELA,
GABRIELA WOMENS PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA,
DR. DARBY SANTIAGO, AND DR. REGINALD PAMUGAS, oppositors-intervenors,
LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA HONTIVEROS-BARAQUEL, oppositors-intervenors,
LUWALHATI ANTONINO, oppositor-intervenor,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS AND AMADO GAT
INCION, oppositors-intervenors,
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND SENATORS SERGIO R. OSMENA III, JAMBY A.S.
MADRIGAL, LUISA P. EJERCIRO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM, AND PANFILO M.
LACSON, oppositors-intervenors,
JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG PILIPINO, oppositors-intervenors,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositors-intervenors,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT, ANTONIO L. SALVADOR AND RANDALL C.
TABAYOYONG, oppostors-intervenors,
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, MANUEL VILLAR, JR., oppositor-intervenor;
G.R. NO. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A. Q. SAGUISAG, petitioners,
vs.
COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BENJAMIN S. ABALOS, SR. AND COMMISSIONERS
RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR. ROMEO A. BRAWNER, RENE V. SARMIENTO AND JOHN
DOE AND PETER DOE, respondents.
x ---------------------------------------------------------------------------------------- x
CONCURRING OPINION
SANDOVALGUTIERREZ, J .:
Vox populi vox Dei -- the voice of the people is the voice of God. Caution should be exercised in choosing ones battlecry, lest it
does more harm than good to ones cause. In its original context, the complete version of this Latin phrase means exactly the
opposite of what it is frequently taken to mean. It originated from a holy man, the monk Alcuin, who advised Charlemagne, "nec
audiendi qui solent dicere vox populi vox Dei quum tumultuositas vulgi semper insaniae proxima sit," meaning, "And those
people should not be listened to who keep on saying, The voice of the people is the voice of God, since the
riotousness of the crowd is always very close to madness."
1
Perhaps, it is by providence that the true meaning of the Latin
phrase is revealed upon petitioners and their allies that they may reflect upon the sincerity and authenticity of their "peoples
initiative."
History has been a witness to countless iniquities committed in the name of God. Wars were waged, despotism tolerated and
oppressions justified all these transpired as man boasted of Gods imprimatur. Today, petitioners and their allies hum the same
rallying call, convincing this Court that the peoples initiative is the "voice of the people" and, therefore, the "voice of God." After
a thorough consideration of the petitions, I have come to realize that man, with his ingenuity and arrogance, has perfected the
craft of imitating the voice of God. It is against this kind of genius that the Court must guard itself.
The facts of the case are undisputed.
In 1996, the Movement for Peoples Initiative sought to exercise the power of initiative under Section 2, Article XVII of the
Constitution which reads:
Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter,
The Congress shall provide for the implementation of the exercise of this right.
The exercise was thwarted by a petition for prohibition filed with this Court by Senator Miriam Defensor Santiago, et al., entitled
"Miriam Defensor Santiago, Alexander Padilla and Maria Isabel Ongpin, petitioners, v. Commission on Elections (COMELEC),
Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa, in their capacities as founding members of the Peoples Initiative for
Reforms, Modernization and Action (PIRMA), respondents."
2
The case was docketed as G.R. No. 127325. On March 19, 1997,
this Court rendered its Decision in favor of petitioners, holding that Republic Act No. 6735 (R.A. No. 6735), An Act Providing for a
System of Initiative and Referendum and Appropriating Funds Therefor, is "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned." A majority of eight (8)
Justices fully concurred with this ruling, while five (5) subscribed to the opposite view. One (1) opined that there is no need to rule
on the adequacy of R.A. No. 6735.
On motion for reconsideration, two (2) of the eight (8) Justices reconsidered their positions. One (1) filed an inhibition and the
other one (1) joined the minority opinion. As a consequence, of the thirteen (13) Justices who participated in the deliberation, six
(6) voted in favor of the majority opinion, while the other six (6) voted in favor of the minority opinion.
3
A few months thereafter, or on September 23, 1997, the Court dismissed a similar case, entitled Peoples Initiative for Reform,
Modernization and Action (PIRMA) v. Commission on Elections
4
on the ground that the COMELEC did not commit grave abuse
of discretion when it dismissed PIRMAs Petition for Initiative to Propose Amendments to the Constitution "it appearing that that
it only complied with the dispositions in the Decision of the Court in G.R. no. 127325 (Santiago v. COMELEC)
promulgated on March 19, 1997, and its Resolution of June 10, 1997." Seven (7) Justices voted that there was no need to
re-examine its ruling, as regards the issue of the sufficiency of R.A. No. 6735. Another Justice concurred, but on the different
premise that the case at bar is not the proper vehicle for such re-examination. Five (5) Justice opined otherwise.
This time, another group known as Sigaw ng Bayan, in coordination with the Union of Local Authorities of the Philippines (ULAP),
have gathered signatures in support of the proposed amendments to the Constitution, which entail a change in the form of
government from bicameral-presidential to unicameral-parliamentary, thus:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:
Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed
of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and
cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable,
contiguous, compact and adjacent territory, and each province must have at least one member.
(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on the day
of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of
his district for a term of five years without limitation as to the number thereof, except those under the party-list system
which shall be provided for by law and whose number shall be equal to twenty per centum of the total membership
coming from the parliamentary districts.
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows:
Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime
Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of
Parliament from among themselves. He shall be responsible to the Parliament for the program of government.
C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-
Parliamentary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions," which
shall read, as follows:
Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the
thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a
vote of two thirds of all the members of the interim parliament.
(2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent
Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of
both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and
responsibilities of Prime Minister under Article VII as amended.
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
seriatium 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; provided, however, that any and all
references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to
read "Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of
Parliament" and any and all references to the "President" and/or "Acting President" shall be changed to read "Prime
Minister."
Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections
1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby be amended and Sections 7, 8, 9, 10, 11 and 12
which are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended
so as to conform to a unicameral Parliamentary System of government; provided, however, that any and all references
therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of the House of
Representatives" shall be changed to read as "Member(s) of Parliament" and any and all references to the "President"
and/or "Acting President" shall be changed to read "Prime Minister."
Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue
until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the
incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who
are heads of executive departments.
(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June
2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the interim
Parliament and shall preside over its sessions for the election of the interim Prime Minister and until the Speaker shall
have been elected by a majority vote of all the members of the interim Parliament from among themselves.
(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June
2010.
(4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a
strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the
interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim
Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be
delegated to him by the incumbent President."
(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. The duty elected Prime Minister shall continue to
exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term
of the incumbent President and Vice President.
Sigaw ng Bayan prepared signature sheets, and written on its upper right hand portion is the abstract of the proposed
amendments, quoted as follows:
Abstract: Do you approve of the amendment of Article 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?
On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado, herein petitioners, filed with the COMELEC aPetition for
Initiative to Amend the Constitution.
5
Five (5) days thereafter, they filed an Amended Petition alleging that they are filing the
petition in their own behalf and together with some 6.3 million registered voters who have affixed their signatures on the
signature sheets attached thereto. They claimed that the signatures of registered voters appearing on the signature sheets,
constituting at least twelve per cent (12%) of all registered voters in the country, wherein each legislative district is represented
by at least three per cent (3%) of all the registered voters, were verified by their respective city or municipal election officers.
Several organizations opposed the petition.
6
In a Resolution dated August 31, 2006, the COMELEC denied due course to the petition, citing as basis this Courts ruling
in Santiago, permanently enjoining it "from entertaining or taking cognizance of any petition for initiative on amendments
to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the
system."
Hence, the present petition for certiorari and mandamus praying that this Court set aside the COMELEC Resolution and direct
the latter tocomply with Section 4, Article XVII of the Constitution, which provides:
Sec. 4 x x x
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of
the sufficiency of the petition.
I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and grant the petition of Mar-len Abigail Binay, et al. in G.R.
No. 174299. Here, petitioners pray that the COMELEC Chairman and Commissioners be required to show why they should not
be punished for contempt
7
of court for disregarding the permanent injunction issued by this Court in Santiago.
I
Respondent COMELEC did not act with grave abuse of discretion
Without necessarily brushing aside the other important issues, I believe the resolution of the present petition hinges on this
singular issue -- did the COMELEC commit grave abuse of discretion when it denied Lambino, et al.s petition for initiative to
amend the Constitution on the basis of this Courts Decision in Santiago v. COMELEC?
In other words, regardless of how the other remaining issues are resolved, still, the ultimate yardstick is the attendance of "grave
abuse of discretion" on the part of the COMELEC.
Jurisprudence teaches that an act of a court or tribunal may only be considered as committed in grave abuse of discretion when
the same was performed in a capricious or whimsical exercise of judgment. The abuse of discretion must be
so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason
of passion or personal hostility.
8
The Resolution of respondent COMELEC denying due course to the petition for initiative on the basis of a case (Santiago)
decided by this Court cannot, in any way, be characterized as "capricious or whimsical," "patent and gross," or "arbitrary and
despotic." On the contrary, it was the most prudent course to take. It must be stressed that in Santiago, this Court permanently
enjoins respondent COMELEC "from entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted." It being a fact that Congress has not enacted a sufficient
law, respondent COMELEC has no alternative but to adhere to Santiago. Otherwise, it is vulnerable to a citation for contempt. As
succinctly stated by Chief Justice Artemio V. Panganiban (then Associate Justice) in his Separate Opinion in the subsequent
case of PIRMA vs. COMELEC:
9
x x x I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said decisions ratio decidendi.
Respondent Comelec was directly enjoined by the highest Court of the land. It had no choice but to obey. Its obedience
cannot constitute grave abuse of discretion. Refusal to act on the PIRMA petition was the only recourse open to the
Comelec. Any other mode of action would have constituted defiance of the Court and would have been struck down as
grave abuse of discretion and contumacious disregard of this Courts supremacy as the final arbiter of justiciable
controversies.
It need not be emphasized that in our judicial hierarchy, this Court reigns supreme. All courts, tribunals and administrative bodies
exercising quasi-judicial functions are obliged to conform to its pronouncements. It has the last word on what the law is; it is
the final arbiter of any justifiable controversy. In other words, there is only one Supreme Court from whose decisions all
other courts should take their bearings.
10
As a warning to lower court judges who would not adhere to its rulings, this Court,
in People v. Santos,
11
held:
Now, if a judge of a lower Court feels, in the fulfillment of his mission of deciding cases, that the application of a doctrine
promulgated by this Superiority is against his way of reasoning, or against his conscience, he may state his opinion on
the matter, but rather than disposing of the case in accordance with his personal views he must first think that it is his
duty to apply the law as interpreted by the Highest Court of the Land, and that any deviation from a principle laid down by
the latter would unavoidably cause, as a sequel, unnecessary inconveniences, delays and expenses to the litigants. And
if despite of what is here said, a Judge still believes that he cannot follow Our rulings, then he has no other alternative
than to place himself in the position that he could properly avoid the duty of having to render judgment on the case
concerned (Art. 9, C.C.), and he has only one legal way to do that.
Clearly, respondent COMELEC did not gravely abuse its discretion in dismissing the petition of Lambino, et al. for it merely
followed this Courts ruling in Santiago.
Significantly, in PIRMA vs. COMELEC,
12
a unanimous Court implicitly recognized that its ruling in Santiago is the established
doctrine and that the COMELEC did not commit grave abuse of discretion in invoking it, thus:
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 of this
Court in G.R. No. 127325 promulgated on March 19, 1997, and its resolution on June 10, 1997.
Indeed, I cannot characterize as a "grave abuse of discretion" the COMELECs obedience and respect to the pronouncement of
this Court in Santiago.
II
The doctrine of stare decisis
bars the re-examination of Santiago
It cannot be denied that in Santiago, a majority of the members of this Court or eight (8) Justices (as against five (5) Justices)
concurred in declaring R.A. No. 6735 an insufficient law. When the motion for reconsideration was denied via an equally-divided
Court or a 6-6 vote, it does not mean that the Decision was overturned. It only shows that the opposite view fails to muster
enough votes to modify or reverse the majority ruling. Therefore, the original Decision was upheld.
13
In Ortigas and Company
Limited Partnership vs. Velasco,
14
this Court ruled that the denial of a motion or reconsideration signifies that the ground
relied upon have been found, upon due deliberation, to be without merit, as not being of sufficient weight to warrant a
modification of the judgment or final order.
With Santiago being the only impediment to the instant petition for initiative, petitioners persistently stress that the doctrine
of stare decisis does not bar its re-examination.
I am not convinced. The maxim stare decisis et non quieta movere translates "stand by the decisions and disturb not what is
settled."
15
As used in our jurisprudence, it means that "once this Court has laid down a principle of law as applicable to a
certain state of facts, it would adhere to that principle and apply it to all future cases in which the facts are substantially
the same as in the earlier controversy."
16
There is considerable literature about whether this doctrine of stare decisis is a good or bad one, but the doctrine is usually
justified by arguments which focus on the desirability of stability and certainty in the law and also by notions of justice and
fairness. Justice Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated:
It will not do to decide the same question one way between one set of litigants and the opposite way between another. If
a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to
decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a
defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of
resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to
precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration
of justice in the courts.
17
That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of
American philosopher William K. Frankena as to what constitutes injustice:
The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one
of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the
responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all
between the individuals concerned and their circumstances, he or they will be guilty as charged.
18
Although the doctrine of stare decisis does not prevent re-examining and, if need be, overruling prior decisions, "It is x x x a
fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered
anew, might be decided differently by the current justices. This policy x x x is based on the assumption that certainty,
predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to
regulate their conduct and enter into relationships with reasonable assurance of the governing rules of
law.
19
Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of which is roughly
proportional to a number of factors, including the age of the precedent, the nature and extent of public and private reliance
on it, and its consistency or inconsistency with other related rules of law. Here, petitioners failed to discharge their task.
Santiago v. COMELEC was decided by this Court on March 19, 1997 or more than nine (9) years ago. During that span of time,
the Filipino people, specifically the law practitioners, law professors, law students, the entire judiciary and litigants have
recognized this Courts Decision as a precedent. In fact, the Santiago doctrine was applied by this Court in the subsequent case
of PIRMA. Even the legislature has relied on said Decision, thus, several bills have been introduced in both Houses of Congress
to cure the deficiency. I cannot fathom why it should be overturned or set aside merely on the basis of the petition of Lambino, et
al. Indeed, this Courts conclusion inSantiago that R.A. No. 6735 is incomplete, inadequate or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is concerned remains a precedent and must be upheld.
III
The proposed constitutional changes constitute revisions and not mere amendments
Article XVII of the 1987 Constitution lays down the means for its amendment and revision. Thus:
Section 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.
Section 2. Amendments to this Constitution may likewise be directly proposed by the people throughinitiative upon a
petition of at least twelve per centum of the total number of registered votes, of which every legislative district must be
represented by at least three per centum of the registered voters therein. x x x. (Emphasis supplied)
At the outset, it must be underscored that initiative and referendum, as means by which the people can directly propose
changes to the Constitution, were not provided for in the 1935 and 1973 Constitutions. Thus, under these two (2) Constitutions,
there was no demand to draw the distinction between an amendment and a revision, both being governed by a uniform process.
This is not so under our present Constitution. The distinction between an amendment and a revision becomes crucial because
only amendments are allowed under the system of peoples initiative. Revisions are within the exclusive domain of Congress,
upon a vote of three-fourths of all its members, or of a Constitutional Convention.
The deliberations of the 1986 Constitutional Commission is explicit that Section 2, Article XVII covers onlyamendments, thus:
The sponsor, Commissioner Suarez, is recognized.
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given us last
night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing
initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I
quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose amendments to this
Constitution thru initiative upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory
that this matter of initiative which came about because of the extraordinary developments this year, has to be separated
from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that
this system of initiative should be limited to amendments to the Constitution and should not extend to the
revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on
Amendment or Revision.
xxx xxx xxx
MR. MAAMBONG: Madam President, will the distinguished proponent of the amendment yield to a few questions?
MR. DAVIDE: With pleasure, Madam President.
MR. MAAMBONG: My first question, Commissioner Davides proposed amendment on line I 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.
20
Considering that the initiative on the Constitution only permits amendments, it is imperative to examine whether petitioners
proposed changes partake of the nature of amendments, not revisions.
The petition for initiative filed with the COMELEC by Lambino, et al. sought to amend the following provisions of the 1987
Constitution: Sections 1, 2, 3, 4, 5, 6, and 7 of Article VI (The Legislative Department); Sections 1, 2, 3 and 4 of Article VII (The
Executive Department). It further includes Article XVIII (Transitory Provisions) for the purpose of insuring an orderly transition
from the bicameral-presidential to a unicameral-parliamentary form of government.
Succinctly, the proposals envision a change in the form of government, from bicameral-presidential to unicameral-parliamentary;
conversion of the present Congress of the Philippines to an Interim National Assembly; change in the terms of Members of
Parliament; and the election of a Prime Minister who shall be vested with executive power.
Petitioners contend that the proposed changes are in the nature of amendments, hence, within the coverage of a "peoples
initiative."
I disagree.
The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was also a member of the 1986 Constitutional Commission,
characterized an amendment and a revision to the Constitution as follows:
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 document to determine how and to
what extent they should be altered.
21
Obviously, both "revision" and amendment" connote change; any distinction between the two must be based upon the degree of
change contemplated. In Kelly v. Laing,
22
the Supreme Court of Michigan made the following comparison of the two terms:
"Revision" and "amendment" have the common characteristics of working changes in the charter, and are sometimes
used in exactly the same sense but there is an essential difference between them.
"Revision" implies a reexamination of the whole law and a redraft without obligation to maintain the form,
scheme, or structure of the old. As applied to fundamental law, such as a constitution or charter, it suggests a
convention to examine the whole subject and to prepare and submit a new instrument whether the desired changes from
the old are few or many. Amendment implies continuance of the general plan and purpose of the law, with
corrections to better accomplish its purpose. Basically, revision suggests fundamental change, while amendment is a
correction of detail.
Although there are some authorities which indicate that a change in a citys form of government may be accomplished by a
process of "amendment," the cases which so hold seem to involve statutes which only distinguish between amendment and
totally new charters.
23
However, as in Maine law, where the statute authorizing the changes distinguishes between "charter
amendment" and "charter revision," it has been held that "(a) change in the form of government of a home rule city may be
made only by revision of the city charter, not by its amendment."
24
In summary, it would seem that any major change in governmental form and scheme would probably be interpreted as a
"revision" and should be achieved through the more thorough process of deliberation.
Although, at first glance, petitioners proposed changes appear to cover isolated and specific provisions only, however, upon
careful scrutiny, it becomes clear that the proposed changes will alter the very structure of our government and create
multifarious ramifications. In other words, the proposed changes will have a "domino effect" or, more appropriately, "ripple
effect" on other provisions of the Constitution.
At this juncture, it must be emphasized that the power reserved to the people to effect changes in the Constitution includes the
power to amend anysection in such a manner that the proposed change, if approved, would "be complete within itself, relate
to one subject and not substantially affect any other section or article of the Constitution or require further amendments
to the Constitution to accomplish its purpose."
25
This is clearly not the case here.
Firstly, a shift from a presidential to a parliamentary form of government affects the well-enshrined doctrine of separation of
powers of government, embodied in our Constitution, by providing for an Executive, Legislative and Judiciary Branches. In a
Parliamentary form of government, the Executive Branch is to a certain degree, dependent on the direct or indirect support of the
Parliament, as expressed through a "vote of confidence." To my mind, this doctrine of separation of powers is so
interwoven in the fabric of our Constitution, that any change affecting such doctrine must necessarily be a revision.
In McFadden vs. Jordan,
26
the California Supreme Court ruled as follows:
It is thus clear that 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 x x x. Consequently, if the scope of the
proposed initiative 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. x x x.
Secondly, the shift from a bicameral to a unicameral form of government is not a mere amendment, but is in actuality a revision,
as set forth in Adams v. Gunter
27
:
The proposal here to amend Section I 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 the 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.
Thirdly, the proposed changes, on their face, signify revisions rather than amendments, especially, with the inclusion of the
following "omnibus provision":
C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamnetary form of
government, there shall be a new Article XVIII, entitled "Transitory Provisions" which shall read, as follows:
x x x x x x x x x
Section 3. Upon the expiration of the term of the incumbent President and Vice-President, with the exceptions of Section
1,2,3 and 4 of Article VII of the 1987 Constitution which are hereby amended x x x x x x and all other Sections of Article
VII shall be retained and numbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent
with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral
Parliamentary system of government x x x x x x .
x x x x x x x x x
Section 4. (1) x x x
(3) Within forty-five days from ratification of these amendments, the Interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution, consistent with the principles of local autonomy, decentralization and a
strong bureaucracy.
The above provisions will necessarily result in a "ripple effect" on the other provisions of the Constitution to make them conform
to the qualities of unicameral-parliamentary form of government. With one sweeping stroke, these proposed
provisions automatically revise some provisions of the Constitution. In McFadden, the same practice was considered by the
Court to be in the nature of substantial revision, necessitating a constitutional convention. I quote the pertinent portion of its
ruling, thus:
There is in the measure itself, no attempt to enumerate the various and many articles and sections of our present
Constitution which would be affected, replaced or repealed. It purports only to add one new article but its framers found it
necessary to include the omnibus provision (subdivision (7) of section XII) that "If any section, subsection, sentence,
clause or phrase of the constitution is in conflict with any of the provisions of this article, such section, subsection,
sentence, clause, or phrase is to the extent of such conflict hereby repealed. x x x Consequently, if the scope of the
proposed intitiative measure now before us is so broad that if such measure become law a substantial revision of our
present state Constitution would be 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.
28
Undoubtedly, the changes proposed by the petitioners are not mere amendments which will only affect the Articles or Sections
sought to be changed. Rather, they are in the nature of revisions which will affect considerable portions of the Constitution
resulting in the alteration of our form of government. The proposed changes cannot be taken in isolation since these are
connected or "interlocked" with the other provisions of our Constitution. Accordingly, it has been held that: "If the changes
attempted are so sweeping that it is necessary to include the provisions interlocking them, then it is plain that the plan
would constitute a recasting of the whole Constitution and this, we think, it was intended to be accomplished only by a
convention under Section 2 which has not yet been disturbed."
29
I therefore conclude that since the proposed changes partake of the nature of a revision of the Constitution, then they cannot be
the subject of an initiative. On this matter, Father Bernas expressed this insight:
But why limit initiative and referendum to simple amendments? The answer, which one can easily glean from the rather
long deliberation on initiative and referendum in the 1986 Constitutional Commission, is practicality. In other words, who
is to formulate the revision or how is it to be formulated? Revision, as concretely being proposed now, is nothing
less than a rebuilding of the Philippine constitutional structure. Who were involved in formulating the structure?
What debates ensued? What records are there for future use in interpreting the provisions which may be found to be
unclear?
In a deliberative body like Congress or a Constitutional Convention, decisions are reached after much purifying debate.
And while the deliberations proceed, the public has the opportunity to get involved. It is only after the work of an
authorized body has been completed that it is presented to the electorate for final judgment. Careful debate is
important because the electorate tends to accept what is presented to it even sight unseen.
30
IV
R.A. No. 6735 is insufficient to implement the Peoples initiative
Section 2, Article XVII of the 1987 Constitution reads:
Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter,
The Congress shall provide for the implementation of the exercise of this right.
On its face, Section 2 is not a self-executory provision. This means that an enabling law is imperative for its implementation.
Thus, Congress enacted R.A. No. 6735 in order to breathe life into this constitutional provision. However, as previously narrated,
this Court struck the law in Santiago for being incomplete, inadequate, orwanting in essential terms and conditions insofar
as initiative on amendments to the Constitution is concerned.
The passage of time has done nothing to change the applicability of R.A. No. 6735. Congress neither amended it nor passed a
new law to supply its deficiencies.
Notwithstanding so, this Court is being persuaded to take a 360-degree turn, enumerating three (3) justifications why R.A. No.
6735 must be considered a sufficient law, thus:
1) The text of R.A. No. 6735 is replete with references to the right of people to initiate changes to the Constitution;
2) The legislative history of R.A. No. 6735 reveals the clear intent of the lawmakers to use it as instrument to
implement the peoples initiative; and
3) The sponsorship speeches by the authors of R.A. No. 6735 demonstrate the legislative intent to use it as
instrument to implement peoples initiative.
I regret to say that the foregoing justifications are wanting.
A thorough reading of R.A. No. 6735 leads to the conclusion that it covers only initiatives on national and local legislation. Its
references to initiatives on the Constitution are few, isolated and misplaced. Unlike in the initiatives on national and local
legislation, where R.A. No. 6735 provides a detailed, logical, and exhaustive enumeration on their implementation,
31
however, as
regards initiative on the Constitution, the law merely:
(a) mentions the word "Constitution" in Section 2;
32
(b) defines "initiative on the Constitution" and includes it in the enumeration of the three systems of initiative in Section
3;
33
(c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution may be approved or
rejected by the people;
34
(d) reiterates the constitutional requirements as to the number of voters who should sign the petition;
35
and
(e) provides the date for the effectivity of the approved proposition.
36
In other words, R.A. No. 6735 does not specify the procedure how initiative on the Constitution may be accomplished. This is not
the enabling law contemplated by the Constitution. As pointed out by oppositor-intervenor Alternative Law Groups Inc., since the
promulgation of the Decision in Santiago, various bills have been introduced in both Houses of Congress providing for
a complete and adequate process for peoples initiative, such as:
Names, signatures and addresses of petitioners who shall be registered voters;
A statement of the provision of the Constitution or any part thereof sought to be amended and the proposed
amendment;
The manner of initiation - in a congressional district through a petition by any individual, group, political party or coalition
with members in the congressional district;
The language used: the petition should be printed in English and translated in the local language;
Signature stations to be provided for;
Provisions pertaining to the need and manner of posting, that is, after the signatures shall have been verified by the
Commission, the verified signatures shall be posted for at least thirty days in the respective municipal and city halls
where the signatures were obtained;
Provisions pertaining to protests allowed any protest as to the authenticity of the signatures to be filed with the
COMELEC and decided within sixty (60) days from the filing of said protest.
None of the above necessary details is provided by R.A. No. 6735, thus, demonstrating its incompleteness and inadequacy.
V
Petitioners are not Proper Parties to
File the Petition for Initiative
VI
The Petition for Initiative Filed with the COMELEC Does not Comply with Section 2, Article XVII of the Constitution and
R.A. No. 6735
I shall discuss the above issues together since they are interrelated and inseparable. The determination of whether petitioners
are proper parties to file the petition for initiative in behalf of the alleged 6.3 million voters will require an examination of
whether they have complied with the provisions of Section 2, Article XVII of the Constitution.
To reiterate, Section 2, Article XVII of the Constitution provides:
Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon
a petition of at least twelve per centum of the total number of registered voters, of which every legislative district
must be represented by at least three per centum of the registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this Constitution nor oftener than once every five years
thereafter.
The Congress shall provide for the implementation of the exercise of this right. (Underscoring supplied)
The mandate of the above constitutional provisions is definite and categorical. For a peoples initiative to prosper, the following
requisites must be present:
1. It is "the people" themselves who must "directly propose" "amendments" to the Constitution;
2. The proposed amendments must be contained in "a petition of at least twelve per centum of the total number of
registered voters;" and
3. The required minimum of 12% of the total number of registered voters "must be represented by at least three per
centum of the registered voters" of "every legislative district."
In this case, however, the above requisites are not present.
The petition for initiative was filed with the COMELEC by petitioners Lambino and Aumentado, two registered voters. As shown
in the "Verification/Certification with Affidavit of Non-Forum Shopping" contained in their petition, they alleged under oath that
they have caused the preparation of the petition in their personal capacity as registered voters "and as representatives" of the
supposed 6.3 million registered voters. This goes to show that the questioned petition was not initiated directly by the 6.3 million
people who allegedly comprised at least 12% of the total number of registered voters, as required by Section 2.
Moreover, nowhere in the petition itself could be found the signatures of the 6.3 million registered voters. Only the
signatures of petitioners Lambino and Aumentado were affixed therein "as representatives" of those 6.3 million people.
Certainly, that is not the petition for peoples initiative contemplated by the Constitution.
Petitioners Lambino and Aumentado have no authority whatsoever to file the petition "as representatives" of the alleged 6.3
million registered voters. Such act of representation is constitutionally proscribed. To repeat, Section 2 strictly requires that
amendments to the Constitution shall be "directly proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters." Obviously, the phrase "directly proposed by the
people" excludes any person acting as representative or agent of the 12% of the total number of registered voters. The
Constitution has bestowed upon the people the right to directly propose amendments to the Constitution. Such right cannot be
usurped by anyone under the guise of being the peoples representative. Simply put, Section 2 does not recognize acts of
representation. For it is only "the people" (comprising the minimum of 12% 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) who are the proper
parties to initiate a petition proposing amendments to the Constitution. Verily, the petition filed with the COMELEC by herein
petitioners Lambino and Aumentado is not a peoples initiative. Necessarily, it must fail.
Cororarilly, the plea that this Court should "hear" and "heed" "the peoples voice" is baseless and misleading.There is no
peoples voice to be heard and heeded as this petition for initiative is not truly theirs, but only of petitioners Lambino
and Aumentado and their allies.
VII
The issues at bar are not political questions.
Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently argue that: (1) "the validity of the exercise of the right of
the sovereign people to amend the Constitution and their will, as expressed by the fact that over six million registered voters
indicated their support of the Petition for initiative is a purely political question;" and (2) "[t]he power to propose amendments to
the Constitution is a right explicitly bestowed upon the sovereign people. Hence, the determination by the people to exercise their
right to propose amendments under the system of initiative is a sovereign act and falls squarely within the ambit of a political
question."
The "political question doctrine" was first enunciated by the US Supreme Court in Luther v. Borden.
37
Faced with the difficult
question of whether the Supreme Court was the appropriate institution to define the substantive content of republicanism, the US
Supreme Court, speaking thru Mr. Justice Roger B. Taney, concluded that "the sovereignty in every State resides in the
people, as to how and whether they exercised it, was under the circumstances of the case, a political question to be
settled by the political power." In other words, the responsibility of settling certain constitutional questions was left to the
legislative and executive branches of the government.
The Luther case arose from the so-called "Dorr Rebellion" in the State of Rhode Island. Due to increased migration brought
about by the Industrial Revolution, the urban population of Rhode Island increased. However, under the 1663 Royal Charter
which served as the State Constitution, voting rights were largely limited to residents of the rural districts. This severe mal-
apportionment of suffrage rights led to the "Dorr Rebellion." Despairing of obtaining remedies for their disenfranchisement from
the state government, suffrage reformers invoked their rights under the American Declaration of Independence to "alter or
abolish" the government and to institute a new one. The reformers proceeded to call for and hold an extralegal constitutional
convention, drafted a new State Constitution, submitted the document for popular ratification, and held elections under it. The
State government, however, refused to cede power, leading to an anomalous situation in that for a few months in 1842, there
were two opposing state governments contending for legitimacy and possession of state of offices.
The Rhode Island militia, under the authority of martial law, entered and searched the house of Martin Luther, a Dorr supporter.
He brought suit against Luther Borden, a militiaman. Before the US Supreme Court, Luthers counsel argued that since the
States archaic Constitution prevented a fair and peaceful address of grievances through democratic processes, the people of
Rhode Island had instead chosen to exercise their inherent right in popular sovereignty of replacing what they saw as an
oppressive government. The US Supreme Court deemed the controversy as non-justiciable and inappropriate for judicial
resolution.
In Colgrove v. Green,
38
Mr. Justice Felix Frankfurter, coined the phrase "political thicket" to describe situations where Federal
courts should not intervene in political questions which they have neither the competence nor the commission to decide.
In Colgrove, the US Supreme Court, with a narrow 4-3 vote branded the apportionment of legislative districts in Illinois "as a
political question and that the invalidation of the districts might, in requiring statewide elections, create an evil greater
than that sought to be remedied."
While this Court has adopted the use of Frankfurters "political thicket," nonetheless, it has sought to come up with a definition of
the term "political question." Thus, in Vera v. Avelino,
39
this Court ruled that properly, political questions are "those questions
which, under the Constitution, are to be decided by the people in their sovereign capacity or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the government." In Taada and
Macapagal v. Cuenco,
40
the Court held that the term political question connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. It is concerned with issues dependent upon the wisdom, not legality, of a
particular measure.
In Aquino v. Enrile,
41
this Court adopted the following guidelines laid down in Baker v. Carr
42
in determining whether a question
before it is political, rather than judicial in nature, to wit:
1) there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
2) there is a lack of judicially discoverable and manageable standards for resolving it; or
3) there is the sheer impossibility of deciding the matter without an initial policy determination of a kind clearly for non-
judicial discretion; or
4) there is the sheer impossibility of the Courts undertaking an independent resolution without expressing lack of respect
due the coordinate branches of government; or
5) there is an unusual need for unquestioning adherence to a political decision already made; or
6) there exists the potentiality of embarrassment arising from multifarious pronouncements by various departments on
one question.
None of the foregoing standards is present in the issues raised before this Court. Accordingly, the issues are justiciable. What
is at stake here is the legality and not the wisdom of the act complained of.
Moreover, even assuming arguendo that the issues raised before this Court are political in nature, it is not precluded from
resolving them under its expanded jurisdiction conferred upon it by Section 1, Article VIII of the Constitution, following Daza v.
Singson.
43
As pointed out in Marcos v. Manglapus,
44
the present Constitution limits resort to the political question doctrine and
broadens the scope of judicial power which the Court, under previous charters, would have normally and ordinarily left to the
political departments to decide.
CONCLUSION
In fine, considering the political scenario in our country today, it is my view that the so-called peoples initiative to amend our
Constitution from bicameral-presidential to unicameral-parliamentary is actually not an initiative of the people, but an initiative of
some of our politicians. It has not been shown by petitioners, during the oral arguments in this case, that the 6.3 million registered
voters who affixed their signatures understood what they signed. In fact, petitioners admitted that the Constitutional provisions
sought to be amended and the proposed amendments were not explained to all those registered voters. Indeed, there will be no
means of knowing, to the point of judicial certainty, whether they really understood what petitioners and their group asked them
to sign.
Let us not repeat the mistake committed by this Court in Javellana v. The Executive Secretary.
45
The Court then ruled that "This
being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect,"
although it had notice that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified by the people
in accordance with the 1935 Constitution. The Court concluded, among others, that the viva voce voting in the Citizens
Assemblies "was and is null and void ab initio." That was during martial law when perhaps majority of the justices were scared of
the dictator. Luckily at present, we are not under a martial law regime. There is, therefore, no reason why this Court should allow
itself to be used as a legitimizing authority by the so-called peoples initiative for those who want to perpetuate themselves in
power.
At this point, I can say without fear that there is nothing wrong with our present government structure. Consequent1y, we must
not change it. America has a presidential type of government. Yet, it thrives ideally and has become a super power. It is then
safe to conclude that what we should change are some of the people running the government, NOT the SYSTEM.
According to petitioners, the proposed amendment would effect a more efficient, more economical and more responsive
government.
Is there hope that a new breed of politicians, more qualified and capable, may be elected as members and leaders of the
unicameral-parliament? Or will the present members of the Lower House continue to hold their respective positions with limitless
terms?
Will the new government be more responsive to the needs of the poor and the marginalized? Will it be able to provide homes for
the homeless, food for the hungry, jobs for the jobless and protection for the weak?
This is a defining moment in our history. The issue posed before us is crucial with transcendental significance. And history will
judge us on how we resolve this issue shall we allow the revision of our Constitution, of which we are duty bound to guard and
revere, on the basis of a doubtful peoples initiative?
Amending the Constitution involving a change of government system or structure is a herculean task affecting the entire Filipino
people and the future generations. Let us, therefore, entrust this duty to more knowledgeable people elected as members of a
Constitutional Convention.
Yes, the voice of the people is the voice of God. But under the circumstances in this case, the voice of God is not audible.
WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R. No. 174299.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
____________________
EN BANC
G.R. No. 174153
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
G.R. No. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners,
vs.
THE COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and JOHN
DOE and PETER DOE, respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE CONCURRING OPINION
CALLEJO, SR., J .:
I am convinced beyond cavil that the respondent Commission on Elections (COMELEC) did not commit an abuse of its discretion
in dismissing the amended petition before it. The proposals of petitioners incorporated in said amended petition are for the
revision of the 1987 Constitution. Further, the amended petition before the respondent COMELEC is insufficient in substance.
The Antecedents
On August 25, 2006, petitioners Raul L. Lambino and Erico B. Aumentado filed with the COMELEC a petition entitled "IN THE
MATTER OF PROPOSING AMENDMENTS TO THE 1987 CONSTITUTION THROUGH A PEOPLES INITIATIVE: A SHIFT
FROM A BICAMERAL PRESIDENTIAL TO A UNICAMERAL PARLIAMENTARY GOVERNMENT BY AMENDING ARTICLES VI
AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM THE PRESIDENTIAL TO THE
PARLIAMENTARY SYSTEM." The case was docketed as EM (LD)-06-01. On August 30, 2006, petitioners filed an amended
petition. For brevity, it is referred to as the petition for initiative.
Petitioners alleged therein, inter alia, that they filed their petition in their own behalf and together with those who have affixed
their signatures to the signature sheets appended thereto who are Filipino citizens, residents and registered voters of the
Philippines, and they constitute at least twelve percent (12%) of all the registered voters in the country, wherein each legislative
district is represented by at least three percent (3%) of all the registered voters therein.
Petitioners further alleged therein that the filing of the petition for initiative is based on their constitutional right to propose
amendments to the 1987 Constitution by way of peoples initiative, as recognized in Section 2, Article XVII thereof, which
provides:
SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right."
According to petitioners, while the above provision states that "(T)he Congress shall provide for the implementation of the
exercise of this right," the provisions of Section 5(b) and (c), along with Section 7 of Republic Act (RA) 6735,
1
are sufficient
enabling details for the peoples exercise of the power. The said sections of RA 6735 state:
Sec. 5. Requirements. (a) To exercise the power x x x
(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of
registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%)
of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as
the case may be;
c.2. the proposition;
c.3. the reason or reasons therefor;
c.4. that it is not one of the exceptions provided herein;
c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly written or printed at
the top of every page of the petition.
x x x x
Sec. 7. Verification of Signatures. The Election Registrar shall verify the signatures on the basis of the registry list of
voters, voters affidavits and voters identification cards used in the immediately preceding election.
They also alleged that the COMELEC has the authority, mandate and obligation to give due course to the petition for initiative, in
compliance with the constitutional directive for the COMELEC to "enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and recall."
2
Petitioners incorporated in their petition for initiative the changes they proposed to be incorporated in the 1987 Constitution and
prayed that the COMELEC issue an order:
1. Finding the Petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution;
2. Directing the publication of the Petition in Filipino and English at least twice in newspapers of general and local
circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by this Honorable
Commission of the sufficiency of this Petition, to allow the Filipino people to express their sovereign will on the
proposition.
Petitioners pray for such other reliefs deemed just and equitable in the premises.
The Ruling of the respondent COMELEC
On August 31, 2006, the COMELEC promulgated the assailed Resolution denying due course and dismissing the petition for
initiative. The COMELEC ruled that:
We agree with the petitioners that this Commission has the solemn Constitutional duty to enforce and administer all laws
and regulations relative to the conduct of, as in this case, initiative.
This mandate, however, should be read in relation to the other provisions of the Constitution particularly on initiative.
Section 2, Article XVII of the 1987 Constitution provides:
"Sec. 2. Amendments to this Constitution may, likewise, be directly proposed by the people through initiative,
upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative
district must be represented by at least three per centum of the registered voters therein. x x x.
The Congress shall provide for the implementation of the exercise of this right."
The aforequoted provision of the Constitution being a non-self-executory provision needed an enabling law for its
implementation. Thus, in order to breathe life into the constitutional right of the people under a system of initiative to
directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolution, Congress
enacted RA 6735.
However, the Supreme Court, in the landmark case of Santiago v. Commission on Elections struck down the said law for
being incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned
The Supreme Court, likewise, declared that this Commission should be permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system.
Thus, even if the signatures in the instant Petition appear to meet the required minimum per centum of the total number
of registered voters, of which every legislative district is represented by at least three per centum of the registered voters
therein, still the Petition cannot be given due course since the Supreme Court categorically declared RA 6735 as
inadequate to cover the system of initiative on amendments to the Constitution.
This Commission is not unmindful of the transcendental importance of the right of the people under a system of initiative.
However, neither can we turn a blind eye to the pronouncement of the High Court that in the absence of a valid enabling
law, this right of the people remains nothing but an "empty right," and that this Commission is permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution. (Citations omitted.)
Aggrieved, petitioners elevated the case to this Court on a petition for certiorari and mandamus under Rule 65 of the Rules of
Court.
The Petitioners Case
In support of their petition, petitioners alleged, inter alia, that:
I.
THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN REFUSING
TO TAKE COGNIZANCE OF, AND TO GIVE DUE COURSE TO THE PETITION FOR INITIATIVE, BECAUSE THE
CITED SANTIAGO RULING OF 19 MARCH 1997 CANNOT BE CONSIDERED THE MAJORITY OPINION OF THE
SUPREME COURT EN BANC, CONSIDERING THAT UPON ITS RECONSIDERATION AND FINAL VOTING ON 10
JUNE 1997, NO MAJORITY VOTE WAS SECURED TO DECLARE REPUBLIC ACT NO. 6735 AS INADEQUATE,
INCOMPLETE AND INSUFFICIENT IN STANDARD.
II.
THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735, REPUBLIC ACT NO. 8189 AND EXISTING APPROPRIATION
OF THE COMELEC PROVIDE FOR SUFFICIENT DETAILS AND AUTHORITY FOR THE EXERCISE OF PEOPLES
INITIATIVE, THUS, EXISTING LAWS TAKEN TOGETHER ARE ADEQUATE AND COMPLETE.
III.
THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN REFUSING
TO TAKE COGNIZANCE OF, AND IN REFUSING TO GIVE DUE COURSE TO THE PETITION FOR INITIATIVE,
THEREBY VIOLATING AN EXPRESS CONSTITUTIONAL MANDATE AND DISREGARDING AND CONTRAVENING
THE WILL OF THE PEOPLE.
A.
THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT PETITION FOR
INITIATIVE FILED BY THE PETITIONERS.
1.
THE FRAMERS OF THE CONSTITUTION INTENDED TO GIVE THE PEOPLE THE POWER TO
PROPOSE AMENDMENTS AND THE PEOPLE THEMSELVES ARE NOW GIVING VIBRANT LIFE TO
THIS CONSTITUTIONAL PROVISION
2.
PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19 MARCH 1997, THE RIGHT OF THE
PEOPLE TO EXERCISE THE SOVEREIGN POWER OF INITIATIVE AND RECALL HAS BEEN
INVARIABLY UPHELD
3.
THE EXERCISE OF THE INITIATIVE TO PROPOSE AMENDMENTS IS A POLITICAL QUESTION
WHICH SHALL BE DETERMINED SOLELY BY THE SOVEREIGN PEOPLE.
4.
BY SIGNING THE SIGNATURE SHEETS ATTACHED TO THE PETITION FOR INITIATIVE DULY
VERIFIED BY THE ELECTION OFFICERS, THE PEOPLE HAVE CHOSEN TO PERFORM THIS
SACRED EXERCISE OF THEIR SOVEREIGN POWER.
B.
THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT PETITION FOR
INITIATIVE FILED BY THE PETITIONERS
C.
THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V. COMELEC ONLY APPLIES TO THE DELFIN
PETITION.
1.
IT IS THE DISPOSITIVE PORTION OF THE DECISION AND NOT OTHER STATEMENTS IN THE
BODY OF THE DECISION THAT GOVERNS THE RIGHTS IN CONTROVERSY.
IV.
THE HONORABLE PUBLIC RESPONDENT FAILED OR NEGLECTED TO ACT OR PERFORM A DUTY MANDATED
BY LAW.
A.
THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE INITIATIVE FOR PLEBISCITE.
3
Petitioners Failed to Allege and Demonstrate All the Essential
Facts To Establish the Right to a Writ of Certiorari
Section 1, Rule 65 of the Rules of Court reads:
Sec. 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as
law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of
all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided
in the third paragraph of Section 3, Rule 46.
A writ for certiorari may issue only when the following requirements are set out in the petition and established:
(1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-judicial functions;
(2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction; and
(3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. x x x
4
The Court has invariably defined "grave abuse of discretion," thus:
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, and it must be shown that the discretion was exercised arbitrarily or despotically. For certiorari to lie, there
must be a capricious, arbitrary and whimsical exercise of power, the very antithesis of the judicial prerogative in
accordance with centuries of both civil law and common law traditions.
5
There is thus grave abuse of discretion on the part of the COMELEC when it acts in a capricious, whimsical, arbitrary or despotic
manner in the exercise of its judgment amounting to lack of jurisdiction. Mere abuse of discretion is not enough.
6
The only
question involved is jurisdiction, either the lack or excess thereof, and abuse of discretion warrants the issuance of the
extraordinary remedy of certiorari only when the same is grave, as when the power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice or personal hostility. A writ of certiorari is a remedy designed for the correction of errors
of jurisdiction and not errors of judgment.
7
An error of judgment is one in which the court may commit in the exercise of its
jurisdiction, which error is reversible only by an appeal.
8
In the present case, it appears from the assailed Resolution of the COMELEC that it denied the petition for initiative solely in
obedience to the mandate of this Court in Santiago v. Commission on Elections.
9
In said case, the Court En Banc permanently
enjoined the COMELEC from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution
until a sufficient law shall have been validly enacted to provide for the implementation of the system. When the COMELEC
denied the petition for initiative, there was as yet no valid law enacted by Congress to provide for the implementation of the
system.
It is a travesty for the Court to declare the act of the COMELEC in denying due course to the petition for initiative as "capricious,
despotic, oppressive or whimsical exercise of judgment as is equivalent to lack of jurisdiction." In fact, in so doing, the COMELEC
merely followed or applied, as it ought to do, the Courts ruling in Santiago to the effect that Section 2, Article XVII of the
Constitution on the system of initiative is a non self-executory provision and requires an enabling law for its implementation. In
relation thereto, RA 6735 was found by the Court to be "incomplete, inadequate, or wanting in essential terms and conditions" to
implement the constitutional provision on initiative. Consequently, the COMELEC was "permanently enjoined from entertaining or
taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system." The decision of the Court En Banc interpreting RA 6735 forms part of
the legal system of the Philippines.
10
And no doctrine or principle laid down by the Court En Banc may be modified or reversed
except by the Court En Banc,
11
certainly not by the COMELEC. Until the Court En Banc modifies or reverses its decision, the
COMELEC is bound to follow the same.
12
As succinctly held in Fulkerson v. Thompson:
13
Whatever was before the Court, and is disposed of, is considered as finally settled. The inferior court is bound by the
judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court
cannot vary it, or judicially examine it for any other purpose than execution. It can give no other or further relief as to any
matter decided by the Supreme Court even where there is error apparent; or in any manner intermeddle with it further
than to execute the mandate and settle such matters as have been remanded, not adjudicated by the Supreme Court.
The principles above stated are, we think, conclusively established by the authority of adjudged cases. And any further
departure from them would inevitably mar the harmony of the whole judiciary system, bring its parts into conflict, and
produce therein disorganization, disorder, and incalculable mischief and confusion. Besides, any rule allowing the inferior
courts to disregard the adjudications of the Supreme Court, or to refuse or omit to carry them into execution would be
repugnant to the principles established by the constitution, and therefore void.
14
At this point, it is well to recall the factual context of Santiago as well as the pronouncement made by the Court therein. Like
petitioners in the instant case, in Santiago, Atty. Jesus Delfin, the Peoples Initiative for Reforms, Modernization and Action
(PIRMA), et al., invoked Section 2, Article XVII of the Constitution as they filed with the COMELEC a "Petition to Amend the
Constitution, to Lift Term Limits of Elective Officials, By Peoples Initiative" (the Delfin petition). They asked the COMELEC to
issue an order fixing the time and date for signature gathering all over the country; causing the necessary publications of said
order and their petition in newspapers of general and local circulation and instructing municipal election registrars in all regions all
over the country and to assist petitioners in establishing signing stations. Acting thereon, the COMELEC issued the order prayed
for.
Senator Miriam Santiago, et al. forthwith filed with this Court a petition for prohibition to enjoin the COMELEC from implementing
its order. The Court, speaking through Justice Hilario G. Davide, Jr. (later Chief Justice), granted the petition as it declared:
1. RA 6735 "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned";
2. COMELEC Resolution No. 2300
15
invalid insofar as it prescribed rules and regulations on the conduct of initiative on
amendments to the Constitution because the COMELEC is without authority to promulgate the rules and regulations to
implement the exercise of the right of the people to directly propose amendments to the Constitution through the system of
initiative; and
3. The Delfin petition insufficient as it did not contain the required number of signatures of registered voters.
The Court concluded in Santiago that "the COMELEC should be permanently enjoined from entertaining or taking cognizance
of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for
the implementation of the system." The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered:
a) GRANTING the instant petition;
b) DECLARING RA 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have
failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the Delfin petition (UND-96-037).
The Temporary Restraining Order issued on December 18, 1996 is made permanent as against the Commission on
Elections, but is LIFTED as against private respondents.
16
The Court reiterated its ruling in Santiago in another petition which was filed with the Court by PIRMA and the spouses Alberto
and Carmen Pedrosa (who were parties in Santiago) docketed as PIRMA v. Commission on Elections.
17
The said petitioners,
undaunted by Santiago and claiming to have gathered 5,793,213 signatures, filed a petition with the COMELEC praying, inter
alia, that COMELEC officers be ordered to verify all the signatures collected in behalf of the petition and, after due hearing, that it
(COMELEC) declare the petition sufficient for the purpose of scheduling a plebiscite to amend the Constitution. Like the Delfin
petition in Santiago, the PIRMA petition proposed to submit to the people in a plebiscite the amendment to the Constitution on
the lifting of the term limits of elected officials.
The opinion of the minority that there was no doctrine enunciated by the Court in PIRMA has no basis. The COMELEC, in its
Resolution dated July 8, 1997, dismissed the PIRMA petition citing the permanent restraining order issued against it by the Court
in Santiago. PIRMA and the spouses Pedrosa forthwith elevated the matter to the Court alleging grave abuse of discretion on the
part of the COMELEC in refusing to exercise jurisdiction over, and thereby dismissing, their petition for initiative to amend the
Constitution.
The Court dismissed outright, by a unanimous vote, the petition filed by PIRMA and the spouses Albert Pedrosa. The Court
declared that the COMELEC merely complied with the dispositions in the decision of the Court in Santiago and, hence, cannot be
held to have committed a grave abuse of its discretion in dismissing the petition before it:
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
Decision of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.
The Court next considered the question of whether there was need to resolve the second issue posed by the petitioners,
namely, that the Court re-examine its ruling as regards R.A. 6735. On this issue, the Chief Justice and six (6) other
members of the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no
need to take it up. Vitug, J., agreed that there was no need for re-examination of said second issue since the case a bar
is not the proper vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno, Francisco,
Hermosisima and Panganiban, JJ., opined that there was need for such a re-examination. x x x
WHEREFORE, the petition is DISMISSED.
18
(Underscoring supplied.)
In the present case, the Office of the Solicitor General (OSG) takes the side of petitioners and argues that the COMELEC should
not have applied the ruling in Santiago to the petition for initiative because the permanent injunction therein referred only to the
Delfin petition. The OSG buttresses this argument by pointing out that the Temporary Restraining Order dated December 18,
1996 that was made permanent in the dispositive portion referred only to the Delfin petition.
The OSGs attempt to isolate the dispositive portion from the body of the Courts decision in Santiago is futile. It bears stressing
that the dispositive portion must not be read separately but in connection with the other portions of the decision of which it forms
a part. To get to the true intent and meaning of a decision, no specific portion thereof should be resorted to but the same must be
considered in its entirety. Hence, a resolution or ruling may and does appear in other parts of the decision and not merely in
the fallo thereof.
19
The pronouncement in the body of the decision in Santiago permanently enjoining the COMELEC "from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to
provide for the implementation of the system" is thus as much a part of the Courts decision as its dispositive portion. The ruling
of this Court is of the nature of an in remjudgment barring any and all Filipinos from filing a petition for initiative on
amendments to the Constitution until a sufficient law shall have been validly enacted. Clearly, the COMELEC, in denying
due course to the present petition for initiative on amendments to the Constitution conformably with the Courts ruling in Santiago
did not commit grave abuse of discretion. On the contrary, its actuation is in keeping with the salutary principle of hierarchy of
courts. For the Court to find the COMELEC to have abused its discretion when it dismissed the amended petition based on the
ruling of this Court in Santiago would be sheer judicial apostasy.
As eloquently put by Justice J.B.L. Reyes, "there is only one Supreme Court from whose decisions all other courts should take
their bearings."
20
This truism applies with equal force to the COMELEC as a quasi-judicial body for, after all, judicial decisions
applying or interpreting laws or the Constitution "assume the same authority as the statute itself and, until authoritatively
abandoned, necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of
those called upon to abide thereby but also of those duty bound to enforce obedience thereto."
21
Petitioners Cannot Ascribe
Grave Abuse of Discretion on
the COMELEC Based on the
Minority Opinion in Santiago
It is elementary that the opinion of the majority of the members of the Court, not the opinion of the minority, prevails. As a
corollary, the decision of the majority cannot be modified or reversed by the minority of the members of the Court.
However, to eschew the binding effect of Santiago, petitioners argue, albeit unconvincingly, that the Courts declaration therein
on the inadequacy, incompleteness and insufficiency of RA 6735 to implement the system of initiative to propose constitutional
amendments did not constitute the majority opinion. This contention is utterly baseless.
Santiago was concurred in, without any reservation, by eight Justices,
22
or the majority of the members of the Court, who actually
took part in the deliberations thereon. On the other hand, five Justices,
23
while voting for the dismissal of the Delfin petition on the
ground of insufficiency, dissented from the majority opinion as they maintained the view that RA 6735 was sufficient to implement
the system of initiative.
Given that a clear majority of the members of the Court, eight Justices, concurred in the decision in Santiago, the pronouncement
therein that RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments
to the Constitution is concerned" constitutes a definitive ruling on the matter.
In the Resolution dated June 10, 1997, the motions for reconsideration of the Santiago decision were denied with finality as only
six Justices, or less than the majority, voted to grant the same. The Resolution expressly stated that the motion for
reconsideration failed "to persuade the requisite majority of the Court to modify or reverse the Decision of 19 March 1977."
24
In
fine, the pronouncement in Santiago as embodied in the Decision of March 19, 1997 remains the definitive ruling on the matter.
It bears stressing that in PIRMA, petitioners prayed for the Court to resolve the issue posed by them and to re-examine its ruling
as regards RA 6735. By a vote of seven members of the Court, including Justice Justo P. Torres, Jr. and Justice Jose C. Vitug,
the Court voted that there was no need to resolve the issue. Five members of the Court opined that there was a need for the re-
examination of said ruling. Thus, the pronouncement of the Court in Santiago remains the law of the case and binding on
petitioners.
If, as now claimed by the minorty, there was no doctrine enunciated by the Court in Santiago, the Court should have resolved to
set aside its original resolution dismissing the petition and to grant the motion for reconsideration and the petition. But the Court
did not. The Court positively and unequivocally declared that the COMELEC merely followed the ruling of the Court in Santiago in
dismissing the petition before it. No less than Senior Justice Reynato S. Puno concurred with the resolution of the Court. It
behooved Justice Puno to dissent from the ruling of the Court on the motion for reconsideration of petitioners precisely on the
ground that there was no doctrine enunciated by the Court in Santiago. He did not. Neither did Chief Justice Artemio V.
Panganiban, who was a member of the Court.
That RA 6735 has failed to validly implement the peoples right to directly propose constitutional amendments through the system
of initiative had already been conclusively settled in Santiago as well as in PIRMA. Heeding these decisions, several lawmakers,
including no less than Solicitor General Antonio Eduardo Nachura when he was then a member of the House of
Representatives,
25
have filed separate bills to implement the system of initiative under Section 2, Article XVII of the Constitution.
In the present Thirteenth (13
th
) Congress, at least seven (7) bills are pending. In the Senate, the three (3) pending bills are:
Senate Bill No. 119 entitled An Act Providing for Peoples Initiative to Amend the Constitution introduced by Senator Luisa "Loi"
P. Ejercito Estrada; Senate Bill No. 2189 entitled An Act Providing for Peoples Initiative to Amend the Constitution introduced by
Senator Miriam Defensor Santiago; and Senate Bill No. 2247 entitled An Act Providing for a System of Peoples Initiative to
Propose Amendments to the Constitution introduced by Senator Richard Gordon.
In the House of Representatives, there are at least four (4) pending bills: House Bill No. 05281 filed by Representative Carmen
Cari, House Bill No. 05017 filed by Representative Imee Marcos, House Bill No. 05025 filed by Representative Roberto Cajes,
and House Bill No. 05026 filed by Representative Edgardo Chatto. These House bills are similarly entitled An Act Providing for
Peoples Initiative to Amend the Constitution.
The respective explanatory notes of the said Senate and House bills uniformly recognize that there is, to date, no law to govern
the process by which constitutional amendments are introduced by the people directly through the system of initiative. Ten (10)
years after Santiago and absent the occurrence of any compelling supervening event, i.e., passage of a law to implement the
system of initiative under Section 2, Article XVII of the Constitution, that would warrant the re-examination of the ruling therein, it
behooves the Court to apply to the present case the salutary and well-recognized doctrine of stare decisis. As earlier shown,
Congress and other government agencies have, in fact, abided by Santiago. The Court can do no less with respect to its own
ruling.
Contrary to the stance taken by petitioners, the validity or constitutionality of a law cannot be made to depend on the individual
opinions of the members who compose it the Supreme Court, as an institution, has already determined RA 6735 to be
"incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned" and therefore the same remains to be so regardless of any change in the Courts composition.
26
Indeed, it is vital that
there be stability in the courts in adhering to decisions deliberately made after ample consideration. Parties should not be
encouraged to seek re-examination of determined principles and speculate on fluctuation of the law with every change in the
expounders of it.
27
Proposals to Revise the Constitution,
As in the Case of the Petitioners
Proposal to Change the Form of
Government, Cannot be Effected
Through the System of Initiative,
Which by Express Provision of
Section 2, Article XVII of the
Constitution, is Limited to Amendments
Even granting arguendo the Court, in the present case, abandons its pronouncement in Santiago and declares RA 6735, taken
together with other extant laws, sufficient to implement the system of initiative, still, the amended petition for initiative cannot
prosper. Despite the denomination of their petition, the proposals of petitioners to change the form of government from the
present bicameral-presidential to a unicameral-parliamentary system of government are actually for the revision of the
Constitution.
Petitioners propose to "amend" Articles VI and VII of the Constitution in this manner:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:
"Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed
of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and
cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable,
contiguous, compact and adjacent territory, and each province must have at least one member.
"(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on the day
of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of
his district for a term of five years without limitation as to the number thereof, except those under the party-list system
which shall be provided for by law and whose number shall be equal to twenty per centum of the total membership
coming from the parliamentary districts."
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows:
"Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a
Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of
Parliament from among themselves. He shall be responsible to the Parliament for the program of government.
C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamentary form
of government, there shall be a new Article XVIII, entitled "Transitory Provisions," which shall read as follows:
Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the
thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a
vote of two thirds of all the members of the interim parliament.,
(2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent
Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of
both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and
responsibilities of Prime Minister under Article VII as amended.
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; provided, however, that any and all references
therein to "Congress," "Senate," "House of Representatives" and "House of Congress," "Senator[s] or "Member[s] of the
House of Representatives" and "House of Congress" shall be changed to read "Parliament"; that any and all references
therein to "Member[s] of the House of Representatives" shall be changed to read as "Member[s] of Parliament" and any
and all references to the "President" and or "Acting President" shall be changed to read "Prime Minister."
Section 3. "Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections
1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which
are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended
so as to conform to a unicameral Parliamentary System of government; provided, however, that any and all references
therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament"; that any and all references therein to "Member[s] of Congress," "Senator[s]" or "Member[s] of the House of
Parliament" and any and all references to the "President" and of "Acting President" shall be changed to read "Prime
Minister."
Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue
until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the
incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who
are heads of executive departments.
(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June
2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the interim
Parliament and shall preside over its session for the election of the interim Prime Minister and until the Speaker shall
have been elected by a majority vote of all the members of the interim Parliament from among themselves.
(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June
2010.
(4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a
strong bureaucracy.
"Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the
interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim
Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be
delegated to him by the incumbent President."
(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. [Thereafter, the Vice-President, as Member of
Parliament, shall immediately convene the Parliament and shall initially preside over its session for the purpose of
electing the Prime Minister, who shall be elected by a majority vote of all its members, from among themselves.] The
duly-elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim
Prime Minister until the expiration of the term of the incumbent President and Vice President.
28
Petitioners claim that the required number of signatures of registered voters have been complied with, i.e., the signatories to the
petition constitute twelve percent (12%) of all the registered voters in the country, wherein each legislative district is represented
by at least three percent (3%) of all the registered voters therein. Certifications allegedly executed by the respective COMELEC
Election Registrars of each municipality and city verifying these signatures were attached to the petition for initiative. The
verification was allegedly done on the basis of the list of registered voters contained in the official COMELEC list used in the
immediately preceding election.
The proposition, as formulated by petitioners, to be submitted to the Filipino people in a plebiscite to be called for the said
purpose reads:
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?
29
According to petitioners, the proposed amendment of Articles VI and VII would effect a more efficient, more economical and more
responsive government. The parliamentary system would allegedly ensure harmony between the legislative and executive
branches of government, promote greater consensus, and provide faster and more decisive governmental action.
Sections 1 and 2 of Article XVII pertinently read:
Article XVII
SECTION 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.
SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
It can be readily gleaned that the above provisions set forth different modes and procedures for proposals for the amendment
and revision of the Constitution:
1. Under Section 1, Article XVII, any amendment to, or revision of, the Constitution may be proposed by
a. Congress, upon a vote of three-fourths of all its members; or
b. A constitutional convention.
2. Under Section 2, Article XVII, amendments to the Constitution may be likewise directly proposed by the people through
initiative.
The framers of the Constitution deliberately adopted the terms "amendment" and "revision" and provided for their respective
modes and procedures for effecting changes of the Constitution fully cognizant of the distinction between the two concepts.
Commissioner Jose E. Suarez, the Chairman of the Committee on Amendments and Transitory Provisions, explained:
MR. SUAREZ. One more point, and we will be through.
We mentioned the possible use of only one term and that is, "amendment." However, the Committee finally agreed to use
the terms "amendment" or "revision" when our attention was called by the honorable Vice-President to the substantial
difference in the connotation and significance between the said terms. As a result of our research, we came up with the
observations made in the famous or notorious Javellana doctrine, particularly the decision rendered by Honorable
Justice Makasiar, wherein he made the following distinction between "amendment" and "revision" of an existing
Constitution: "Revision" may involve a rewriting of the whole Constitution. On the other hand, the act of amending a
constitution envisages a change of specific provisions only. The intention of an act to amend is not the change of the
entire Constitution, but only the improvement of specific parts or the addition of provisions deemed essential as a
consequence of new conditions or the elimination of parts already considered obsolete or unresponsive to the needs of
the times.
The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental Charter
embodying new political, social and economic concepts.
So, the Committee finally came up with the proposal that these two terms should be employed in the formulation of the
Article governing amendments or revisions to the new Constitution.
30
Further, the framers of the Constitution deliberately omitted the term "revision" in Section 2, Article XVII of the Constitution
because it was their intention to reserve the power to propose a revision of the Constitution to Congress or the constitutional
convention. Stated in another manner, it was their manifest intent that revision thereof shall not be undertaken through the
system of initiative. Instead, the revision of the Constitution shall be done either by Congress or by a constitutional convention.
It is significant to note that, originally, the provision on the system of initiative was included in Section 1 of the draft Article on
Amendment or Revision proposed by the Committee on Amendments and Transitory Provisions. The original draft provided:
SEC. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in Article __ Section __ of the Constitution.
31
However, after deliberations and interpellations, the members of the Commission agreed to remove the provision on the system
of initiative from Section 1 and, instead, put it under a separate provision, Section 2. It was explained that the removal of the
provision on initiative from the other "traditional modes" of changing the Constitution was precisely to limit the former (system of
initiative) to amendments to the Constitution. It was emphasized that the system of initiative should not extend to revision.
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
32
The intention to exclude "revision" of the Constitution as a mode that may be undertaken through the system of initiative was
reiterated and made clear by Commissioner Suarez in response to a suggestion of Commissioner Felicitas Aquino:
MR. SUAREZ. Section 2 must be interpreted together with the provisions of Section 4, except that in Section 4, as it is
presently drafted, there is no take-off date for the 60-day and 90-day periods.
MS. AQUINO. Yes. In other words, Section 2 is another alternative mode of proposing amendments to the Constitution
which would further require the process of submitting it in a plebiscite, in which case it is not self-executing.
MR. SUAREZ. No, not unless we settle and determine the take-off period.
MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the
Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as
another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing
provision?
MR SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the
matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That
was the sense 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 by the Committee.
33
Then Commissioner Hilario P. Davide, Jr. (later Chief Justice) also made the clarification with respect to the observation of
Commissioner Regalado Maambong:
MR. MAAMBONG. My first question: Commissioner Davides 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."
34
After several amendments, the Commission voted in favor of the following wording of Section 2:
AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED
VOTERS OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT
OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED
WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE
EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS
RIGHT.
Sections 1 and 2, Article XVII as eventually worded read:
Article XVII
SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:
(3) The Congress, upon a vote of three-fourths of all its Members; or
(4) A constitutional convention.
SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative, upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
The final text of Article XVII on Amendments or Revisions clearly makes a substantial differentiation not only between the two
terms but also between two procedures and their respective fields of application. Ineluctably, the system of initiative under
Section 2, Article XVII as a mode of effecting changes in the Constitution is strictly limited to amendments not to a revision
thereof.
As opined earlier, the framers of the Constitution, in providing for "amendment" and "revision" as different modes of changing the
fundamental law, were cognizant of the distinction between the two terms. They particularly relied on the distinction made by
Justice Felix Antonio in his concurring opinion in Javellana v. Executive Secretary,
35
the controversial decision which gave
imprimatur to the 1973 Constitution of former President Ferdinand E. Marcos, as follows:
There is clearly a distinction between revision and amendment of an existing constitution. Revision may involve a
rewriting of the whole constitution. The act of amending a constitution, on the other hand, envisages a change of only
specific provisions. The intention of an act to amend is not the change of the entire constitution, but only the improvement
of specific parts of the existing constitution of the addition of provisions deemed essential as a consequence of new
conditions or the elimination of parts already considered obsolete or unresponsive to the needs of the times. The 1973
Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental charter embodying
new political, social and economic concepts.
36
Other elucidation on the distinction between "amendment" and "revision" is enlightening. For example, Dean Vicente G. Sinco,
an eminent authority on political law, distinguished the two terms in this manner:
Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important
provisions. But whatever results the revisions may produce, the factor that characterizes it as an act of revision is the
original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all
the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document
should be replaced with an entirely new one.
The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The
intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that
possibility. The intention rather is to improve the specific parts of the existing constitution or to add to it provisions
deemed essential on account of changed conditions or to suppress portions of it that seemed obsolete, or dangerous, or
misleading in their effect.
37
In the United States, the Supreme Court of Georgia in Wheeler v. Board of Trustees
38
had the occasion to make the distinction
between the two terms with respect to Ga.L. 1945, an instrument which "amended" the 1877 Constitution of Georgia. It explained
the term "amendment:"
"Amendment" of a statute implies its survival and not destruction. It repeals or changes some provision, or adds
something thereto. A law is amended when it is in whole or in part permitted to remain, and something is added to or
taken from it, or it is in some way changed or altered to make it more complete or perfect, or to fit it the better to
accomplish the object or purpose for which it was made, or some other object or purpose.
39
On the other hand, the term "revision" was explained by the said US appellate court:
x x x When a house is completely demolished and another is erected on the same location, do you have a changed,
repaired and altered house, or do you have a new house? Some of the materials contained in the old house may be used
again, some of the rooms may be constructed the same, but this does not alter the fact that you have altogether another
or a new house. We conclude that the instrument as contained in Ga.L. 1945, pp. 8 to 89, inclusive, is not an amendment
to the constitution of 1877; but on the contrary it is a completely revised or new constitution.
40
Fairly recently, Fr. Joaquin Bernas, SJ, a member of the Constitutional Commission, expounded on the distinction between the
two terms thus:
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 contemplate a re-examination of the entire document or of provisions of the
document (which have overall implications for the entire document or for the fundamental philosophical underpinnings of
the document) to determine how and to what extent it should be altered. Thus, for instance, a switch from the
presidential system to a parliamentary system would be a revision because of its overall impact on the entire
constitutional structure. So would a switch from a bicameral system to a unicameral system because of its effect on other
important provisions of the Constitution.
It is thus clear that what distinguishes revision from amendment is not the quantum of change in the document. Rather, it
is the fundamental qualitative alteration that effects revision. Hence, I must reject the puerile argument that the use of the
plural form of "amendments" means that a revision can be achieved by the introduction of a multiplicity of amendments!
41
Given that revision necessarily entails a more complex, substantial and far-reaching effects on the Constitution, the framers
thereof wisely withheld the said mode from the system of initiative. It should be recalled that it took the framers of the present
Constitution four months from June 2, 1986 until October 15, 1986 to come up with the draft Constitution which, as described by
the venerable Justice Cecilia Muoz Palma, the President of the Constitutional Commission of 1986, "gradually and painstakingly
took shape through the crucible of sustained sometimes passionate and often exhilarating debates that intersected all
dimensions of the national life."
42
Evidently, the framers of the Constitution believed that a revision thereof should, in like manner, be a product of the same
extensive and intensive study and debates. Consequently, while providing for a system of initiative where the people would
directly propose amendments to the Constitution, they entrusted the formidable task of its revision to a deliberative body, the
Congress or Constituent Assembly.
The Constitution is the fundamental law of the state, containing the principles upon which the government is founded, and
regulating the division of sovereign powers, directing to what persons each of those powers is to be confided and the manner in
which it is to be exercised.
43
The Philippines has followed the American constitutional legal system in the sense that the
term constitution is given a more restricted meaning, i.e., as a written organic instrument, under which governmental powers are
both conferred and circumscribed.
44
The Constitution received its force from the express will of the people. An overwhelming 16,622,111, out of 21,785,216 votes
cast during the plebiscite, or 76.30% ratified the present Constitution on February 2, 1987.
45
In expressing that will, the
Filipino people have incorporated therein the method and manner by which the same can be amended and revised, and when
the electorate have incorporated into the fundamental law the particular manner in which the same may be altered or changed,
then any course which disregards that express will is a direct violation of the fundamental law.
46
Further, these provisions having been incorporated in the Constitution, where the validity of a constitutional amendment or
revision depends upon whether such provisions have been complied with, such question presents for consideration and
determination a judicial question, and the courts are the only tribunals vested with power under the Constitution to determine
such question.
47
Earlier, it was mentioned that Article XVII, by the use of the terms "amendment" and "revision," clearly makes a differentiation not
only between the two terms but also between two procedures and their respective fields of application. On this point, the case
of McFadden v. Jordan
48
is instructive. In that case, a "purported initiative amendment" (referred to as the proposed measure) to
the State Constitution of California, then being proposed to be submitted to the electors for ratification, was sought to be
enjoined. The proposed measure, denominated as "California Bill of Rights," comprised a single new article with some 208
subsections which would repeal or substantially alter at least 15 of the 25 articles of the California State Constitution and add at
least four new topics. Among the likely effects of the proposed measure were to curtail legislative and judicial functions, legalize
gaming, completely revise the taxation system and reduce the powers of cities, counties and courts. The proposed measure also
included diverse matters as ministers, mines, civic centers, liquor control and naturopaths.
The Supreme Court of California enjoined the submission of the proposed measure to the electors for ratification because it was
not an "amendment" but a "revision" which could only be proposed by a convention. It held that from an examination of the
proposed measure itself, considered in relation to the terms of the California State Constitution, it was clear that the proposed
initiative enactment amounted substantially to an attempted revision, rather than amendment, thereof; and that inasmuch as the
California State Constitution specifies (Article XVIII 2 thereof) that it may be revised by means of constitutional convention but
does not provide for revision by initiative measure, the submission of the proposed measure to the electorate for ratification must
be enjoined.
As piercingly enunciated by the California State Supreme Court in McFadden, the differentiation required (between amendment
and revision) is not merely between two words; more accurately it is between two procedures and between their respective fields
of application. Each procedure, if we follow elementary principles of statutory construction, must be understood to have a
substantial field of application, not to be a mere alternative procedure in the same field. Each of the two words, then, must be
understood to denote, respectively, not only a procedure but also a field of application appropriate to its procedure.
49
Provisions regulating the time and mode of effecting organic changes are in the nature of safety-valves they must not be so
adjusted as to discharge their peculiar function with too great facility, lest they become the ordinary escape-pipes of party
passion; nor, on the other hand, must they discharge it with such difficulty that the force needed to induce action is sufficient also
to explode the machine. Hence, the problem of the Constitution maker is, in this particular, one of the most difficult in our whole
system, to reconcile the requisites for progress with the requisites for safety.
50
Like in McFadden, the present petition for initiative on amendments to the Constitution is, despite its denomination, one for its
revision. It purports to seek the amendment only of Articles VI and VII of the Constitution as well as to provide transitory
provisions. However, as will be shown shortly, the amendment of these two provisions will necessarily affect other numerous
provisions of the Constitution particularly those pertaining to the specific powers of Congress and the President. These powers
would have to be transferred to the Parliament and the Prime Minister and/or President, as the case may be. More than one
hundred (100) sections will be affected or altered thereby:
1. Section 19 of Article III (Bill of Rights) on the power of Congress to impose the death penalty for compelling reasons
involving heinous crimes;
2. Section 2 of Article V (Suffrage) on the power of Congress to provide for securing the secrecy and sanctity of the ballot
as well as a system for absentee voting;
3. All 32 Sections of Article VI on the Legislative Department;
4. All 23 Sections of Article VII on the Executive Department;
5. The following Sections of Article VIII (Judicial Department):
- Section 2 on power of Congress to define, prescribe and apportion the jurisdiction of various courts;
- Section 7 on the power of Congress to prescribe the qualifications of judges of lower courts;
- Section 8 on the composition of Judicial Bar Council (JBC) which includes representatives of Congress as ex
officio members and on the power of the President to appoint the regular members of the JBC;
- Section 9 on the power of the President to appoint the members of the Supreme Court and judges of lower
courts;
- Section 16 on duty of Supreme Court to make annual report to the President and Congress.
6. The following Sections of Article IX (Constitutional Commissions);
- (B) Section 3 on duty of Civil Service Commission to make annual report to the President and Congress;
- (B) Section 5 on power of Congress to provide by law for the standardization of compensation of government
officials;
- (B) Section 8 which provides in part that "no public officer shall accept, without the consent of Congress, any
present, emolument, etc. x x x"
- (C) Section 1 on the power of the President to appoint the Chairman and Commissioners of the Commission on
Elections with the consent of the Commission on Appointments;
- (C) Section 2 (7) on the power of the COMELEC to recommend to Congress measures to minimize election
spending x x x;
- (C) Section 2 (8) on the duty of the COMELEC to recommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other disciplinary action x x x;
- (C) Section 2 (9) on the duty of the COMELEC to submit to the President and Congress a report on the conduct
of election, plebiscite, etc.;
- (C) Section 5 on the power of the President, with the favorable recommendation of the COMELEC, to grant
pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules and regulations;
- (C) Section 7 which recognizes as valid votes cast in favor of organization registered under party-list system;
- (C) Section 8 on political parties, organizations or coalitions under the party-list system;
- (D) Section 1 (2) on the power of the President to appoint the Chairman and Commissioners of the Commission
on Audit (COA) with the consent of the Commission of Appointments;
- Section 4 on duty of the COA to make annual report to the President and Congress.
7. The following Sections of Article X (Local Government):
- Section 3 on the power of Congress to enact a local government code;
- Section 4 on the power of the President to exercise general supervision over local government units (LGUs);
- Section 5 on the power of LGUs to create their own sources of income x x x, subject to such guidelines as
Congress may provide;
- Section 11 on the power of Congress to create special metropolitan political subdivisions;
- Section 14 on the power of the President to provide for regional development councils x x x;
- Section 16 on the power of the President to exercise general supervision over autonomous regions;
- Section 18 on the power of Congress to enact organic act for each autonomous region as well as the power of
the President to appoint the representatives to the regional consultative commission;
- Section 19 on the duty of the first Congress elected under the Constitution to pass the organic act for
autonomous regions in Muslim Mindanao and the Cordilleras.
8. The following Sections of Article XI (Accountability of Public Officers):
- Section 2 on the impeachable officers (President, Vice-President, etc.);
- Section 3 on impeachment proceedings (exclusive power of the House to initiate complaint and sole power of
the Senate to try and decide impeachment cases);
- Section 9 on the power of the President to appoint the Ombudsman and his deputies;
- Section 16 which provides in part that "x x x no loans or guaranty shall be granted to the President, Vice-
President, etc.
- Section 17 on mandatory disclosure of assets and liabilities by public officials including the President, Vice-
President, etc.
9. The following Sections of Article XII (National Economy and Patrimony):
- Section 2 on the power of Congress to allow, by law, small-scale utilization of natural resources and power of
the President to enter into agreements with foreign-owned corporations and duty to notify Congress of every
contract;
- Section 3 on the power of Congress to determine size of lands of public domain;
- Section 4 on the power of Congress to determine specific limits of forest lands;
- Section 5 on the power of Congress to provide for applicability of customary laws;
- Section 9 on the power of Congress to establish an independent economic and planning agency to be headed
by the President;
- Section 10 on the power of Congress to reserve to Filipino citizens or domestic corporations(at least 60%
Filipino-owned) certain areas of investment;
- Section 11 on the sole power of Congress to grant franchise for public utilities;
- Section 15 on the power of Congress to create an agency to promote viability of cooperatives;
- Section 16 which provides that Congress shall not, except by general law, form private corporations;
- Section 17 on the salaries of the President, Vice-President, etc. and the power of Congress to adjust the same;
- Section 20 on the power of Congress to establish central monetary authority.
10. The following Sections of Article XIII (Social Justice and Human Rights):
- Section 1 on the mandate of Congress to give highest priority to enactment of measures that protect and
enhance the right of people x x x
- Section 4 on the power of Congress to prescribe retention limits in agrarian reform;
- Section 18 (6) on the duty of the Commission on Human Rights to recommend to Congress effective measures
to promote human rights;
- Section 19 on the power of Congress to provide for other cases to fall within the jurisdiction of the Commission
on Human Rights.
11. The following Sections of Article XIV (Education, Science and Technology, etc.):
- Section 4 on the power of Congress to increase Filipino equity participation in educational institutions;
- Section 6 which provides that subject to law and as Congress may provide, the Government shall sustain the
use of Filipino as medium of official communication;
- Section 9 on the power of Congress to establish a national language commission;
- Section 11 on the power of Congress to provide for incentives to promote scientific research.
12. The following Sections of Article XVI (General Provisions):
- Section 2 on the power of Congress to adopt new name for the country, new national anthem, etc.;
- Section 5 (7) on the tour of duty of the Chief of Staff which may be extended by the President in times of war or
national emergency declared by Congress;
- Section 11 on the power of Congress to regulate or prohibit monopolies in mass media;
- Section 12 on the power of Congress to create consultative body to advise the President on indigenous cultural
communities.
13. The following Sections of Article XVII (Amendments or Revisions):
- Section 1 on the amendment or revision of Constitution by Congress;
- Section 2 on the duty of Congress to provide for the implementation of the system of initiative;
- Section 3 on the power of Congress to call constitutional convention to amend or revise the Constitution.
14. All 27 Sections of Article XVIII (Transitory Provisions).
The foregoing enumeration negates the claim that "the big bulk of the 1987 Constitution will not be affected."
51
Petitioners
proposition, while purportedly seeking to amend only Articles VI and VII of the Constitution and providing transitory provisions,
will, in fact, affect, alter, replace or repeal other numerous articles and sections thereof. More than the quantitative effects,
however, the revisory character of petitioners proposition is apparent from the qualitative effects it will have on the fundamental
law.
I am not impervious to the commentary of Dean Vicente G. Sinco that the revision of a constitution, in its strict sense, refers to a
consideration of the entire constitution and the procedure for effecting such change; whileamendment refers only to particular
provisions to be added to or to be altered in a constitution.
52
For clarity and accuracy, however, it is necessary to reiterate below Dean Sincos more comprehensive differentiation of the
terms:
Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important
provisions. But whatever results the revisions may produce, the factor that characterizes it as an act of revision is the
original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all
the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document
should be replaced with an entirely new one.
The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The
intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that
possibility. The intention rather is to improve the specific parts of the existing constitution or to add to it provisions
deemed essential on account of changed conditions or to suppress portions of it that seemed obsolete, or dangerous, or
misleading in their effect.
53
A change in the form of government from bicameral-presidential to unicameral-parliamentary, following the above distinction,
entails a revision of the Constitution as it will involve "alteration of different portions of the entire document" and "may result in the
rewriting of the whole constitution, or the greater portion of it, or perhaps only some of its important provisions."
More importantly, such shift in the form of government will, without doubt, fundamentally change the basic plan and substance of
the present Constitution. The tripartite system ordained by our fundamental law divides governmental powers into three distinct
but co-equal branches: the legislative, executive and judicial. Legislative power, vested in Congress which is a bicameral body
consisting of the House of Representatives and the Senate, is the power to make laws and to alter them at discretion. Executive
power, vested in the President who is directly elected by the people, is the power to see that the laws are duly executed and
enforced. Judicial power, vested in the Supreme Court and the lower courts, is the power to construe and apply the law when
controversies arise concerning what has been done or omitted under it. This separation of powers furnishes a system of checks
and balances which guards against the establishment of an arbitrary or tyrannical government.
Under a unicameral-parliamentary system, however, the tripartite separation of power is dissolved as there is a fusion between
the executive and legislative powers. Essentially, the President becomes a mere "symbolic head of State" while the Prime
Minister becomes the head of government who is elected, not by direct vote of the people, but by the members of the Parliament.
The Parliament is a unicameral body whose members are elected by legislative districts. The Prime Minister, as head of
government, does not have a fixed term of office and may only be removed by a vote of confidence of the Parliament. Under this
form of government, the system of checks and balances is emasculated.
Considering the encompassing scope and depth of the changes that would be effected, not to mention that the Constitutions
basic plan and substance of a tripartite system of government and the principle of separation of powers underlying the same
would be altered, if not entirely destroyed, there can be no other conclusion than that the proposition of petitioners Lambino, et
al. would constitute a revision of the Constitution rather than an amendment or "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."
54
As has been shown,
the effect of the adoption of the petitioners proposition, rather than to "within the lines of the original instrument" constitute "an
improvement or better carry out the purpose for which it was framed," is to "substantially alter the purpose and to attain
objectives clearly beyond the lines of the Constitution as now cast."
55
To paraphrase McFadden, petitioners contention that any change less than a total one is amendatory would reduce to the rubble
of absurdity the bulwark so carefully erected and preserved. A case might, conceivably, be presented where the question would
be occasion to undertake to define with nicety the line of demarcation; but we have no case or occasion here.
As succinctly by Fr. Joaquin Bernas, "a switch from the presidential system to a parliamentary system would be a revision
because of its overall impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral
system because of its effect on other important provisions of the Constitution. It is thus clear that what distinguishes revision from
amendment is not the quantum of change in the document. Rather, it is the fundamental qualitative alteration that effects
revision."
56
The petition for initiative on amendments to the Constitution filed by petitioners Lambino, et al., being in truth and in fact a
proposal for the revision thereof, is barred from the system of initiative upon any legally permissible construction of Section 2,
Article XVII of the Constitution.
The Petition for Initiative on
Amendments to the Constitution
is, on its Face, Insufficient in
Form and Substance
Again, even granting arguendo RA 6735 is declared sufficient to implement the system of initiative and that COMELEC
Resolution No. 2300, as it prescribed rules and regulations on the conduct of initiative on amendments to the Constitution, is
valid, still, the petition for initiative on amendments to the Constitution must be dismissed for being insufficient in form and
substance.
Section 5 of RA 6735 requires that a petition for initiative on the Constitution must state the following:
1. Contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case
may be;
2. The proposition;
3. The reason or reasons therefor;
4. That it is not one of the exceptions provided herein;
5. Signatures of the petitioners or registered voters; and
6. An abstract or summary proposition in not more than one hundred (100) words which shall be legibly written or printed
at the top of every page of the petition.
Section 7 thereof requires that the signatures be verified in this wise:
SEC. 7. Verification of Signatures. The Election Registrar shall verify the signatures on the basis of the registry list of
voters, voters affidavits and voters identification cards used in the immediately preceding election.
The law mandates upon the election registrar to personally verify the signatures. This is a solemn and important duty imposed on
the election registrar which he cannot delegate to any other person, even to barangay officials. Hence, a verification of signatures
made by persons other than the election registrars has no legal effect.
In patent violation of the law, several certifications submitted by petitioners showed that the verification of signatures was
made, not by the election registrars, but by barangay officials. For example, the certification of the election officer in Lumbatan,
Lanao del Sur reads in full:
LOCAL ELECTION OFFICERS CERTIFICATION
57
THIS IS TO CERTIFY that based on the verifications made by the Barangay Officials in this City/Municipality, as attested
to by two (2) witnesses from the same Barangays, which is part of the 2
nd
Legislative District of the Province of Lanao del
Sur, the names appearing on the attached signature sheets relative to the proposed initiative on Amendments to the
1987 Constitution, are those of bonafide resident of the saidBarangays and correspond to the names found in the official
list of registered voters of the Commission on Elections and/or voters affidavit and/or voters identification cards.
It is further certified that the total number of signatures of the registered voters for the City/Municipality of LUMBATAN,
LANAO DEL SUR as appearing in the affixed signatures sheets is ONE THOUSAND ONE HUNDRED EIGHTY (1,180).
April 2, 2006
IBRAHIM M. MACADATO
Election Officer
(Underscoring supplied)
The ineffective verification in almost all the legislative districts in the Autonomous Region of Muslim Mindanao (ARMM) alone is
shown by the certifications, similarly worded as above-quoted, of the election registrars of Buldon, Maguindanao;
58
Cotabato City
(Special Province);
59
Datu Odin Sinsuat, Maguindanao;
60
Matanog, Maguindanao;
61
Parang, Maguindanao;
62
Kabantalan,
Maguindanao;
63
Upi, Maguinadano;
64
Barira, Maguindanao;
65
Sultan, Mastura;
66
Ampatuan, Maguindanao;
67
Buluan,
Maguindanao;
68
Datu Paglas, Maguindanao;
69
Datu Piang, Maguindanao;
70
Shariff Aguak, Maguindanao;
71
Pagalungan,
Maguindanao;
72
Talayan, Maguindanao;
73
Gen. S.K. Pendatun, Maguindanao;
74
Mamasapano, Maguindanao;
75
Talitay,
Maguindanao;
76
Guindulungan, Maguindanao;
77
Datu Saudi Ampatuan, Maguindanao;
78
Datu Unsay,
Maguindanao;
79
Pagagawan, Maguindanao;
80
Rajah Buayan, Maguindanao;
81
Indanan, Sulu;
82
Jolo, Sulu;
83
Maimbung,
Sulu;
84
Hadji Panglima, Sulu;
85
Pangutaran, Sulu;
86
Parang, Sulu;
87
Kalingalan Caluang, Sulu;
88
Luuk, Sulu;
89
Panamao,
Sulu;
90
Pata, Sulu;
91
Siasi, Sulu;
92
Tapul, Sulu;
93
Panglima Estino, Sulu;
94
Lugus, Sulu;
95
and Pandami, Sulu.
96
Section 7 of RA 6735 is clear that the verification of signatures shall be done by the election registrar, and by no one else,
including the barangay officials. The foregoing certifications submitted by petitioners, instead of aiding their cause, justify the
outright dismissal of their petition for initiative. Because of the illegal verifications made bybarangay officials in the above-
mentioned legislative districts, it necessarily follows that the petition for initiative has failed to comply with the requisite number of
signatures, i.e., at least twelve percent (12%) of the total number of registered voters, of which every legislative district must be
represented by at least three percent (3%) of the registered voters therein.
Petitioners cannot disclaim the veracity of these damaging certifications because they themselves submitted the same to the
COMELEC and to the Court in the present case to support their contention that the requirements of RA 6735 had been complied
with and that their petition for initiative is on its face sufficient in form and substance. They are in the nature of judicial admissions
which are conclusive and binding on petitioners.
97
This being the case, the Court must forthwith order the dismissal of the petition
for initiative for being, on its face, insufficient in form and substance. The Court should make the adjudication entailed by the
facts here and now, without further proceedings, as it has done in other cases.
98
It is argued by petitioners that, assuming arguendo that the COMELEC is correct in relying on Santiago that RA 6735 is
inadequate to cover initiative to the Constitution, this cannot be used to legitimize its refusal to heed the peoples will. The fact
that there is no enabling law should not prejudice the right of the sovereign people to propose amendments to the Constitution,
which right has already been exercised by 6,327,952 voters. The collective and resounding act of the particles of sovereignty
must not be set aside. Hence, the COMELEC should be ordered to comply with Section 4, Article XVII of the 1987 Constitution
via a writ of mandamus. The submission of petitioners, however, is unpersuasive.
Mandamus is a proper recourse for citizens who act to enforce a public right and to compel the persons of a public duty most
especially when mandated by the Constitution.
99
However, under Section 3, Rule 65 of the 1997 Rules of Court, for a petition
for mandamus to prosper, it must be shown that the subject of the petition is a ministerial act or duty and not purely discretionary
on the part of the board, officer or person, and that petitioner has a well-defined, clear and certain right to warrant the grant
thereof. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the
propriety or impropriety of the act done. If the law imposes a duty upon a public official and gives him the right to decide how or
when the duty should be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge
of the same requires neither the exercise of an official discretion nor judgment.
100
To stress, in a petition for mandamus, petitioner must show a well defined, clear and certain right to warrant the grant
thereof.
101
In this case, petitioners failed to establish their right to a writ of mandamus as shown by the foregoing disquisitions.
Remand of the Case to the
COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300
The dissenting opinion posits that the issue of whether or not the petition for initiative has complied with the requisite number of
signatures of at least twelve percent (12%) of the total number of registered voters, of which every legislative district must be
represented by at least three percent (3%) of the registered voters therein, involves contentious facts. The dissenting opinion
cites the petitioners claim that they have complied with the same while the oppositors-intervenors have vigorously refuted this
claim by alleging, inter alia, that the signatures were not properly verified or were not verified at all. Other oppositors-intervenors
have alleged that the signatories did not fully understand what they have signed as they were misled into signing the signature
sheets.
According to the dissenting opinion, the sufficiency of the petition for initiative and its compliance with the requirements of RA
6735 on initiative and its implementing rules is a question that should be resolved by the COMELEC at the first instance. It thus
remands the case to the COMELEC for further proceedings.
To my mind, the remand of the case to the COMELEC is not warranted. There is nothing in RA 6735, as well as in COMELEC
Resolution No. 2300, granting that it is valid to implement the former statute, that authorizes the COMELEC to conduct any kind
of hearing, whether full-blown or trial-type hearing, summary hearing or administrative hearing, on a petition for initiative.
Section 41 of COMELEC Resolution No. 2300 provides that "[a]n initiative shall be conducted under the control and supervision
of the Commission in accordance with Article III hereof." Pertinently, Sections 30, 31 and 32 of Article III of the said implementing
rules provide as follows:
Sec. 30. Verification of signatures. The Election Registrar shall verify the signatures on the basis of the registry list of
voters, voters affidavits and voters identification cards used in the immediately preceding election.
Sec. 31. Determination by the Commission. The Commission shall act on the findings of the sufficiency or insufficiency
of the petition for initiative or referendum.
If it should appear that the required number of signatures has not been obtained, the petition shall be deemed defeated
and the Commission shall issue a declaration to that effect.
If it should appear that the required number of signatures has been obtained, the Commission shall set the initiative or
referendum in accordance with the succeeding sections.
Sec. 32. Appeal. The decision of the Commission on the findings of the sufficiency and insufficiency of the petition for
initiative or referendum may be appealed to the Supreme Court within thirty (30) days from notice hereof.
Clearly, following the foregoing procedural rules, the COMELEC is not authorized to conduct any kind of hearing to receive any
evidence for or against the sufficiency of the petition for initiative. Rather, the foregoing rules require of the COMELEC to
determine the sufficiency or insufficiency of the petition for initiative on its face. And it has already been shown, by the annexes
submitted by the petitioners themselves, their petition is, on its face, insufficient in form and substance. The remand of the case
to the COMELEC for reception of evidence of the parties on the contentious factual issues is, in effect, an amendment of the
abovequoted rules of the COMELEC by this Court which the Court is not empowered to do.
The Present Petition Presents a
Justiciable Controversy; Hence,
a Non-Political Question. Further,
the People, Acting in their Sovereign
Capacity, Have Bound Themselves
to Abide by the Constitution
Political questions refer to those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of
government.
102
A political question has two aspects: (1) those matters that are to be exercised by the people in their primary
political capacity; and (2) matters which have been specifically designated to some other department or particular office of the
government, with discretionary power to act.
103
In his concurring and dissenting opinion in Arroyo v. De Venecia,
104
Senior Associate Justice Reynato S. Puno explained the
doctrine of political question vis--vis the express mandate of the present Constitution for the courts to determine whether or not
there has been a grave abuse of discretion on the part of any branch or instrumentality of the Government:
In the Philippine setting, there is more compelling reason for courts to categorically reject the political question defense
when its interposition will cover up abuse of power. For Section 1, Article VIII of our Constitution was intentionally cobbled
to empower courts "... to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not
granted to our courts in the 1935 and 1972 Constitutions. It was also not xeroxed from the US Constitution or any foreign
state constitution. The CONCOM [Constitutional Commission] granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse
of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded
and sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative departments of
government. In cases involving the proclamation of martial law and suspension of the privilege of habeas corpus, it is
now beyond dubiety that the government can no longer invoke the political question defense.
x x x x
To a great degree, it diminished its [political question doctrine] use as a shield to protect other abuses of government by
allowing courts to penetrate the shield with new power to review acts of any branch or instrumentality of the government
". . . to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction."
Even if the present petition involves the act, not of a governmental body, but of purportedly more than six million registered voters
who have signified their assent to the proposal to amend the Constitution, the same still constitutes a justiciable controversy,
hence, a non-political question. There is no doubt that the Constitution, under Article XVII, has explicitly provided for the manner
or method to effect amendments thereto, or revision thereof. The question, therefore, of whether there has been compliance with
the terms of the Constitution is for the Court to pass upon.
105
In the United States, in In re McConaughy,
106
the State Supreme Court of Minnesota exercised jurisdiction over the petition
questioning the result of the general election holding that "an examination of the decisions shows that the courts have almost
uniformly exercised the authority to determine the validity of the proposal, submission, or ratification of constitutional
amendments." The cases cited were Dayton v. St. Paul,
107
Rice v. Palmer,
108
Bott v. Wurtz,
109
State v. Powell,
110
among other
cases.
There is no denying that "the Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them."
111
However, I find to be tenuous the asseveration that "the argument that the people
through initiative cannot propose substantial amendments to change the Constitution turns sovereignty in its head. At the very
least, the submission constricts the democratic space for the exercise of the direct sovereignty of the people."
112
In effect, it is
theorized that despite the unambiguous text of Section 2, Article XVII of the Constitution withholding the power to revise it from
the system of initiative, the people, in their sovereign capacity, can conveniently disregard the said provision.
I strongly take exception to the view that the people, in their sovereign capacity, can disregard the Constitution altogether. Such a
view directly contravenes the fundamental constitutional theory that while indeed "the ultimate sovereignty is in the people, from
whom springs all legitimate authority"; nonetheless, "by the Constitution which they establish, they not only tie up the hands of
their official agencies, but their own hands as well; and neither the officers of the state, nor the whole people as an aggregate
body, are at liberty to take action in opposition to this fundamental law."
113
The Constitution, it should be remembered, "is the
protector of the people, placed on guard by them to save the rights of the people against injury by the people."
114
This is the
essence of constitutionalism:
Through constitutionalism we placed limits on both our political institutions and ourselves, hoping that democracies,
historically always turbulent, chaotic and even despotic, might now become restrained, principled, thoughtful and just. So
we bound ourselves over to a law that we made and promised to keep. And though a government of laws did not displace
governance by men, it did mean that now men, democratic men, would try to live by their word.
115
Section 2, Article XVII of the Constitution on the system of initiative is limited only to proposals to amend to the Constitution, and
does not extend to its revision. The Filipino people have bound themselves to observe the manner and method to effect the
changes of the Constitution. They opted to limit the exercise of the right to directly propose amendments to the Constitution
through initiative, but did not extend the same to the revision thereof. The petition for initiative, as it proposes to effect the
revision thereof, contravenes the Constitution. The fundamental law of the state prescribes the limitations under which the
electors of the state may change the same, and, unless such course is pursued, the mere fact that a majority of the electors are
in favor of a change and have so expressed themselves, does not work a change. Such a course would be revolutionary, and the
Constitution of the state would become a mere matter of form.
116
The very term Constitution implies an instrument of a permanent and abiding nature, and the provisions contained therein for its
revision indicated 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.
117
The Filipino people have incorporated the safety valves of amendment and revision in Article XVII of the Constitution. The Court
is mandated to ensure that these safety valves embodied in the Constitution to guard against improvident and hasty changes
thereof are not easily trifled with. To be sure, by having overwhelmingly ratified the Constitution, the Filipino people believed that
it is "a good Constitution" and in the words of the learned Judge Cooley:
x x x should be beyond the reach of temporary excitement and popular caprice or passion. It is needed for stability and
steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement
or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency.
Changes in government are to be feared unless the benefit is certain. As Montaign says: "All great mutations shake and
disorder a state. Good does not necessarily succeed evil; another evil may succeed and worse.
118
Indisputably, the issues posed in the present case are of transcendental importance. Accordingly, I have approached and
grappled with them with full appreciation of the responsibilities involved in the present case, and have given to its consideration
the earnest attention which its importance demands. I have sought to maintain the supremacy of the Constitution at whatever
hazard. I share the concern of Chief Justice Day in Koehler v. Hill:
119
"it is for the protection of minorities that constitutions are
framed. Sometimes constitutions must be interposed for the protection of majorities even against themselves. Constitutions are
adopted in times of public repose, when sober reason holds her citadel, and are designed to check the surging passions in times
of popular excitement. But if courts could be coerced by popular majorities into a disregard of their provisions, constitutions would
become mere ropes of sand, and there would be an end of social security and of constitutional freedom. The cause of
temperance can sustain no injury from the loss of this amendment which would be at all comparable to the injury to republican
institutions which a violation of the constitution would inflict. That large and respectable class of moral reformers which so justly
demands the observance and enforcement of law, cannot afford to take its first reformatory step by a violation of the constitution.
How can it consistently demand of others obedience to a constitution which it violates itself? The people can in a short time re-
enact the amendment. In the manner of a great moral reform, the loss of a few years is nothing. The constitution is the palladium
of republican freedom. The young men coming forward upon the stage of political action must be educated to venerate it; those
already upon the stage must be taught to obey it. Whatever interest may be advanced or may suffer, whoever or whatever may
be voted up or voted down, no sacrilegious hand must be laid upon the constitution."
120
WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R. No. 174299.
ROMEO J. CALLEJO, SR.
Associate Justice
____________________
EN BANC
G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.) and
G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.).
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
AZCUNA, J .:
"Why, friends, you go to do you know not what."
-- Shakespeare, Julius Caesar, Act III, Sc. 2.
Article XVII of the Constitution states:
AMENDMENTS OR REVISIONS
Section 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 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 votes therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
Sec. 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority
vote of all its Members, submit to the electorate the question of calling such a convention.
Sec. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the
approval of such amendment or revision.
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of
the sufficiency of the petition.
This Article states the procedure for changing the Constitution.
Constitutions have three parts the Constitution of Liberty, which states the fundamental rights of the people; the Constitution of
Government, which establishes the structure of government, its branches and their operation; and the Constitution of
Sovereignty, which provides how the Constitution may be changed.
Article XVII is the Constitution of Sovereignty.
As a result, the powers therein provided are called constituent powers. So when Congress acts under this provision, it acts not as
a legislature exercising legislative powers. It acts as a constituent body exercising constituent powers.
The rules, therefore, governing the exercise of legislative powers do not apply, or do not apply strictly, to the actions taken under
Article XVII.
Accordingly, since Article XVII states that Congress shall provide for the implementation of the exercise of the peoples right
directly to propose amendments to the Constitution through initiative, the act of Congress pursuant thereto is not strictly a
legislative action but partakes of a constituent act.
As a result, Republic Act No. 6735, the act that provides for the exercise of the people of the right to propose a law or
amendments to the Constitution is, with respect to the right to propose amendments to the Constitution, a constituent measure,
not a mere legislative one.
The consequence of this special character of the enactment, insofar as it relates to proposing amendments to the Constitution, is
that the requirements for statutory enactments, such as sufficiency of standards and the like, do not and should not strictly apply.
As long as there is a sufficient and clear intent to provide for the implementation of the exercise of the right, it should be
sustained, as it is simply a compliance of the mandate placed on Congress by the Constitution.
Seen in this light, the provisions of Republic Act No. 6735 relating to the procedure for proposing amendments to the
Constitution, can and should be upheld, despite shortcomings perhaps in legislative headings and standards.
For this reason, I concur in the view that Santiago v. Comelec
1
should be re-examined and, after doing so, that the
pronouncement therein regarding the insufficiency or inadequacy of the measure to sustain a peoples initiative to amend the
Constitution should be reconsidered in favor of allowing the exercise of this sovereign right.
And applying the doctrine stated in Senarillos v. Hermosisima,
2
penned by Justice J.B.L. Reyes, in relation to Article 8 of the Civil
Code, that a decision of this Court interpreting a law forms part of the law interpreted as of the time of its enactment, Republic Act
No. 6735 should be deemed sufficient and adequate from the start.
This next point to address, there being a sufficient law, is whether the petition for initiative herein involved complies with the
requirements of that law as well as those stated in Article XVII of the Constitution.
True it is that ours is a democratic state, as explicitated in the Declaration of Principles, to emphasize precisely that there are
instances recognized and provided for in the Constitution where our people directly exercise their sovereign powers, new
features set forth in this People Power Charter, namely, the powers of recall, initiative and referendum.
Nevertheless, this democratic nature of our polity is that of a democracy under the rule of law. This equally important point is
emphasized in the very Preamble to the Constitution, which states:
". . . the blessings of . . . democracy under the rule of law . . . ."
Such is the case with respect to the power to initiate changes in the Constitution. The power is subject to limitations under the
Constitution itself, thus: The power could not be exercised for the first five years after the Constitution took effect and thereafter
can only be exercised once every five years; the power only extends to proposing amendments but not revisions; and the power
needs an act of Congress providing for its implementation, which act is directed and mandated.
The question, therefore, arises whether the proposed changes in the Constitution set forth in the petition for initiative herein
involved are mere amendments or rather are revisions.
Revisions are changes that affect the entire Constitution and not mere parts of it.
The reason why revisions are not allowed through direct proposals by the people through initiative is a practical one, namely,
there is no one to draft such extensive changes, since 6.3 million people cannot conceivably come up with a single extensive
document through a direct proposal from each of them. Someone would have to draft it and that is not authorized as it would not
be a direct proposal from the people. Such indirect proposals can only take the form of proposals from Congress as a
Constituent Assembly under Article XVII, or a Constitutional Convention created under the same provision. Furthermore, there is
a need for such deliberative bodies for revisions because their proceedings and debates are duly and officially recorded, so that
future cases of interpretations can be properly aided by resort to the record of their proceedings.
Even a cursory reading of the proposed changes contained in the petition for initiative herein involved will show on its face that
the proposed changes constitute a revision of the Constitution. The proposal is to change the system of government from that
which is bicameral-presidential to one that is unicameral-parliamentary.
While purportedly only Articles VI, VII, and XVIII are involved, the fact is, as the petition and text of the proposed changes
themselves state, every provision of the Constitution will have to be examined to see if they conform to the nature of a
unicameral-parliamentary form of government and changed accordingly if they do not so conform to it. For example, Article VIII
on Judicial Department cannot stand as is, in a parliamentary system, for under such a system, the Parliament is supreme, and
thus the Courts power to declare its act a grave abuse of discretion and thus void would be an anomaly.
Now, who is to do such examination and who is to do such changes and how should the changes be worded? The proposed
initiative does not say who nor how.
Not only, therefore, is the proposed initiative, on this score, a prohibited revision but it also suffers from being incomplete and
insufficient on its very face.
It, therefore, in that form, cannot pass muster the very limits contained in providing for the power under the Constitution.
Neither does it comply with Republic Act No. 6735, which states in Section 10 that not more than one subject shall be proposed
as an amendment or amendments to the Constitution. The petition herein would propose at the very least two subjects a
unicameral legislature and a parliamentary form of government. Again, for this clear and patent violation of the very act that
provides for the exercise of the power, the proposed initiative cannot lie.
This does not mean, however, that all is lost for petitioners.
For the proposed changes can be separated and are, in my view, separable in nature a unicameral legislature is one; a
parliamentary form of government is another. The first is a mere amendment and contains only one subject matter. The second is
clearly a revision that affects every article and every provision in the Constitution to an extent not even the proponents could at
present fully articulate. Petitioners Lambino, et al. thus go about proposing changes the nature and extent of which they do not
as yet know exactly what.
The proposal, therefore, contained in the petition for initiative, regarding a change in the legislature from a bicameral or two-
chamber body to that of a unicameral or one-chamber body, is sustainable. The text of the changes needed to carry it out are
perfunctory and ministerial in nature. Once it is limited to this proposal, the changes are simply one of deletion and insertions, the
wordings of which are practically automatic and non-discretionary.
As an example, I attach to this opinion an Appendix "A" showing how the Constitution would read if we were to change Congress
from one consisting of the Senate and the House of Representatives to one consisting only of the House of Representatives. It
only affects Article VI on the Legislative Department, some provisions on Article VII on the Executive Department, as well as
Article XI on the Accountability of Public Officers, and Article XVIII on Transitory Provisions. These are mere amendments,
substantial ones indeed but still only amendments, and they address only one subject matter.
Such proposal, moreover, complies with the intention and rationale behind the present initiative, which is to provide for simplicity
and economy in government and reduce the stalemates that often prevent needed legislation.
For the nonce, therefore, I vote to DISMISS the petition, without prejudice to the filing of an appropriate initiative to propose
amendments to the Constitution to change Congress into a unicameral body. This is not say that I favor such a change. Rather,
such a proposal would come within the purview of an initiative allowed under Article XVII of the Constitution and its implementing
Republic Act, and should, therefore, be submitted to our people in a plebiscite for them to decide in their sovereign capacity.
After all is said and done, this is what democracy under the rule of law is about.
ADOLFO S. AZCUNA
Associate Justice
____________________
EN BANC
G. R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS
vs.
THE COMMISSION ON ELECTIONS
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners
RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and
NICODEMO T. FERRER, and John Doe and Peter Doe
x ---------------------------------------------------------------------------------------- x
"It is a Constitution we are expounding"
1
Chief Justice John Marshall
DISSENTING OPINION
PUNO, J .:
The petition at bar is not a fight over molehills. At the crux of the controversy is the critical understanding of thefirst and
foremost of our constitutional principles "the Philippines is a democratic and republican State. Sovereignty resides in the
people and all government authority emanates from them."
2
Constitutionalism dictates that this creed must be respected with
deeds; our belief in its validity must be backed by behavior.
This is a Petition for Certiorari and Mandamus to set aside the resolution of respondent Commission on Elections (COMELEC)
dated August 31, 2006, denying due course to the Petition for Initiative filed by petitioners Raul L. Lambino and Erico B.
Aumentado in their own behalf and together with some 6.3 million registered voters who have affixed their signatures thereon,
and praying for the issuance of a writ of mandamus to compel respondent COMELEC to set the date of the plebiscite for the
ratification of the proposed amendments to the Constitution in accordance with Section 2, Article XVII of the 1987 Constitution.
First, a flashback of the proceedings of yesteryears. In 1996, the Movement for Peoples Initiative sought to exercise the
sovereign peoples power to directly propose amendments to the Constitution through initiative under Section 2, Article XVII of
the 1987 Constitution. Its founding member, Atty. Jesus S. Delfin, filed with the COMELEC on December 6, 1996, a "Petition to
Amend the Constitution, to Lift Term Limits of Elective Officials, by Peoples Initiative" (Delfin Petition). It proposed to amend
Sections 4 and 7 of Article VI, Section 4 of Article VII, and Section 8 of Article X of the 1987 Constitution by deleting the
provisions on the term limits for all elective officials.
The Delfin Petition stated that the Petition for Initiative would first be submitted to the people and would be formally filed with the
COMELEC after it is signed by at least twelve per cent (12%) of the total number of registered voters in the country. It thus
sought the assistance of the COMELEC in gathering the required signatures by fixing the dates and time therefor and
setting up signature stations on the assigned dates and time. The petition prayed that the COMELEC issue an Order (1)
fixing the dates and time for signature gathering all over the country; (2) causing the publication of said Order and the petition for
initiative in newspapers of general and local circulation; and, (3) instructing the municipal election registrars in all the regions of
the Philippines to assist petitioner and the volunteers in establishing signing stations on the dates and time designated for the
purpose.
The COMELEC conducted a hearing on the Delfin Petition.
On December 18, 1996, Senator Miriam Defensor Santiago, Alexander Padilla and Maria Isabel Ongpin filed a special civil
action for prohibition before this Court, seeking to restrain the COMELEC from further considering the Delfin Petition. They
impleaded as respondents the COMELEC, Delfin, and Alberto and Carmen Pedrosa (Pedrosas) in their capacities as founding
members of the Peoples Initiative for Reforms, Modernization and Action (PIRMA) which was likewise engaged in signature
gathering to support an initiative to amend the Constitution. They argued that the constitutional provision on peoples initiative
may only be implemented by a law passed by Congress; that no such law has yet been enacted by Congress; that Republic Act
No. 6735 relied upon by Delfin does not cover the initiative to amend the Constitution; and that COMELEC Resolution No. 2300,
the implementing rules adopted by the COMELEC on the conduct of initiative, was ultra vires insofar as the initiative to amend
the Constitution was concerned. The case was docketed as G.R. No. 127325, entitled Santiago v. Commission on Elections.
3
Pending resolution of the case, the Court issued a temporary restraining order enjoining the COMELEC from proceeding with the
Delfin Petition and the Pedrosas from conducting a signature drive for peoples initiative to amend the Constitution.
On March 19, 1997, the Court rendered its decision on the petition for prohibition. The Court ruled that the constitutional
provision granting the people the power to directly amend the Constitution through initiative is not self-executory. An enabling law
is necessary to implement the exercise of the peoples right. Examining the provisions of R.A. 6735, a majority of eight (8)
members of the Court held that said law was "incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned,"
4
and thus voided portions of COMELEC Resolution
No. 2300 prescribing rules and regulations on the conduct of initiative on amendments to the Constitution. It was also held that
even if R.A. 6735 sufficiently covered the initiative to amend the Constitution and COMELEC Resolution No. 2300 was valid,
theDelfin Petition should still be dismissed as it was not the proper initiatory pleading contemplated by law. Under Section
2, Article VII of the 1987 Constitution and Section 5(b) of R.A. 6735, a petition for initiative on the Constitution must be signed by
at least twelve per cent (12%) of the total number of registered voters, of which every legislative district is represented by at least
three per cent (3%) of the registered voters therein. The Delfin Petition did not contain signatures of the required number of
voters. The decision stated:
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the
cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution,
and to have failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent against the Commission on
Elections, but is LIFTED as against private respondents.
5
Eight (8) members of the Court, namely, then Associate Justice Hilario G. Davide, Jr. (ponente), Chief Justice Andres R.
Narvasa, and Associate Justices Florenz D. Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan,
Regino C. Hermosisima, Jr. and Justo P. Torres, fully concurred in the majority opinion.
While all the members of the Court who participated in the deliberation
6
agreed that the Delfin Petition should be dismissed for
lack of the required signatures, five (5) members, namely, Associate Justices Jose A.R. Melo, Reynato S. Puno, Vicente V.
Mendoza, Ricardo J. Francisco and Artemio V. Panganiban, held that R.A. 6735 was sufficient and adequate to implement the
peoples right to amend the Constitution through initiative, and that COMELEC Resolution No. 2300 validly provided the details
for the actual exercise of such right. Justice Jose C. Vitug, on the other hand, opined that the Court should confine itself to
resolving the issue of whether the Delfin Petition sufficiently complied with the requirements of the law on initiative, and there
was no need to rule on the adequacy of R.A. 6735.
The COMELEC, Delfin and the Pedrosas filed separate motions for reconsideration of the Courts decision.
After deliberating on the motions for reconsideration, six (6)
7
of the eight (8) majority members maintained their position that
R.A. 6735 was inadequate to implement the provision on the initiative on amendments to the Constitution. Justice Torres filed an
inhibition, while Justice Hermosisima submitted a Separate Opinion adopting the position of the minority that R.A. 6735
sufficiently covers the initiative to amend the Constitution. Hence, of the thirteen (13) members of the Court who participated in
the deliberation, six (6) members, namely, Chief Justice Narvasa and Associate Justices Regalado, Davide, Romero, Bellosillo
and Kapunan voted to deny the motions for lack of merit; and six (6) members, namely, Associate Justices Melo, Puno,
Mendoza, Francisco, Hermosisima and Panganiban voted to grant the same. Justice Vitug maintained his opinion that the matter
was not ripe for judicial adjudication. The motions for reconsideration were therefore denied for lack of sufficient votes to modify
or reverse the decision of March 19, 1997.
8
On June 23, 1997, PIRMA filed with the COMELEC a Petition for Initiative to Propose Amendments to the Constitution (PIRMA
Petition). The PIRMA Petition was supported by around five (5) million signatures in compliance with R.A. 6735 and COMELEC
Resolution No. 2300, and prayed that the COMELEC, among others: (1) cause the publication of the petition in Filipino and
English at least twice in newspapers of general and local circulation; (2) order all election officers to verify the signatures
collected in support of the petition and submit these to the Commission; and (3) set the holding of a plebiscite where the following
proposition would be submitted to the people for ratification:
Do you approve amendments to the 1987 Constitution giving the President the chance to be reelected for another term,
similarly with the Vice-President, so that both the highest officials of the land can serve for two consecutive terms of six
years each, and also to lift the term limits for all other elective government officials, thus giving Filipino voters the freedom
of choice, amending for that purpose, Section 4 of Article VII, Sections 4 and 7 of Article VI and Section 8 of Article X,
respectively?
The COMELEC dismissed the PIRMA Petition in view of the permanent restraining order issued by the Court in Santiago v.
COMELEC.
PIRMA filed with this Court a Petition for Mandamus and Certiorari seeking to set aside the COMELEC Resolution dismissing
its petition for initiative. PIRMA argued that the Courts decision on the Delfin Petition did not bar the COMELEC from acting on
the PIRMA Petition as said ruling was not definitive based on the deadlocked voting on the motions for reconsideration, and
because there was no identity of parties and subject matter between the two petitions. PIRMA also urged the Court to reexamine
its ruling in Santiago v. COMELEC.
The Court dismissed the petition for mandamus and certiorari in its resolution dated September 23, 1997. It explained:
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
Decision of this Court in G.R. No. 127325 promulgated on March 19, 1997, and its Resolution of June 10, 1997.
The Court next considered the question of whether there was need to resolve the second issue posed by the petitioners,
namely, that the Court re-examine its ruling as regards R.A. 6735. On this issue, the Chief Justice and six (6) other
members of the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no
need to take it up. Vitug, J., agreed that there was no need for re-examination of said second issue since the case at bar
is not the proper vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno, Francisco,
Hermosisima, and Panganiban, JJ., opined that there was a need for such a re-examination x x x x
9
In their Separate Opinions, Justice (later Chief Justice) Davide and Justice Bellosillo stated that the PIRMA petition was
dismissed on the ground of res judicata.
Now, almost a decade later, another group, Sigaw ng Bayan, seeks to utilize anew the system of initiative to amend the
Constitution, this time to change the form of government from bicameral-presidential to unicameral-parliamentary system.
Let us look at the facts of the petition at bar with clear eyes.
On February 15, 2006, Sigaw ng Bayan, in coordination with Union of Local Authorities of the Philippines(ULAP), embarked on
a nationwide drive to gather signatures to support the move to adopt the parliamentary form of government in the country through
charter change. They proposed to amend the Constitution as follows:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:
Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be
composed of as many members as may be provided by law, to be apportioned among the provinces,
representative districts, and cities in accordance with the number of their respective inhabitants, with at least
three hundred thousand inhabitants per district, and on the basis of a uniform and progressive ratio. Each district
shall comprise, as far as practicable, contiguous, compact and adjacent territory, and each province must have at
least one member.
(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on
the day of the election, a resident of his district for at least one year prior thereto, and shall be elected by the
qualified voters of his district for a term of five years without limitation as to the number thereof, except those
under the party-list system which shall be provided for by law and whose number shall be equal to twenty per
centum of the total membership coming from the parliamentary districts.
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows:
Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by
a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the
Members of Parliament from among themselves. He shall be responsible to the Parliament for the program of
government.
C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-
Parliamentary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions," which
shall read, as follows:
Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on
the thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless
impeached by a vote of two thirds of all the members of the interim parliament.
(2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the
incumbent Vice President shall succeed as President. In case of death, permanent disability, resignation or
removal from office of both the incumbent President and Vice President, the interim Prime Minister shall assume
all the powers and responsibilities of Prime Minister under Article VII as amended.
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; provided, however, that any and all references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be changed to read "Parliament;" that any and all references
therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be
changed to read as "Member(s) of Parliament" and any and all references to the "President" and/or "Acting
President" shall be changed to read "Prime Minister."
Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the exception of
Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended and Sections 7, 8, 9, 10,
11 and 12 which are hereby deleted, all other Sections of Article VII shall be retained and renumbered
sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which
case they shall be deemed amended so as to conform to a unicameral Parliamentary System of government;
provided, however, that any all references therein to "Congress," "Senate," "House of Representatives" and
"Houses of Congress" shall be changed to read "Parliament;" that any and all references therein to "Member(s) of
Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be changed to read as "Member(s)
of Parliament" and any and all references to the "President" and or "Acting President" shall be changed to read
"Prime Minister."
Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall
continue until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be
composed of the incumbent Members of the Senate and the House of Representatives and the incumbent
Members of the Cabinet who are heads of executive departments.
(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of
June 2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the
interim Parliament and shall preside over its sessions for the election of the interim Prime Minister and until the
Speaker shall have been elected by a majority vote of all the members of the interim Parliament from among
themselves.
(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of
June 2010.
(4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization
and a strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of
the interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof.
The interim Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities
as may be delegated to him by the incumbent President."
(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. The duly elected Prime
Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime
Minister until the expiration of the term of the incumbent President and Vice President.
10
Sigaw ng Bayan prepared signature sheets, on the upper portions of which were written the abstract of the proposed
amendments, to wit:
Abstract: 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?
The signature sheets were distributed nationwide to affiliated non-government organizations and volunteers of Sigaw ng Bayan,
as well as to the local officials. Copies of the draft petition for initiative containing the proposition were also circulated to the local
officials and multi-sectoral groups.
Sigaw ng Bayan alleged that it also held barangay assemblies which culminated on March 24, 25 and 26, 2006, to inform the
people and explain to them the proposed amendments to the Constitution. Thereafter, they circulated the signature sheets for
signing.
The signature sheets were then submitted to the local election officers for verification based on the voters registration
record. Upon completion of the verification process, the respective local election officers issued certifications to attest that
the signature sheets have been verified. The verified signature sheets were subsequently transmitted to the office of Sigaw ng
Bayan for the counting of the signatures.
On August 25, 2006, herein petitioners Raul L. Lambino and Erico B. Aumentado filed with the COMELEC a Petition for Initiative
to Amend the Constitution entitled "In the Matter of Proposing Amendments to the 1987 Constitution through a Peoples Initiative:
A Shift from a Bicameral Presidential to a Unicameral Parliamentary Government by Amending Articles VI and VII; and Providing
Transitory Provisions for the Orderly Shift from the Presidential to the Parliamentary System." They filed an Amended Petition on
August 30, 2006 to reflect the text of the proposed amendment that was actually presented to the people. They alleged that they
were filing the petition in their own behalf and together with some 6.3 million registered voters who have affixed their signatures
on the signature sheets attached thereto. Petitioners appended to the petition signature sheets bearing the signatures of
registered voters which they claimed to have been verified by the respective city or municipal election officers, and allegedly
constituting at least twelve per cent (12%) of all registered voters in the country, wherein each legislative district is represented
by at least three per cent (3%) of all the registered voters therein.
As basis for the filing of their petition for initiative, petitioners averred that Section 5 (b) and (c), together with Section 7 of
R.A. 6735, provide sufficient enabling details for the peoples exercise of the power. Hence, petitioners prayed that the
COMELEC issue an Order:
1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution;
2. Directing the publication of the petition in Filipino and English at least twice in newspapers of general and local
circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by the COMELEC of
the sufficiency of the petition, to allow the Filipino people to express their sovereign will on the proposition.
Several groups filed with the COMELEC their respective oppositions to the petition for initiative, among them
ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and
Carlos P. Medina, Jr.; Alternative Law Groups, Inc., Senate Minority Leader Aquilino Q. Pimentel, Jr., Senators Sergio Osmea
III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives
Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; Bayan, Kilusang Mayo Uno, Ecumenical
Bishops Forum, Migrante, Gabriela, Gabriela Womens Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo
Pineda, Drs. Darby Santiago and Reginald Pamugas; Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma.
Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong.
On August 31, 2006, the COMELEC denied due course to the Petition for Initiative. It cited this Courts ruling in Santiago v.
COMELEC
11
permanently enjoining the Commission from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the
system.
Forthwith, petitioners filed with this Court the instant Petition for Certiorari and Mandamus praying that the Court set aside the
August 31, 2006 resolution of the COMELEC, direct respondent COMELEC to comply with Section 4, Article XVII of the
Constitution, and set the date of the plebiscite. They state the following grounds in support of the petition:
I.
The Honorable public respondent COMELEC committed grave abuse of discretion in refusing to take cognizance of, and
to give due course to the petition for initiative, because the cited Santiago ruling of 19 March 1997 cannot be considered
the majority opinion of the Supreme Court en banc, considering that upon its reconsideration and final voting on 10 June
1997, no majority vote was secured to declare Republic Act No. 6735 as inadequate, incomplete and insufficient in
standard.
II.
The 1987 Constitution, Republic Act No. 6735, Republic Act No. 8189 and existing appropriation of the COMELEC
provide for sufficient details and authority for the exercise of peoples initiative, thus, existing laws taken together are
adequate and complete.
III.
The Honorable public respondent COMELEC committed grave abuse of discretion in refusing to take cognizance of, and
in refusing to give due course to the petition for initiative, thereby violating an express constitutional mandate and
disregarding and contravening the will of the people.
A.
Assuming in arguendo that there is no enabling law, respondent COMELEC cannot ignore the will of the
sovereign people and must accordingly act on the petition for initiative.
1.
The framers of the Constitution intended to give the people the power to propose amendments and the
people themselves are now giving vibrant life to this constitutional provision.
2.
Prior to the questioned Santiago ruling of 19 March 1997, the right of the people to exercise the sovereign
power of initiative and recall has been invariably upheld.
3.
The exercise of the initiative to propose amendments is a political question which shall be determined
solely by the sovereign people.
4.
By signing the signature sheets attached to the petition for initiative duly verified by the election officers,
the people have chosen to perform this sacred exercise of their sovereign power.
B.
The Santiago ruling of 19 March 1997 is not applicable to the instant petition for initiative filed by the petitioners.
C.
The permanent injunction issued in Santiago vs. COMELEC only applies to the Delfin petition.
1.
It is the dispositive portion of the decision and not other statements in the body of the decision that
governs the rights in controversy.
IV.
The Honorable public respondent failed or neglected to act or perform a duty mandated by law.
A.
The ministerial duty of the COMELEC is to set the initiative for plebiscite.
12
The oppositors-intervenors, ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa,
Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Bayan, Kilusang Mayo Uno, Ecumenical Bishops
Forum, Migrante Gabriela, Gabriela Womens Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda,
Dr. Darby Santiago, and Dr. Reginald Pamugas; Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio Osmea
III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives
Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; and Attys. Pete Quirino-Quadra, Jose
Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong moved to
intervene in this case and filed their respective Oppositions/Comments-in-Intervention.
The Philippine Constitution Association, Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin
T. Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; the Integrated Bar of the Philippines Cebu City and Cebu Province
Chapters; former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino; and the Senate of the Philippines,
represented by Senate President Manuel Villar, Jr., also filed their respective motions for intervention and Comments-in-
Intervention.
The Trade Union Congress of the Philippines, Sulongbayan Movement Foundation, Inc., Ronald L. Adamat, Rolando Manuel
Rivera, Ruelo Baya, Philippine Transport and General Workers Organization, and Victorino F. Balais likewise moved to intervene
and submitted to the Court a Petition-in-Intervention. All interventions and oppositions were granted by the Court.
The oppositors-intervenors essentially submit that the COMELEC did not commit grave abuse of discretion in denying due
course to the petition for initiative as it merely followed this Courts ruling in Santiago v. COMELECas affirmed in the case
of PIRMA v. COMELEC, based on the principle of stare decisis; that there is no sufficient law providing for the authority and the
details for the exercise of peoples initiative to amend the Constitution; that the proposed changes to the Constitution are actually
revisions, not mere amendments; that the petition for initiative does not meet the required number of signatories under Section 2,
Article XVII of the 1987 Constitution; that it was not shown that the people have been informed of the proposed amendments as
there was disparity between the proposal presented to them and the proposed amendments attached to the petition for initiative,
if indeed there was; that the verification process was done ex parte, thus rendering dubious the signatures attached to the
petition for initiative; and that petitioners Lambino and Aumentado have no legal capacity to represent the signatories in the
petition for initiative.
The Office of the Solicitor General (OSG), in compliance with the Courts resolution of September 5, 2006, filed its Comment to
the petition. Affirming the position of the petitioners, the OSG prayed that the Court grant the petition at bar and render judgment:
(1) declaring R.A. 6735 as adequate to cover or as reasonably sufficient to implement the system of initiative on amendments to
the Constitution and as having provided sufficient standards for subordinate legislation; (2) declaring as valid the provisions of
COMELEC Resolution No. 2300 on the conduct of initiative or amendments to the Constitution; (3) setting aside the assailed
resolution of the COMELEC for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction;
and, (4) directing the COMELEC to grant the petition for initiative and set the corresponding plebiscite pursuant to R.A. 6735,
COMELEC Resolution No. 2300, and other pertinent election laws and regulations.
The COMELEC filed its own Comment stating that its resolution denying the petition for initiative is not tainted with grave abuse
of discretion as it merely adhered to the ruling of this Court in Santiago v. COMELEC which declared that R.A. 6735 does not
adequately implement the constitutional provision on initiative to amend the Constitution. It invoked the permanent injunction
issued by the Court against the COMELEC from taking cognizance of petitions for initiative on amendments to the Constitution
until a valid enabling law shall have been passed by Congress. It asserted that the permanent injunction covers not only the
Delfin Petition, but also all other petitions involving constitutional initiatives.
On September 26, 2006, the Court heard the case. The parties were required to argue on the following issues:
13
1. Whether petitioners Lambino and Aumentado are proper parties to file the present Petition in behalf of the more than
six million voters who allegedly signed the proposal to amend the Constitution.
2. Whether the Petitions for Initiative filed before the Commission on Elections complied with Section 2, Article XVII of the
Constitution.
3. Whether the Courts decision in Santiago v. COMELEC (G.R. No. 127325, March 19, 1997) bars the present petition.
4. Whether the Court should re-examine the ruling in Santiago v. COMELEC that there is no sufficient law implementing
or authorizing the exercise of peoples initiative to amend the Constitution.
5. Assuming R.A. 6735 is sufficient, whether the Petitions for Initiative filed with the COMELEC have complied with its
provisions.
5.1 Whether the said petitions are sufficient in form and substance.
5.2 Whether the proposed changes embrace more than one subject matter.
6. Whether the proposed changes constitute an amendment or revision of the Constitution.
6.1 Whether the proposed changes are the proper subject of an initiative.
7. Whether the exercise of an initiative to propose amendments to the Constitution is a political question to be determined
solely by the sovereign people.
8. Whether the Commission on Elections committed grave abuse of discretion in dismissing the Petitions for Initiative filed
before it.
With humility, I offer the following views to these issues as profiled:
I
Petitioners Lambino and Aumentado are proper parties to file the present Petition in behalf of the more than six
million voters who allegedly signed the proposal to amend the Constitution.
Oppositors-intervenors contend that petitioners Lambino and Aumentado are not the proper parties to file the instant petition as
they were not authorized by the signatories in the petition for initiative.
The argument deserves scant attention. The Constitution requires that the petition for initiative should be filed by at least twelve
per cent (12%) of all registered voters, of which every legislative district must be represented by at least three per cent (3%) of all
the registered voters therein. The petition for initiative filed by Lambino and Aumentado before the COMELEC was accompanied
by voluminous signature sheets which prima facie show the intent of the signatories to support the filing of said petition. Stated
above their signatures in the signature sheets is the following:
x x x My signature herein which shall form part of the petition for initiative to amend the Constitution signifies my support
for the filing thereof.
14
There is thus no need for the more than six (6) million signatories to execute separate documents to authorize petitioners to file
the petition for initiative in their behalf.
Neither is it necessary for said signatories to authorize Lambino and Aumentado to file the petition for certiorari and mandamus
before this Court. Rule 65 of the 1997 Rules of Civil Procedure provides who may file a petition for certiorari and mandamus.
Sections 1 and 3 of Rule 65 read:
SECTION 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court x x x x.
SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station x x x and there
is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court x x x x.
Thus, any person aggrieved by the act or inaction of the respondent tribunal, board or officer may file a petition for certiorari or
mandamus before the appropriate court. Certainly, Lambino and Aumentado, as among the proponents of the petition for
initiative dismissed by the COMELEC, have the standing to file the petition at bar.
II
The doctrine of stare decisis does not bar the reexamination of Santiago.
The latin phrase stare decisis et non quieta movere means "stand by the thing and do not disturb the calm." The doctrine
started with the English Courts.
15
Blackstone observed that at the beginning of the 18
th
century, "it is an established rule to
abide by former precedents where the same points come again in litigation."
16
As the rule evolved, early limits to its application
were recognized: (1) it would not be followed if it were "plainly unreasonable;" (2) where courts of equal authority developed
conflicting decisions; and, (3) the binding force of the decision was the "actual principle or principles necessary for the decision;
not the words or reasoning used to reach the decision."
17
The doctrine migrated to the United States. It was recognized by the framers of the U.S. Constitution.
18
According to Hamilton,
"strict rules and precedents" are necessary to prevent "arbitrary discretion in the courts."
19
Madison agreed but stressed that "x x
x once the precedent ventures into the realm of altering or repealing the law, it should be rejected."
20
Prof. Consovoy well
noted that Hamilton and Madison "disagreeabout the countervailing policy considerations that would allow a judge to abandon a
precedent."
21
He added that their ideas "reveal a deep internal conflict between the concreteness required by the rule of law and
the flexibility demanded in error correction. It is this internal conflict that the Supreme Court has attempted to deal with for
over two centuries."
22
Indeed, two centuries of American case law will confirm Prof. Consovoys observation although stare decisisdeveloped its own
life in the United States. Two strains of stare decisis have been isolated by legal scholars.
23
The first, known as vertical stare
decisis deals with the duty of lower courts to apply the decisions of thehigher courts to cases involving the same facts. The
second, known as horizontal stare decisis requires thathigh courts must follow its own precedents. Prof. Consovoy
correctly observes that vertical stare decisishas been viewed as an obligation, while horizontal stare decisis, has been viewed
as a policy, imposing choice but not a command.
24
Indeed, stare decisis is not one of the precepts set in stone in our
Constitution.
It is also instructive to distinguish the two kinds of horizontal stare decisis constitutional stare decisis andstatutory stare
decisis.
25
Constitutional stare decisis involves judicial interpretations of the Constitution whilestatutory stare decisis involves
interpretations of statutes. The distinction is important for courts enjoy more flexibility in refusing to apply stare decisis in
constitutional litigations. Justice Brandeis view on the binding effect of the doctrine in constitutional litigations still holds sway
today. In soothing prose, Brandeis stated: "Stare decisis is not . . . a universal and inexorable command. The rule of stare
decisis is not inflexible. Whether it shall be followed or departed from, is a question entirely within the discretion of the court,
which is again called upon to consider a question once decided."
26
In the same vein, the venerable Justice Frankfurteropined:
"the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it."
27
In contrast, the
application of stare decisis on judicial interpretation of statutes is more inflexible. AsJustice Stevens explains: "after a statute
has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies, it acquires a
meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself."
28
This stance reflects both
respect for Congress role and the need to preserve the courts limited resources.
In general, courts follow the stare decisis rule for an ensemble of reasons,
29
viz: (1) it legitimizes judicial institutions; (2) it
promotes judicial economy; and, (3) it allows for predictability. Contrariwise, courts refuse to be bound by the stare
decisis rule where
30
(1) its application perpetuates illegitimate and unconstitutional holdings; (2) it cannot accommodate
changing social and political understandings; (3) it leaves the power to overturn bad constitutional law solely in the hands of
Congress; and, (4) activist judges can dictate the policy for future courts while judges that respect stare decisis are stuck
agreeing with them.
In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and reversed its decisions in 192
cases.
31
The most famous of these reversals is Brown v. Board of Education
32
which junkedPlessy v. Fergusons
33
"separate
but equal doctrine." Plessy upheld as constitutional a state law requirement that races be segregated on public transportation.
In Brown, the U.S. Supreme Court, unanimously held that "separate . . . is inherently unequal." Thus, by freeing itself from the
shackles of stare decisis, the U.S. Supreme Court freed the colored Americans from the chains of inequality. In the Philippine
setting, this Court has likewise refused to be straitjacketed by the stare decisis rule in order to promote public welfare. In La
Bugal-Blaan Tribal Association, Inc. v. Ramos,
34
we reversed our original ruling that certain provisions of the Mining Law are
unconstitutional. Similarly, in Secretary of Justice v. Lantion,
35
we overturned our first ruling and held, on motion for
reconsideration, that a private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition
process.
An examination of decisions on stare decisis in major countries will show that courts are agreed on the factors that
should be considered before overturning prior rulings. These are workability, reliance, intervening developments in the
law and changes in fact. In addition, courts put in the balance the following determinants: closeness of the voting, age
of the prior decision and its merits.
36
The leading case in deciding whether a court should follow the stare decisis rule in constitutional litigations isPlanned
Parenthood v. Casey.
37
It established a 4-pronged test. The court should (1) determine whether the rule has proved to
be intolerable simply in defying practical workability; (2) consider whether the rule is subject to a kind of reliance that would lend
a special hardship to the consequences of overruling and add inequity to the cost of repudiation; (3) determine whether related
principles of law have so far developed as to have the old rule no more than a remnant of an abandoned doctrine; and, (4)
find out whether facts have so changed or come to be seen differently, as to have robbed the old rule of significant application
or justification.
Following these guidelines, I submit that the stare decisis rule should not bar the reexamination of Santiago. On the
factor of intolerability, the six (6) justices in Santiago held R.A. 6735 to be insufficient as it provided no standard to guide
COMELEC in issuing its implementing rules. The Santiago ruling that R.A. 6735 is insufficient but without striking it down as
unconstitutional is an intolerable aberration, the only one of its kind in our planet. It improperly assails the ability of legislators to
write laws. It usurps the exclusive right of legislators to determine how far laws implementing constitutional mandates should be
crafted. It is elementary that courts cannot dictate on Congress the style of writing good laws, anymore than Congress can tell
courts how to write literate decisions. The doctrine of separation of powers forbids this Court to invade the exclusive lawmaking
domain of Congress for courts can construe laws but cannot construct them. The end result of the ruling of the six (6)
justices that R.A. 6735 is insufficient is intolerable for it rendered lifeless the sovereign right of the people to amend the
Constitution via an initiative.
On the factor of reliance, the ruling of the six (6) justices in Santiago did not induce any expectation from the people. On the
contrary, the ruling smothered the hope of the people that they could amend the Constitution by direct action. Moreover, reliance
is a non-factor in the case at bar for it is more appropriate to consider in decisions involving contracts where private rights are
adjudicated. The case at bar involves no private rights but the sovereignty of the people.
On the factor of changes in law and in facts, certain realities on ground cannot be blinked away. The urgent need to adjust
certain provisions of the 1987 Constitution to enable the country to compete in the new millennium is given. The only point of
contention is the mode to effect the change - - - whether through constituent assembly, constitutional convention or peoples
initiative. Petitioners claim that they have gathered over six (6) million registered voters who want to amend the Constitution
through peoples initiative and that their signatures have been verified by registrars of the COMELEC. The six (6) justices who
ruled that R.A. 6735 is insufficient to implement the direct right of the people to amend the Constitution through an
initiative cannot waylay the will of 6.3 million people who are the bearers of our sovereignty and from whom all
government authority emanates. New developments in our internal and external social, economic, and political settings
demand the reexamination of the Santiago case. The stare decisis rule is no reason for this Court to allow the people to
step into the future with a blindfold.
III
A reexamination of R.A. 6735 will show that it is sufficient to implement the peoples initiative.
Let us reexamine the validity of the view of the six (6) justices that R.A. 6735 is insufficient to implement Section 2, Article XVII of
the 1987 Constitution allowing amendments to the Constitution to be directly proposed by the people through initiative.
When laws are challenged as unconstitutional, courts are counseled to give life to the intent of legislators. In enacting R.A. 6735,
it is daylight luminous that Congress intended the said law to implement the right of the people, thru initiative, to propose
amendments to the Constitution by direct action. This all-important intent is palpable from the following:
First. The text of R.A. 6735 is replete with references to the right of the people to initiate changes to the Constitution:
The policy statement declares:
Sec. 2. Statement of Policy. -- The power of the people under a system of initiative and referendum to directly propose,
enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative
body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (emphasis
supplied)
It defines "initiative" as "the power of the people to propose amendments to the Constitution or to propose and enact
legislations through an election called for the purpose," and "plebiscite" as "the electoral process by which an initiative on
the Constitution is approved or rejected by the people."
It provides the requirements for a petition for initiative to amend the Constitution, viz:
(1) That "(a) petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total
number of registered voters as signatories, of which every legislative district must be represented by at least three per
centum (3%) of the registered voters therein;"
38
and
(2) That "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987
Constitution and only once every five (5) years thereafter."
39
It fixes the effectivity date of the amendment under Section 9(b) which provides that "(t)he proposition in an initiative on the
Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite."
Second. The legislative history of R.A. 6735 also reveals the clear intent of the lawmakers to use it as the instrument to
implement peoples initiative. No less than former Chief Justice Hilario G. Davide, Jr., the ponentein Santiago, concedes:
40
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the
Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17 x x x x The Bicameral Conference
Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved
on 8 June 1989 by the Senate and by the House of Representatives. This approved bill is now R.A. No. 6735.
Third. The sponsorship speeches by the authors of R.A. 6735 similarly demonstrate beyond doubt this intent. In his sponsorship
remarks, the late Senator Raul Roco (then a Member of the House of Representatives) emphasized the intent to make initiative
as a mode whereby the people can propose amendments to the Constitution. We quote his relevant remarks:
41
SPONSORSHIP REMAKRS OF REP. ROCO
MR. ROCO. Mr. Speaker, with the permission of the committee, we wish to speak in support of House Bill No. 497,
entitled: INITIATIVE AND REFERENDUM ACT OF 1987, which later on may be called Initiative and Referendum Act of
1989.
As a background, we want to point out the constitutional basis of this particular bill. The grant of plenary legislative power
upon the Philippine Congress by the 1935, 1973 and 1987 Constitutions, Mr. Speaker, was based on the principle that
any power deemed to be legislative by usage and tradition is necessarily possessed by the Philippine Congress unless
the Organic Act has lodged it elsewhere. This was a citation from Vera vs. Avelino (1946).
The presidential system introduced by the 1935 Constitution saw the application of the principle of separation of powers.
While under the parliamentary system of the 1973 Constitution the principle remained applicable, Amendment 6 or the
1981 amendments to the 1973 Constitution ensured presidential dominance over the Batasang Pambansa.
Our constitutional history saw the shifting and sharing of legislative power between the legislature and the executive.
Transcending such changes in the exercise of legislative power is the declaration in the Philippine Constitution that he
Philippines is a Republican State where sovereignty resides in the people and all government authority emanates from
them.
In a Republic, Mr. Speaker, the power to govern is vested in its citizens participating through the right of suffrage and
indicating thereby their choice of lawmakers.
Under the 1987 Constitution, lawmaking power is still preserved in Congress. However, to institutionalize direct action of
the people as exemplified in the 1986 Revolution, there is a practical recognition of what we refer to as peoples
sovereign power. This is the recognition of a system of initiative and referendum.
Section 1, Article VI of the 1987 Constitution provides, and I quote:
The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and
House of Representatives, except to the extent reserved to the people by the provision on initiative and
referendum.
In other words, Mr. Speaker, under the 1987 Constitution, Congress does not have plenary powers. There is a reserved
legislative power given to the people expressly.
Section 32, the implementing provision of the same article of the Constitution provides, and I quote:
The Congress shall, as early as possible, 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 act or law or part
thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at
least ten per centum of the total number of registered voters, or which every legislative district must be
represented by at least three per centum of the registered voters thereof.
In other words, Mr. Speaker, in Section 1 of Article VI which describes legislative power, there are reserved powers given
to the people. In Section 32, we are specifically told to pass at the soonest possible time a bill on referendum and
initiative. We are specifically mandated to share the legislative powers of Congress with the people.
Of course, another applicable provision in the Constitution is Section 2, Article XVII, Mr. Speaker. Under the provision on
amending the Constitution, the section reads, and I quote:
Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district
must be represented by at least three per centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of this Constitution nor oftener than once
every five years thereafter.
We in Congress therefore, Mr. Speaker, are charged with the duty to implement the exercise by the people of the right of
initiative and referendum.
House Bill No. 21505, as reported out by the Committee on Suffrage and Electoral Reforms last December 14, 1988, Mr.
Speaker, is the response to such a constitutional duty.
Mr. Speaker, if only to allay apprehensions, allow me to show where initiative and referendum under Philippine law has
occurred.
Mr. Speaker, the system of initiative and referendum is not new. In a very limited extent, the system is provided for in our
Local Government Code today. On initiative, for instance, Section 99 of the said code vests in the barangay assembly the
power to initiate legislative processes, to hold plebiscites and to hear reports of the sangguniang barangay. There are
variations of initiative and referendum. The barangay assembly is composed of all persons who have been actual
residents of the barangay for at least six months, who are at least 15 years of age and citizens of the Philippines. The
holding of barangay plebiscites and referendum is also provided in Sections 100 and 101 of the same Code.
Mr. Speaker, for brevity I will not read the pertinent quotations but will just submit the same to the Secretary to be
incorporated as part of my speech.
To continue, Mr. Speaker these same principles are extensively applied by the Local Government Code as it is now
mandated by the 1987 Constitution.
In other jurisdictions, Mr. Speaker, we have ample examples of initiative and referendum similar to what is now contained
in House Bill No. 21505. As in the 1987 Constitutions and House Bill No. 21505, the various constitutions of the states in
the United States recognize the right of registered voters to initiate the enactment of any statute or to reject any existing
law or parts thereof in a referendum. These states are Alaska, Alabama, Montana, Massachusetts, Dakota, Oklahoma,
Oregon, and practically all other states.
In certain American states, the kind of laws to which initiative and referendum applies is also without ay limitation, except
for emergency measures, which is likewise incorporated in Section 7(b) of House Bill No. 21505.
The procedure provided by the House bill from the filing of the petition, the requirement of a certain percentage of
supporters to present a proposition to submission to electors is substantially similar to those of many American laws.
Mr. Speaker, those among us who may have been in the United States, particularly in California, during election time or
last November during the election would have noticed different propositions posted in the city walls. They were
propositions submitted by the people for incorporation during the voting. These were in the nature of initiative, Mr.
Speaker.
Although an infant then in Philippine political structure, initiative and referendum is a tried and tested system in other
jurisdictions, and House Bill No. 21505 through the various consolidated bills is patterned after American experience in a
great respect.
What does the bill essentially say, Mr. Speaker? Allow me to try to bring our colleagues slowly through the bill. The bill
has basically only 12 sections. The constitutional Commissioners, Mr. Speaker, saw this system of initiative and
referendum as an instrument which can be used should the legislature show itself indifferent to the needs of the people.
That is why, Mr. Speaker, it may be timely, since we seem to be amply criticized, as regards our responsiveness, to pass
this bill on referendum and initiative now. While indifference would not be an appropriate term to use at this time, and
surely it is not the case although we are so criticized, one must note that it is a felt necessity of our times that laws need
to be proposed and adopted at the soonest possible time to spur economic development, safeguard individual rights and
liberties, and share governmental power with the people.
With the legislative powers of the President gone, we alone, together with the Senators when they are minded to agree
with us, are left with the burden of enacting the needed legislation.
Let me now bring our colleagues, Mr. Speaker, to the process advocated by the bill.
First, initiative and referendum, Mr. Speaker, is defined. Initiative essentially is what the term connotes. It means that the
people, on their own political judgment, submit fore the consideration and voting of the general electorate a bill or a piece
of legislation.
Under House Bill No. 21505, there are three kinds of initiative. One is an initiative to amend the Constitution. This can
occur once every five years. Another is an initiative to amend statutes that we may have approved. Had this bill been an
existing law, Mr. Speaker, it is most likely that an overwhelming majority of the barangays in the Philippines would have
approved by initiative the matter of direct voting.
The third mode of initiative, Mr. Speaker, refers to a petition proposing to enact regional, provincial, city, municipal or
barangay laws or ordinances. It comes from the people and it must be submitted directly to the electorate. The bill gives a
definite procedure and allows the COMELEC to define rules and regulations to give teeth to the power of initiative.
On the other hand, referendum, Mr. Speaker, is the power of the people to approve or reject something that Congress
has already approved.
For instance, Mr. Speaker, when we divide the municipalities or the barangays into two or three, we must first get the
consent of the people affected through plebiscite or referendum.
Referendum is a mode of plebiscite, Mr. Speaker. However, referendum can also be petitioned by the people if, for
instance, they do not life the bill on direct elections and it is approved subsequently by the Senate. If this bill had already
become a law, then the people could petition that a referendum be conducted so that the acts of Congress can be
appropriately approved or rebuffed.
The initial stage, Mr. Speaker, is what we call the petition. As envisioned in the bill, the initiative comes from the people,
from registered voters of the country, by presenting a proposition so that the people can then submit a petition, which is a
piece of paper that contains the proposition. The proposition in the example I have been citing is whether there should be
direct elections during the barangay elections. So the petition must be filed in the appropriate agency and the proposition
must be clear stated. It can be tedious but that is how an effort to have direct democracy operates.
Section 4 of the bill gives requirements, Mr. Speaker. It will not be all that easy to have referendum or initiative petitioned
by the people. Under Section 4 of the committee report, we are given certain limitations. For instance, to exercise the
power of initiative or referendum, at least 10 percent of the total number of registered voters, of which every legislative
district is represented by at least 3 percent of the registered voters thereof, shall sign a petition. These numbers, Mr.
Speaker, are not taken from the air. They are mandated by the Constitution. There must be a requirement of 10 percent
for ordinary laws and 3 percent representing all districts. The same requirement is mutatis mutandis or appropriately
modified and applied to the different sections. So if it is, for instance, a petition on initiative or referendum for a barangay,
there is a 10 percent or a certain number required of the voters of the barangay. If it is for a district, there is also a certain
number required of all towns of the district that must seek the petition. If it is for a province then again a certain
percentage of the provincial electors is required. All these are based with reference to the constitutional mandate.
The conduct of the initiative and referendum shall be supervised and shall be upon the call of the Commission on
Elections. However, within a period of 30 days from receipt of the petition, the COMELEC shall determine the sufficiency
of the petition, publish the same and set the date of the referendum which shall not be earlier than 45 days but not later
than 90 days from the determination by the commission of the sufficiency of the petition. Why is this so, Mr. Speaker?
The petition must first be determined by the commission as to its sufficiency because our Constitution requires that no bill
can be approved unless it contains one subject matter. It is conceivable that in the fervor of an initiative or referendum,
Mr. Speaker, there may be more than two topics sought to be approved and that cannot be allowed. In fact, that is one of
the prohibitions under this referendum and initiative bill. When a matter under initiative or referendum is approved by the
required number of votes, Mr. Speaker, it shall become effective 15 days following the completion of its publication in
the Official Gazette. Effectively then, Mr. Speaker, all the bill seeks to do is to enlarge and recognize the legislative
powers of the Filipino people.
Mr. Speaker, I think this Congress, particularly this House, cannot ignore or cannot be insensitive to the call for initiative
and referendum. We should have done it in 1987 but that is past. Maybe we should have done it in 1988 but that too had
already passed, but it is only February 1989, Mr. Speaker, and we have enough time this year at least to respond to the
need of our people to participate directly in the work of legislation.
For these reasons, Mr. Speaker, we urge and implore our colleagues to approve House Bill No. 21505 as incorporated in
Committee Report No. 423 of the Committee on Suffrage and Electoral Reforms.
In closing, Mr. Speaker, I also request that the prepared text of my speech, together with the footnotes since they contain
many references to statutory history and foreign jurisdiction, be reproduced as part of the Record for future purposes.
Equally unequivocal on the intent of R.A. 6735 is the sponsorship speech of former Representative Salvador Escudero
III, viz:
42
SPONSORSHIP REMARKS OF REP. ESCUDERO
MR. ESCUDERO. Thank you, Mr. Speaker.
Mr. Speaker and my dear colleagues: Events in recent years highlighted the need to heed the clamor of the people for a
truly popular democracy. One recalls the impatience of those who actively participated in the parliament of the streets,
some of whom are now distinguished Members of this Chamber. A substantial segment of the population feel
increasingly that under the system, the people have the form but not the reality or substance of democracy because of
the increasingly elitist approach of their chosen Representatives to many questions vitally affecting their lives. There have
been complaints, not altogether unfounded, that many candidates easily forge their campaign promises to the people
once elected to office. The 1986 Constitutional Commission deemed it wise and proper to provide for a means whereby
the people can exercise the reserve power to legislate or propose amendments to the Constitution directly in case their
chose Representatives fail to live up to their expectations. That reserve power known as initiative is explicitly recognized
in three articles and four sections of the 1987 Constitution, namely: Article VI Section 1; the same article, Section 312;
Article X, Section 3; and Article XVII, Section 2. May I request that he explicit provisions of these three articles and four
sections be made part of my sponsorship speech, Mr. Speaker.
These constitutional provisions are, however, not self-executory. There is a need for an implementing law that will give
meaning and substance to the process of initiative and referendum which are considered valuable adjuncts to
representative democracy. It is needless to state that this bill when enacted into law will probably open the door to strong
competition of the people, like pressure groups, vested interests, farmers group, labor groups, urban dwellers, the urban
poor and the like, with Congress in the field of legislation.
Such probability, however, pales in significance when we consider that through this bill we can hasten the politization of
the Filipino which in turn will aid government in forming an enlightened public opinion, and hopefully produce better and
more responsive and acceptable legislations.
Furthermore, Mr. Speaker, this would give the parliamentarians of the streets and cause-oriented groups an opportunity
to articulate their ideas in a truly democratic forum, thus, the competition which they will offer to Congress will hopefully
be a healthy one. Anyway, in an atmosphere of competition there are common interests dear to all Filipinos, and the
pursuit of each sides competitive goals can still take place in an atmosphere of reason and moderation.
Mr. Speaker and my dear colleagues, when the distinguished Gentleman from Camarines Sur and this Representation
filed our respective versions of the bill in 1987, we were hoping that the bill would be approved early enough so that our
people could immediately use the agrarian reform bill as an initial subject matter or as a take-off point.
However, in view of the very heavy agenda of the Committee on Local Government, it took sometime before the
committee could act on these. But as they say in Tagalog, huli man daw at magaling ay naihahabol din. The passage of
this bill therefore, my dear colleagues, could be one of our finest hours when we can set aside our personal and political
consideration for the greater good of our people. I therefore respectfully urge and plead that this bill be immediately
approved.
Thank you, Mr. Speaker.
We cannot dodge the duty to give effect to this intent for the "[c]ourts have the duty to interpret the law as legislated and
when possible, to honor the clear meaning of statutes as revealed by its language, purpose and history."
43
The tragedy is that while conceding this intent, the six (6) justices, nevertheless, ruled that "x x x R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned" for
the following reasons: (1) Section 2 of the Act does not suggest an initiative on amendments to the Constitution; (2) the
Act does not provide for the contents of the petition for initiative on the Constitution; and (3) while the Act provides subtitles for
National Initiative and Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided for
initiative on the Constitution.
To say the least, these alleged omissions are too weak a reason to throttle the right of the sovereign people to amend the
Constitution through initiative. R.A. 6735 clearly expressed the legislative policy for the people to propose amendments to the
Constitution by direct action. The fact that the legislature may have omitted certain details in implementing the peoples
initiative in R.A. 6735, does not justify the conclusion that, ergo, the law is insufficient. What were omitted were mere
details and not fundamental policies which Congress alone can and has determined. Implementing details of a law can be
delegated to the COMELEC and can be the subject of its rule-making power. Under Section 2(1), Article IX-C of the Constitution,
the COMELEC has the power to enforce and administer all laws and regulations relative to the conduct of initiatives. Its rule-
making power has long been recognized by this Court. In ruling R.A. 6735 insufficient but without striking it down as
unconstitutional, the six (6) justices failed to give due recognition to the indefeasible right of the sovereign people to amend the
Constitution.
IV
The proposed constitutional changes, albeit substantial, are mere amendments and can be undertaken through
peoples initiative.
Oppositors-intervenors contend that Sections 1 and 2, Article XVII of the 1987 Constitution, only allow the use of peoples
initiative to amend and not to revise the Constitution. They theorize that the changes proposed by petitioners
are substantial and thus constitute a revision which cannot be done through peoples initiative.
In support of the thesis that the Constitution bars the people from proposing substantial amendmentsamounting to revision, the
oppositors-intervenors cite the following deliberations during the Constitutional Commission, viz:
44
MR. SUAREZ: x x x x This proposal was suggested on the theory that this matter of initiative, which came about because
of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution
as embodied in Section 1. The Committee members felt that this system of initiative should not extend to the revision of
the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or
Revision.
x x x x x x x x x x x x
MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the
Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as
another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing
provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the
matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That
was the sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section
1 to include the process of revision; whereas the process of initiation to amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the Committee.
Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused the same view:
45
MR. DAVIDE. x x x x We are limiting the right of the people, by initiative, to submit a proposal for amendment only, not for
revision, only once every five years x x x x
MR. MAAMBONG. My first question: Commissioner Davides proposed amendment on line 1 refers to "amendment."
Does it 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."
Commissioner (now a distinguished Associate Justice of this Court) Adolfo S. Azcuna also clarified this point
46
-
MR. OPLE. To more closely reflect the intent of Section 2, may I suggest that we add to "Amendments" "OR REVISIONS
OF" to read: "Amendments OR REVISION OF this Constitution."
MR. AZCUNA. I think it was not allowed to revise the Constitution by initiative.
MR. OPLE. How is that again?
MR. AZCUNA. It was not our intention to allow a revision of the Constitution by initiative but merely by amendments.
MR. BENGZON. Only by amendments.
MR. AZCUNA. I remember that was taken on the floor.
MR. RODRIGO. Yes, just amendments.
The oppositors-intervenors then point out that by their proposals, petitioners will "change the very system of government from
presidential to parliamentary, and the form of the legislature from bicameral to unicameral," among others. They allegedly seek
other major revisions like the inclusion of a minimum number of inhabitants per district, a change in the period for a term of a
Member of Parliament, the removal of the limits on the number of terms, the election of a Prime Minister who shall exercise the
executive power, and so on and so forth.
47
In sum, oppositors-intervenors submit that "the proposed changes to the Constitution
effect major changes in the political structure and system, the fundamental powers and duties of the branches of the government,
the political rights of the people, and the modes by which political rights may be exercised."
48
They conclude that they are
substantial amendments which cannot be done through peoples initiative. In other words, they posit the thesis that only
simple but not substantial amendments can be done through peoples initiative.
With due respect, I disagree. To start with, the words "simple" and "substantial" are not subject to any accurate quantitative or
qualitative test. Obviously, relying on the quantitative test, oppositors-intervenors assert that the amendments will result in some
one hundred (100) changes in the Constitution. Using the same test, however, it is also arguable that petitioners seek to
change basically only two (2) out of the eighteen (18) articles of the 1987 Constitution, i.e. Article VI (Legislative Department) and
Article VII (Executive Department), together with the complementary provisions for a smooth transition from a presidential
bicameral system to a parliamentary unicameral structure. The big bulk of the 1987 Constitution will not be affected including
Articles I (National Territory), II (Declaration of Principles and State Policies), III (Bill of Rights), IV (Citizenship), V (Suffrage), VIII
(Judicial Department), IX (Constitutional Commissions), X (Local Government), XI (Accountability of Public Officers), XII (National
Economy and Patrimony), XIII (Social Justice and Human Rights), XIV (Education, Science and Technology, Arts, Culture, and
Sports), XV (The Family), XVI (General Provisions), and even XVII (Amendments or Revisions). In fine, we stand on unsafe
ground if we use simple arithmetic to determine whether the proposed changes are "simple" or "substantial."
Nor can this Court be surefooted if it applies the qualitative test to determine whether the said changes
are "simple" or "substantial" as to amount to a revision of the Constitution. The well-regarded political scientist,Garner, says
that a good constitution should contain at least three (3) sets of provisions: the constitution of liberty which sets forth the
fundamental rights of the people and imposes certain limitations on the powers of the government as a means of securing the
enjoyment of these rights; the constitution of government which deals with the framework of government and its powers, laying
down certain rules for its administration and defining the electorate; and, the constitution of sovereignty which prescribes the
mode or procedure for amending or revising the constitution.
49
It is plain that the proposed changes will basically affect only
the constitution of government. The constitutions of liberty and sovereignty remain unaffected. Indeed, the proposed
changes will not change the fundamental nature of our state as "x x x a democratic and republican state."
50
It is self-
evident that a unicameral-parliamentary form of government will not make our State any less democratic or any less republican in
character. Hence, neither will the use of the qualitative test resolve the issue of whether the proposed changes are
"simple" or "substantial."
For this reason and more, our Constitutions did not adopt any quantitative or qualitative test to determine whether an
"amendment" is "simple" or "substantial." Nor did they provide that "substantial" amendments are beyond the power of
the people to propose to change the Constitution. Instead, our Constitutions carried the traditional distinction between
"amendment" and "revision," i.e., "amendment" means change, including complex changes while "revision" means complete
change, including the adoption of an entirely new covenant. The legal dictionaries express this traditional difference between
"amendment" and "revision." Blacks Law Dictionary defines "amendment" as "[a] formal revision or addition proposed or made
to a statute, constitution, pleading, order, or other instrument; specifically, a change made by addition, deletion, or
correction."
51
Blacks also refers to "amendment" as "the process of making such a revision."
52
Revision, on the other hand, is
defined as "[a] reexamination or careful review for correction or improvement."
53
In parliamentary law, it is described as "[a]
general and thorough rewriting of a governing document, in which the entire document is open to
amendment."
54
Similarly, Ballentines Law Dictionary defines "amendment" as "[a] correction or revision of a writing to correct
errors or better to state its intended purpose"
55
and "amendment of constitution" as "[a] process of proposing, passing, and
ratifying amendments to the x x x constitution."
56
In contrast, "revision," when applied to a statute (or constitution),
"contemplates the re-examination of the same subject matter contained in the statute (or constitution), and the substitution of a
new, and what is believed to be, a still more perfect rule."
57
One of the most authoritative constitutionalists of his time to whom we owe a lot of intellectual debt, Dean Vicente G. Sinco, of
the University of the Philippines College of Law, (later President of the U.P. and delegate to the Constitutional Convention of
1971) similarly spelled out the difference between "amendment" and "revision." He opined: "the revision of a constitution, in its
strict sense, refers to a consideration of the entire constitution and the procedure for effecting such change;
while amendment refers only to particular provisions to be added to or to be altered in a constitution."
58
Our people were guided by this traditional distinction when they effected changes in our 1935 and 1973
Constitutions. In 1940, the changes to the 1935 Constitution which included the conversion from a unicameral system to a
bicameral structure, the shortening of the tenure of the President and Vice-President from a six-year term without reelection to
a four-year term with one reelection, and the establishment of the COMELEC, together with the complementary constitutional
provisions to effect the changes, were considered amendments only, not a revision.
The replacement of the 1935 Constitution by the 1973 Constitution was, however, considered a revisionsince the 1973
Constitution was "a completely new fundamental charter embodying new political, social and economic concepts."
59
Among
those adopted under the 1973 Constitution were: the parliamentary system in place of the presidential system, with the
leadership in legislation and administration vested with the Prime Minister and his Cabinet; the reversion to a single-chambered
lawmaking body instead of the two-chambered, which would be more suitable to a parliamentary system of government; the
enfranchisement of the youth beginning eighteen (18) years of age instead of twenty-one (21), and the abolition of literacy,
property, and other substantial requirements to widen the basis for the electorate and expand democracy; the strengthening of
the judiciary, the civil service system, and the Commission on Elections; the complete nationalization of the ownership and
management of mass media; the giving of control to Philippine citizens of all telecommunications; the prohibition against alien
individuals to own educational institutions, and the strengthening of the government as a whole to improve the conditions of the
masses.
60
The 1973 Constitution in turn underwent a series of significant changes in 1976, 1980, 1981, and 1984. Thetwo significant
innovations introduced in 1976 were (1) the creation of an interim Batasang Pambansa, in place of the interim National
Assembly, and (2) Amendment No. 6 which conferred on the President the power to issue decrees, orders, or letters of
instruction, whenever the Batasang Pambansa fails to act adequately on any matter for any reason that in his judgment requires
immediate action, or there is grave emergency or threat or imminence thereof, with such decrees, or letters of instruction to form
part of the law of the land. In 1980, the retirement age of seventy (70) for justices and judges was restored. In 1981, the
presidential system with parliamentary features was installed. The transfer of private land for use as residence to natural-born
citizens who had lost their citizenship was also allowed. Then, in 1984, the membership of the Batasang Pambansa was
reapportioned by provinces, cities, or districts in Metro Manila instead of by regions; the Office of the Vice-President was created
while the executive committee was abolished; and, urban land reform and social housing programs were strengthened.
61
These
substantial changes were simply considered as mere amendments.
In 1986, Mrs. Corazon C. Aquino assumed the presidency, and repudiated the 1973 Constitution. She governed under
Proclamation No. 3, known as the Freedom Constitution.
In February 1987, the new constitution was ratified by the people in a plebiscite and superseded the Provisional or Freedom
Constitution. Retired Justice Isagani Cruz underscored the outstanding features of the 1987 Constitution which consists of
eighteen articles and is excessively long compared to the Constitutions of 1935 and 1973, on which it was largely based. Many of
the original provisions of the 1935 Constitution, particularly those pertaining to the legislative and executive departments, have
been restored because of the revival of the bicameral Congress of the Philippines and the strictly presidential system. The
independence of the judiciary has been strengthened, with new provisions for appointment thereto and an increase in its
authority, which now covers even political questions formerly beyond its jurisdiction. While many provisions of the 1973
Constitution were retained, like those on the Constitutional Commissions and local governments, still the new 1987 Constitution
was deemed as a revision of the 1973 Constitution.
It is now contended that this traditional distinction between amendment and revision was abrogated by the 1987 Constitution. It
is urged that Section 1 of Article XVII gives the power to amend or revise to Congress acting as a constituent assembly, and to a
Constitutional Convention duly called by Congress for the purpose. Section 2 of the same Article, it is said, limited the peoples
right to change the Constitution via initiative through simple amendments. In other words, the people cannot propose
substantial amendments amounting to revision.
With due respect, I do not agree. As aforestated, the oppositors-intervenors who peddle the above proposition rely on the
opinions of some Commissioners expressed in the course of the debate on how to frame the amendment/revision provisions of
the 1987 Constitution. It is familiar learning, however, that opinions in a constitutional convention, especially if inconclusive of
an issue, are of very limited value as explaining doubtful phrases, and are an unsafe guide (to the intent of the people) since
the constitution derives its force as a fundamental law, not from the action of the convention but from the powers (of the people)
who have ratified and adopted it.
62
"Debates in the constitutional convention are of value as showing the views of the individual
members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who
did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of
fundamental law."
63
Indeed, a careful perusal of the debates of the Constitutional Commissioners can likewise lead to the
conclusion that there was no abandonment of the traditional distinction between "amendment" and "revision." For
during the debates, some of the commissioners referred to the concurring opinion of former Justice Felix Q. Antonio in Javellana
v. The Executive Secretary,
64
that stressed the traditional distinction between amendment and revision, thus:
65
MR. SUAREZ: We mentioned the possible use of only one term and that is, "amendment." However, the Committee
finally agreed to use the terms "amendment" or "revision" when our attention was called by the honorable Vice-
President to the substantial difference in the connotation and significance between the said terms. As a result of our
research, we came up with the observations made in the famous or notorious Javellana doctrine, particularly the
decision rendered by Honorable Justice Makasiar,
66
wherein he made the following distinction between "amendment" and
"revision" of an existing Constitution: "Revision" may involve a rewriting of the whole Constitution. On the other hand, the
act of amending a constitution envisages a change of specific provisions only. The intention of an act to amend is not the
change of the entire Constitution, but only the improvement of specific parts or the addition of provisions deemed
essential as a consequence of new conditions or the elimination of parts already considered obsolete or unresponsive to
the needs of the times.
The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental Charter
embodying new political, social and economic concepts.
So, the Committee finally came up with the proposal that these two terms should be employed in the formulation of the
Article governing amendments or revisions to the new Constitution.
To further explain "revision," former Justice Antonio, in his concurring opinion, used an analogy "When a house is completely
demolished and another is erected on the same location, do you have a changed, repaired and altered house, or do you have a
new house? Some of the material contained in the old house may be used again, some of the rooms may be constructed the
same, but this does not alter the fact that you have altogether another or a new house."
67
Hence, it is arguable that when the framers of the 1987 Constitution used the word "revision," they had in mind the "rewriting of
the whole Constitution," or the "total overhaul of the Constitution." Anything less is an "amendment" or just "a change of
specific provisions only," the intention being "not the change of the entire Constitution, but only the improvement of specific parts
or the addition of provisions deemed essential as a consequence of new conditions or the elimination of parts already considered
obsolete or unresponsive to the needs of the times." Under this view, "substantial" amendments are still "amendments" and thus
can be proposed by the people via an initiative.
As we cannot be guided with certainty by the inconclusive opinions of the Commissioners on the difference between
"simple" and "substantial" amendments or whether "substantial" amendments amounting to revision are covered by peoples
initiative, it behooves us to follow the cardinal rule in interpreting Constitutions, i.e., construe them to give effect to
the intention of the people who adopted it. The illustrious Cooley explains its rationale well, viz:
68
x x x the constitution does not derive its force from the convention which framed, but from the people who ratified it, the
intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse
meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common
understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. These
proceedings therefore are less conclusive of the proper construction of the instrument than are legislative proceedings of
the proper construction of a statute; since in the latter case it is the intent of the legislature we seek, while in the former
we are endeavoring to arrive at the intent of the people through the discussion and deliberations of their representatives.
The history of the calling of the convention, the causes which led to it, and the discussions and issues before the people
at the time of the election of the delegates, will sometimes be quite as instructive and satisfactory as anything to be
gathered form the proceedings of the convention.
Corollarily, a constitution is not to be interpreted on narrow or technical principles, but liberally and on broad general lines, to
accomplish the object of its establishment and carry out the great principles of government not to defeat them.
69
One
of these great principles is the sovereignty of the people.
Let us now determine the intent of the people when they adopted initiative as a mode to amend the 1987 Constitution. We start
with the Declaration of Principles and State Policies which Sinco describes as "the basic political creed of the nation"
70
as it "lays
down the policies that government is bound to observe."
71
Section 1, Article II of the 1935 Constitution and Section 1, Article II of
the 1973 Constitution, similarly provide that "the Philippines is a republican state. Sovereignty resides in the people and all
government authority emanates from them." In a republican state, the power of the sovereign people is exercised and
delegated to their representatives. Thus in Metropolitan Transportation Service v. Paredes, this Court held that "a republican
state, like the Philippines x x x (is) derived from the will of the people themselves in freely creating a government of the people,
by the people, and for the people a representative government through which they have agreed to exercise the powers and
discharge the duties of their sovereignty for the common good and general welfare."
72
In both the 1935 and 1973 Constitutions, the sovereign people delegated to Congress or to a convention, the power to
amend or revise our fundamental law. History informs us how this delegated power to amend or revise the Constitution
was abused particularly during the Marcos regime. The Constitution was changed several times to satisfy the power
requirements of the regime. Indeed, Amendment No. 6 was passed giving unprecedented legislative powers to then President
Ferdinand E. Marcos. A conspiracy of circumstances from above and below, however, brought down the Marcos regime through
an extra constitutional revolution, albeit a peaceful one by the people. A main reason for the peoples revolution was the
failure of the representatives of the people to effectuate timely changes in the Constitution either by acting as a
constituent assembly or by calling a constitutional convention. When the representatives of the peopledefaulted in using
this last peaceful process of constitutional change, the sovereign people themselves took matters in their own hands. They
revolted and replaced the 1973 Constitution with the 1987 Constitution.
It is significant to note that the people modified the ideology of the 1987 Constitution as it stressed the power of the
people to act directly in their capacity as sovereign people. Correspondingly, the power of the legislators to act as
representatives of the people in the matter of amending or revising the Constitution was diminished for the spring
cannot rise above its source. To reflect this significant shift, Section 1, Article II of the 1987 Constitution was reworded.
It now reads: "the Philippines is a democratic and republican state. Sovereignty resides in the people and all government
authority emanates from them." The commissioners of the 1986 Constitutional Commission explained the addition of the word
"democratic," in our first Declaration of Principles, 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 peoples organizations x x x x
73
MR. OPLE. x x x x The Committee added the word "democratic" to "republican," and, therefore, the first sentence states:
"The Philippines is a republican and democratic state x x x x
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 for the sake of emphasis?
MR. NOLLEDO. x x x x "democratic" was added because of the need to emphasize people power and the many
provisions in the Constitution that we have approved related to recall, peoples organizations, initiative and the
like, which recognize the participation of the people in policy-making in certain circumstances x x x x
MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet a need x x x x
MR. NOLLEDO. According to Commissioner Rosario Braid, "democracy" here is understood as participatory
democracy.
74
(emphasis supplied)
The following exchange between Commissioners Rene V. Sarmiento and Adolfo S. Azcuna is of the same import:
75
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 x x x x 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. (emphasis supplied)
Consistent with the stress on direct democracy, the systems of initiative, referendum, and recall were enthroned as polestars
in the 1987 Constitution. Thus, Commissioner Blas F. Ople who introduced the provision on peoples initiative said:
76
MR. OPLE. x x x x I think this is just the correct time in history when we should introduce an innovative mode of
proposing amendments to the Constitution, vesting in the people and their organizations the right to formulate
and propose their own amendments and revisions of the Constitution in a manner that will be binding upon the
government. It is not that I believe this kind of direct action by the people for amending a constitution will be needed
frequently in the future, but it is good to know that the ultimate reserves of sovereign power still rest upon the
people and that in the exercise of that power, they can propose amendments or revision to the
Constitution. (emphasis supplied)
Commissioner Jose E. Suarez also explained the peoples initiative as a safety valve, as a peaceful way for the people to
change their Constitution, by citing our experiences under the Marcos government, viz:
77
MR. SUAREZ. We agree to the difficulty in implementing this particular provision, but we are providing a channel for the
expression of the sovereign will of the people through this initiative system.
MR. BENGZON. Is Section 1, paragraphs (a) and (b), not sufficient channel for expression of the will of the people,
particularly in the amendment or revision of the Constitution?
MR. SUAREZ. Under normal circumstances, yes. But we know what happened during the 20 years under the
Marcos administration. So, if the National Assembly, in a manner of speaking, is operating under the thumb of the
Prime Minister or the President as the case may be, and the required number of votes could not be obtained, we would
have to provide for a safety valve in order that the people could ventilate in a very peaceful way their desire for
amendment to the Constitution.
It is very possible that although the people may be pressuring the National Assembly to constitute itself as a
constituent assembly or to call a constitutional convention, the members thereof would not heed the peoples
desire and clamor. So this is a third avenue that we are providing for the implementation of what is now popularly
known as peoples power. (emphasis supplied)
Commissioner Regalado E. Maambong opined that the peoples initiative could avert a revolution, viz:
78
MR. MAAMBONG. x x x x the amending process of the Constitution could actually avert a revolution by providing a
safety valve in bringing about changes in the Constitution through pacific means. This, in effect, operationalizes what
political law authors call the "prescription of sovereignty." (emphasis supplied)
The end result is Section 2, Article XVII of the 1987 Constitution which expressed the right of the sovereign people to propose
amendments to the Constitution by direct action or through initiative. To that extent, the delegated power of Congress to
amend or revise the Constitution has to be adjusted downward. Thus, Section 1, Article VI of the 1987 Constitution has to
be reminted and now provides: "The legislative power shall be vested in the Congress of the Philippines which shall consist of
a Senate and a House of Representatives,except to the extent reserved to the people by the provision on initiative and
referendum."
Prescinding from these baseline premises, the argument that the people through initiative cannot propose substantial
amendments to change the Constitution turns sovereignty on its head. At the very least, thesubmission constricts the
democratic space for the exercise of the direct sovereignty of the people. It also denigrates the sovereign people who they
claim can only be trusted with the power to propose "simple" but not "substantial" amendments to the Constitution. According
to Sinco, the concept of sovereignty should be strictly understood in its legal meaning as it was originally developed in
law.
79
Legal sovereignty, he explained, is "the possession of unlimited power to make laws. Its possessor is the legal
sovereign. It implies the absence of any other party endowed with legally superior powers and privileges. It is not subject to law
for it is the author and source of law. Legal sovereignty is thus the equivalent of legal omnipotence."
80
To be sure, sovereignty or popular sovereignty, emphasizes the supremacy of the peoples will over the state which they
themselves have created. The state is created by and subject to the will of the people, who are the source of all political power.
Rightly, we have ruled that "the sovereignty of our people is not a kabalistic principle whose dimensions are buried in mysticism.
Its metes and bounds are familiar to the framers of our Constitutions. They knew that in its broadest sense, sovereignty is meant
to be supreme, the jus summi imperu, the absolute right to govern."
81
James Wilson, regarded by many as the most brilliant, scholarly, and visionary lawyer in the United States in the 1780s, laid
down the first principles of popular sovereignty during the Pennsylvania ratifying convention of the 1787 Constitution of the
United States:
82
There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be
termed supreme, absolute, and uncontrollable.
x x x x Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that,
in our governments, the supreme power was vested in the constitutions x x x x This opinion approaches a step nearer to
the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable
power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our
constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution,
control in act, as well as right. (emphasis supplied)
I wish to reiterate that in a democratic and republican state, only the people is sovereign - - - not the elected President, not
the elected Congress, not this unelected Court. Indeed, the sovereignty of the people which is indivisible cannot be reposed in
any organ of government. Only its exercise may be delegated to any of them. In our case, the people delegated to
Congress the exercise of the sovereign power to amend or revise the Constitution. If Congress, as delegate, can exercise
this power to amend or revise the Constitution, can it be argued that the sovereign people who delegated the power has no
power to substantially amend the Constitution by direct action? If the sovereign people do not have this power to make
substantial amendments to the Constitution, what did it delegate to Congress? How can the people lack this fraction of a
power to substantially amend the Constitution when by their sovereignty, all power emanates from them? It will take
somemumbo jumbo to argue that the whole is lesser than its part. Let Sinco clinch the point:
83
But although possession may not be delegated, the exercise of sovereignty often is. It is delegated to the organs and
agents of the state which constitute its government, for it is only through this instrumentality that the state ordinarily
functions. However ample and complete this delegation may be, it is nevertheless subject to withdrawal at any
time by the state. On this point Willoughby says:
Thus, States may concede to colonies almost complete autonomy of government and reserve to themselves a
right to control of so slight and so negative a character as to make its exercise a rare and improbable occurrence;
yet so long as such right of control is recognized to exist, and the autonomy of the colonies is conceded to be
founded upon a grant and continuing consent of the mother countries the sovereignty of those mother countries
over them is complete and they are to be considered as possessing only administrative autonomy and not
political independence.
At the very least, the power to propose substantial amendments to the Constitution is shared with the people. We
should accord the most benign treatment to the sovereign power of the people to propose substantial amendments to
the Constitution especially when the proposed amendments will adversely affect the interest of some members of
Congress. A contrary approach will suborn the public weal to private interest and worse, will enable Congress (the
delegate) to frustrate the power of the people to determine their destiny (the principal).
All told, the teaching of the ages is that constitutional clauses acknowledging the right of the people to exercise initiative and
referendum are liberally and generously construed in favor of the people.
84
Initiative and referendum powers must be
broadly construed to maintain maximum power in the people.
85
We followed this orientation in Subic Bay Metropolitan Authority
v. Commission on Elections.
86
There is not an iota of reason to depart from it.
V
The issues at bar are not political questions.
Petitioners submit that "[t]he validity of the exercise of the right of the sovereign people to amend the Constitution and their will,
as expressed by the fact that over six million registered voters indicated their support of the Petition for Initiative, is a purely
political question which is beyond even the very long arm of this Honorable Courts power of judicial review. Whether or not the
1987 Constitution should be amended is a matter which the people and the people alone must resolve in their sovereign
capacity."
87
They argue that "[t]he power to propose amendments to the Constitution is a right explicitly bestowed upon the
sovereign people. Hence, the determination by the people to exercise their right to propose amendments under the system of
initiative is a sovereign act and falls squarely within the ambit of a political question."
88
The petitioners cannot be sustained. This issue has long been interred by Sanidad v. Commission on Elections, viz:
89
Political questions are neatly associated with the wisdom, not the legality of a particular act. Where the vortex of the
controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is
in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the
Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly.
Whether the amending process confers on the President that power to propose amendments is therefore a downright
justiciable question. Should the contrary be found, the actuation of the President would merely be a brutum fulmen. If the
Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare whether
the procedure followed or the authority assumed was valid or not.
We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the
Presidents authority to propose amendments and the regularity of the procedure adopted for submission of the proposals
to the people ultimately lie in the judgment of the latter. A clear Descartes fallacy of vicious cycle. Is it not that the people
themselves, by their sovereign act, provided for the authority and procedure for the amending process when they ratified
the present Constitution in 1973? Whether, therefore, that constitutional provision has been followed or not is indisputably
a proper subject of inquiry, not by the people themselves of course who exercise no power of judicial review, but by
the Supreme Court in whom the people themselves vested that power, a power which includes the competence to
determine whether the constitutional norms for amendments have been observed or not. And, this inquiry must be done a
priori not a posteriori, i.e., before the submission to and ratification by the people.
In the instant case, the Constitution sets in black and white the requirements for the exercise of the peoples initiative to amend
the Constitution. The amendments must be proposed by the people "upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution
nor oftener than once every five years thereafter."
90
Compliance with these requirements is clearly a justiciable and not a political
question. Be that as it may, how the issue will be resolved by the people is addressed to them and to them alone.
VI
Whether the Petition for Initiative filed before the COMELEC complied with Section 2, Article XVII of the Constitution and
R.A. 6735 involves contentious issues of fact which should first be resolved by the COMELEC.
Oppositors-intervenors impugn the Petition for Initiative as it allegedly lacks the required number of signatures under Section 2,
Article XVII of the Constitution. Said provision requires that the petition for initiative be supported by at least twelve per cent
(12%) of the total number of registered voters, of which every legislative district must be represented by at least three per cent
(3%) of the registered voters therein. Oppositors-intervenors contend thatno proper verification of signatures was done in
several legislative districts. They assert that mere verification of the names listed on the signature sheets without verifying the
signatures reduces the signatures submitted for their respective legislative districts to mere scribbles on a piece of paper.
Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a certification dated August 23, 2006 issued by Atty. Marlon S.
Casquejo, Election Officer IV, Third District and OIC, First and Second District, Davao City, stating that his office has not verified
the signatures submitted by the proponents of the peoples initiative. The certification reads:
This is to CERTIFY that this office (First, Second and Third District, Davao City) HAS NOT VERIFIED the signatures of
registered voters as per documents submitted in this office by the proponents of the Peoples Initiative. Consequently, NO
ELECTION DOCUMENTS AND/OR ORDER ISSUED BY HIGHER SUPERIORSused as basis for such verification of
signatures.
91
Senate Minority Leader Aquilino Pimentel, Jr., among others, further clarified that although Atty. Casquejo and Reynne Joy B.
Bullecer, Acting Election Officer IV, First District, Davao City, later issued certifications stating that the Office of the City Election
Officer has examined the list of individuals appearing in the signature sheets,
92
the certifications reveal that the office had verified
only the names of the signatories, but not their signatures. Oppositors-intervenors submit that not only the names of the
signatories should be verified, but also their signatures to ensure the identities of the persons affixing their signatures on the
signature sheets.
Oppositor-intervenor Luwalhati Antonino also alleged that petitioners failed to obtain the signatures of at least three per cent (3%)
of the total number of registered voters in the First Legislative District of South Cotabato. For the First District of South Cotabato,
petitioners submitted 3,182 signatures for General Santos City, 2,186 signatures for Tupi, 3,308 signatures for Tampakan and
10,301 signatures for Polomolok, or 18,977 signatures out of 359,488 registered voters of said district. Antonino, however,
submitted to this Court a copy of the certification by Glory D. Rubio, Election Officer III, Polomolok, dated May 8, 2006, showing
that the signatures from Polomolok were not verified because the Book of Voters for the whole municipality was in the custody of
the Clerk of Court of the Regional Trial Court, Branch 38, Polomolok, South Cotabato.
93
Excluding the signatures from Polomolok
from the total number of signatures from the First District of South Cotabato would yield only a total of 8,676 signatures which
falls short of the three per cent (3%) requirement for the district.
Former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino likewise submitted to this Court a certification issued
by Atty. Stalin A. Baguio, City Election Officer IV, Cagayan de Oro City, stating that the list of names appearing on the signature
sheets corresponds to the names of registered voters in the city, thereby implying that they have not actually verified the
signatures.
94
The argument against the sufficiency of the signatures is further bolstered by Alternative Law Groups, Inc., which submitted
copies of similarly worded certifications from the election officers from Zamboanga del Sur
95
and from Compostela
Valley.
96
Alternative Law Groups, Inc., further assails the regularity of the verification process as it alleged that verification in
some areas were conducted by Barangay officials and not by COMELEC election officers. It filed with this Court copies of
certifications from Sulu and Sultan Kudarat showing that the verification was conducted by local officials instead of COMELEC
personnel.
97
Petitioners, on the other hand, maintain that the verification conducted by the election officers sufficiently complied with the
requirements of the Constitution and the law on initiative.
Contravening the allegations of oppositors-intervenors on the lack of verification in Davao City and in Polomolok, South
Cotabato, petitioner Aumentado claimed that the same election officers cited by the oppositors-intervenors also issued
certifications showing that they have verified the signatures submitted by the proponents of the peoples initiative. He presented
copies of the certifications issued by Atty. Marlon S. Casquejo for the Second and Third Legislative Districts of Davao City stating
that he verified the signatures of the proponents of the peoples initiative. His certification for the Second District states:
This is to CERTIFY that this Office has examined the list of individuals as appearing in the Signature Sheets of the
Registered Voters of District II, Davao City, submitted on April 7, 2006 by MR. NONATO BOLOS, Punong Barangay,
Centro, Davao City for verification which consists of THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662)
signatures.
Anent thereto, it appears that of the THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662) individuals, only
TWENTY-TWO THOUSAND SIX HUNDRED SIXTY-EIGHT (22,668) individuals were found to be REGISTERED
VOTERS, in the Computerized List of Voters of SECOND CONGRESSIONAL DISTRICT, DAVAO CITY.
98
It was also shown that Atty. Casquejo had issued a clarificatory certification regarding the verification process conducted in
Davao City. It reads:
Regarding the verification of the signatures of registered voters, this Office has previously issued two (2) separate
certifications for the 2
nd
and 3
rd
Districts of Davao City on April 20, 2006 and April 26, 2006, respectively, specifically
relating to the voters who supported the peoples initiative. It was stated therein that the names submitted, comprising
22,668 individual voters in the 2
nd
District and 18,469 individual voters in the 3
rd
District, were found [to] be registered
voters of the respective districts mentioned as verified by this Office based on the Computerized List of Voters.
It must be clarified that the August 23, 2006 Certification was issued in error and by mistake for the reason that the
signature verification has not been fully completed as of that date.
I hereby CERTIFY that this Office has examined the signatures of the voters as appearing in the signature sheets and
has compared these with the signatures appearing in the book of voters and computerized list of voters x x x
99
Petitioner Aumentado also submitted a copy of the certification dated May 8, 2006 issued by Polomolok Election Officer Glory D.
Rubio to support their claim that said officer had conducted a verification of signatures in said area. The certification states:
This is to certify further, that the total 68,359 registered voters of this municipality, as of the May 10, 2004 elections,
10,804 names with signatures were submitted for verification and out of which 10,301 were found to be legitimate voters
as per official list of registered voters, which is equivalent to 15.07% of the total number of registered voters of this
Municipality.
100
In addition to the lack of proper verification of the signatures in numerous legislative districts, allegations of fraud and
irregularities in the collection of signatures in Makati City were cited by Senator Pimentel, among others, to wit:
(1) No notice was given to the public, for the benefit of those who may be concerned, by the Makati COMELEC Office
that signature sheets have already been submitted to it for "verification." The camp of Mayor Binay was able to witness
the "verification process" only because of their pro-active stance;
(2) In District 1, the proponents of charter change submitted 43,405 signatures for verification. 36,219 alleged voters
signatures (83% of the number of signatures submitted) were rejected outright. 7,186 signatures allegedly "passed"
COMELECs initial scrutiny. However, upon examination of the signature sheets by Atty. Mar-len Abigail Binay, the said
7,186 signatures could not be accounted for. Atty. Binay manually counted 2,793 signatures marked with the word "OK"
and 3,443 signatures marked with a check, giving only 6,236 "apparently verified signatures." Before the COMELEC
officer issued the Certification, Atty. Binay already submitted to the said office not less than 55 letters of "signature
withdrawal," but no action was ever taken thereon;
(3) In District 2, 29,411 signatures were submitted for verification. 23,521 alleged voters signatures (80% of those
submitted) were rejected outright. Of the 5,890 signatures which allegedly passed the COMELECs initial scrutiny, some
more will surely fail upon closer examination;
(4) In the absence of clear, transparent, and uniform rules the COMELEC personnel did not know how to treat the
objections and other observations coming from the camp of Mayor Binay. The oppositors too did not know where to go
for their remedy when the COMELEC personnel merely "listened" to their objections and other observations. As
mentioned earlier, the COMELEC personnel did not even know what to do with the many "letters of signature withdrawal"
submitted to it;
(5) Signatures of people long dead, in prison, abroad, and other forgeries appear on the Sigaw ng Bayan Signature
Sheets. There is even a 15-year old alleged signatory;
(6) There are Signature Sheets obviously signed by one person;
(7) A Calara M. Roberto and a Roberto M. Calara both allegedly signed the Signature Sheets.
101
Also, there are allegations that many of the signatories did not understand what they have signed as they were merely misled
into signing the signature sheets. Opposed to these allegations are rulings that a person who affixes his signature on a document
raises the presumption that the person so signing has knowledge of what the document contains. Courts have recognized that
there is great value in the stability of records, so to speak, that no one should commit herself or himself to something in writing
unless she or he is fully aware and cognizant of the effect it may have upon her on him.
102
In the same vein, we have held that a
person is presumed to have knowledge of the contents of a document he has signed.
103
But as this Court is not a trier of facts, it
cannot resolve the issue.
In sum, the issue of whether the petitioners have complied with the constitutional requirement that the petition for initiative be
signed by at least twelve per cent (12%) of the total number of registered voters, of which every legislative district must be
represented by at least three per cent (3%) of the registered voters therein, involves contentious facts. Its resolution will
require presentation of evidence and their calibration by the COMELEC according to its rules. During the oral argument
on this case, the COMELEC, through Director Alioden Dalaig of its Law Department, admitted that it has not examined the
documents submitted by the petitioners in support of the petition for initiative, as well as the documents filed by the oppositors to
buttress their claim that the required number of signatures has not been met. The exchanges during the oral argument likewise
clearly show the need for further clarification and presentation of evidence to prove certain material facts.
104
The only basis used by the COMELEC to dismiss the petition for initiative was this Courts ruling in Santiago v.
COMELEC that R.A. 6735 was insufficient. It has yet to rule on the sufficiency of the form and substance of the petition. I
respectfully submit that this issue should be properly litigated before the COMELEC where both parties will be given full
opportunity to prove their allegations.
For the same reasons, the sufficiency of the Petition for Initiative and its compliance with the requirements of R.A.
6735 on initiative and its implementing rules is a question that should be resolved by the COMELEC at the first instance, as it is
the body that is mandated by the Constitution to administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall.
105
VII
COMELEC gravely abused its discretion when it denied due course to the Lambino and Aumentado petition.
In denying due course to the Lambino and Aumentado petition, COMELEC relied on this Courts ruling inSantiago permanently
enjoining it from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation of the system.
Again, I respectfully submit that COMELECs reliance on Santiago constitutes grave abuse of discretion amounting to lack of
jurisdiction. The Santiago case did not establish the firm doctrine that R.A. 6735 is not a sufficient law to implement the
constitutional provision allowing peoples initiative to amend the Constitution. To recapitulate, the records show that in
the original decision, eight (8) justices
106
voted that R.A. 6735 was not a sufficient law; five (5) justices
107
voted that said law
was sufficient; and one (1) justice
108
abstained from voting on the issue holding that unless and until a proper initiatory pleading is
filed, the said issue is not ripe for adjudication.
109
Within the reglementary period, the respondents filed their motion for reconsideration. On June 10, 1997, the Court denied the
motion. Only thirteen (13) justices resolved the motion for Justice Torres inhibited himself.
110
Of the original majority of eight
(8) justices, only six (6) reiterated their ruling that R.A. 6735 was an insufficient law. Justice Hermosisima, originally part of
the majority of eight (8) justices, changed his vote and joined the minority of five (5) justices. He opined without any equivocation
that R.A. 6735 was a sufficient law, thus:
It is one thing to utter a happy phrase from a protected cluster; another to think under fire to think for action upon which
great interests depend." So said Justice Oliver Wendell Holmes, and so I am guided as I reconsider my concurrence to
the holding of the majority that "R.A. No. 6735 is inadequate to cover the system of initiative on amendments to the
Constitution and to have failed to provide sufficient standard for subordinate legislation" and now to interpose my dissent
thereto.
x x x
WHEREFORE, I vote to dismiss the Delfin petition.
I vote, however, to declare R.A. No. 6735 as adequately providing the legal basis for the exercise by the people of
their right to amend the Constitution through initiative proceedings and to uphold the validity of COMELEC
Resolution No. 2300 insofar as it does not sanction the filing of the initiatory petition for initiative proceedings to amend
the Constitution without the required names and/or signatures of at least 12% of all the registered voters, of which every
legislative district must be represented by at least 3% of the registered voters therein. (emphasis supplied)
Justice Vitug remained steadfast in refusing to rule on the sufficiency of R.A. 6735. In fine, the final vote on whether R.A. 6735 is
a sufficient law was 6-6 with one (1) justice inhibiting himself and another justice refusing to rule on the ground that the issue was
not ripe for adjudication.
It ought to be beyond debate that the six (6) justices who voted that R.A. 6735 is an insufficient law failed to establish a doctrine
that could serve as a precedent. Under any alchemy of law, a deadlocked vote of six (6) is not a majority and a non-majority
cannot write a rule with precedential value. The opinion of the late Justice Ricardo J. Francisco is instructive, viz:
As it stands, of the thirteen justices who took part in the deliberations on the issue of whether the motion for
reconsideration of the March 19, 1997 decision should be granted or not, only the following justices sided with Mr. Justice
Davide, namely: Chief Justice Narvasa, and Justices Regalado, Romero, Bellosillo and Kapunan. Justices Melo, Puno,
Mendoza, Hermosisima, Panganiban and the undersigned voted to grant the motion; while Justice Vitug "maintained his
opinion that the matter was not ripe for judicial adjudication." In other words, only five, out of the other twelve justices,
joined Mr. Justice Davides June 10, 1997 ponencia finding R.A. No. 6735 unconstitutional for its failure to pass the so
called "completeness and sufficiency standards" tests. The "concurrence of a majority of the members who actually took
part in the deliberations" which Article VII, Section 4(2) of the Constitution requires to declare a law unconstitutional was,
beyond dispute, not complied with. And even assuming, for the sake of argument, that the constitutional requirement on
the concurrence of the "majority" was initially reached in the March 19, 1997 ponencia, the same is inconclusive as it was
still open for review by way of a motion for reconsideration. It was only on June 10, 1997 that the constitutionality of R.A.
No. 6735 was settled with finality, sans the constitutionally required "majority." The Courts declaration, therefore, is
manifestly grafted with infirmity and wanting in force necessitating, in my view, the reexamination of the Courts decision
in G.R. No. 127325. It behooves the Court "not to tarry any longer" nor waste this opportunity accorded by this new
petition (G.R. No. 129754) to relieve the Courts pronouncement from constitutional infirmity.
The jurisprudence that an equally divided Court can never set a precedent is well-settled. Thus, in the United States, an
affirmance in the Federal Supreme Court upon equal division of opinion is not an authority for the determination of other cases,
either in that Court or in the inferior federal courts. In Neil v. Biggers,
111
which was a habeas corpus state proceeding by a state
prisoner, the U.S. Supreme Court held that its equally divided affirmance of petitioners state court conviction was not an
"actual adjudication" barring subsequent consideration by the district court on habeas corpus. In discussing the non-binding
effect of an equal division ruling, the Court reviewed the history of cases explicating the disposition "affirmed by an equally
divided Court:"
In this light, we review our cases explicating the disposition "affirmed by an equally divided Court." On what was
apparently the first occasion of an equal division, The Antelope, 10 Wheat, 66, 6 L. Ed. 268 (1825), the Court simply
affirmed on the point of division without much discussion. Id., at 126-127. Faced with a similar division during
the next Term, the Court again affirmed, Chief Justice Marshall explaining that "the principles of law which have been
argued, cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it." Etting v. Bank of
United States, 11 Wheat. 59, 78, 6 L. Ed. 419 (1826). As was later elaborated in such cases, it is the appellant or
petitioner who asks the Court to overturn a lower courts decree. "If the judges are divided, the reversal cannot be had, for
no order can be made. The judgment of the court below, therefore, stands in full force. It is indeed, the settled practice in
such case to enter a judgment of affirmance; but this is only the most convenient mode of expressing the fact that the
cause is finally disposed of in conformity with the action of the court below, and that that court can proceed to enforce its
judgment. The legal effect would be the same if the appeal, or writ of error, were dismissed."Durant v. Essex Co., 7
Wall. 107, 112, 19 L. Ed. 154 (1869). Nor is an affirmance by an equally divided Court entitled to precedential
weight. Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264, 80 S. Ct. 1463, 1464, 4 L. Ed. 2d 1708 (1960).xxx"
This doctrine established in Neil has not been overturned and has been cited with approval in a number of subsequent
cases,
112
and has been applied in various state jurisdictions.
In the case of In the Matter of the Adoption of Erin G., a Minor Child,
113
wherein a putative father sought to set aside a decree
granting petition for adoption of an Indian child on grounds of noncompliance with the requirements of Indian Child Welfare Act
(ICWA), the Supreme Court of Alaska held that its decision in In re Adoption of T.N.F. (T.N.F.),
114
which lacked majority
opinion supporting holding that an action such as the putative fathers would be governed by the states one-year statute of
limitations, was not entitled to stare decisis effect. In T.N.F., a majority of the justices sitting did not agree on a common
rationale, as two of four participating justices agreed that the states one-year statute of limitations applied, one justice concurred
in the result only, and one justice dissented. There was no "narrower" reasoning agreed upon by all three affirming justices. The
concurring justice expressed no opinion on the statute of limitations issue, and in agreeing with the result, he reasoned that
ICWA did not give the plaintiff standing to sue.
115
The two-justice plurality, though agreeing that the states one-year statute of
limitations applied, specifically disagreed with the concurring justice on the standing issue.
116
Because a majority of the
participating justices in T.N.F. did not agree on any one ground for affirmance, it was not accorded stare decisis effect by the
state Supreme Court.
The Supreme Court of Michigan likewise ruled that the doctrine of stare decisis does not apply to plurality decisions in which
no majority of the justices participating agree to the reasoning and as such are not authoritative interpretations binding on the
Supreme Court.
117
In State ex rel. Landis v. Williams,
118
the Supreme Court of Florida, in an equally divided opinion on the matter,
119
held that
chapter 15938, Acts of 1933 must be allowed to stand, dismissing a quo warranto suit without prejudice. The Court held:
In a cause of original jurisdiction in this court a statute cannot be declared unconstitutional nor its enforcement nor
operation judicially interfered with, except by the concurrence of a majority of the members of the Supreme Court sitting
in the cause wherein the constitutionality of the statute is brought in question or judicial relief sought against its
enforcement. Section 4 of Article 5, state Constitution.
Therefore in this case the concurrence of a majority of the members of this court in holding unconstitutional said chapter
15938, supra, not having been had, it follows that the statute in controversy must be allowed to stand and accordingly be
permitted to be enforced as a presumptively valid act of the Legislature, and that this proceeding in quo warranto must be
dismissed without prejudice. Spencer v. Hunt (Fla.) 147 So. 282.This decision is not to be regarded as a judicial
precedent on the question of constitutional law involved concerning the constitutionality vel non of chapter 15938. State
ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51.
Quo warranto proceeding dismissed without prejudice by equal division of the court on question of constitutionality of
statute involved.
In U.S. v. Pink,
120
the Court held that the affirmance by the U.S. Supreme Court by an equally divided vote of a decision of the
New York Court of Appeals that property of a New York branch of a Russian insurance company was outside the scope of the
Russian Soviet governments decrees terminating existence of insurance companies in Russia and seizing their assets, while
conclusive and binding upon the parties as respects the controversy in that action, did not constitute an authoritative
"precedent."
In Berlin v. E.C. Publications, Inc.,
121
the U.S. Court of Appeals Second Circuit, in holding that printed lyrics which had the
same meter as plaintiffs lyrics, but which were in form a parody of the latter, did not constitute infringement of plaintiffs
copyrights, ruled that the prior case of Benny v. Loews, Inc.,
122
which was affirmed by an equally divided court, was not
binding upon it, viz:
Under the precedents of this court, and, as seems justified by reason as well as by authority, an affirmance by an equally
divided court is as between the parties, a conclusive determination and adjudication of the matter adjudged; but the
principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming
an authority for the determination of other cases, either in this or in inferior courts.
123
In Perlman v. First National Bank of Chicago,
124
the Supreme Court of Illinois dismissed the appeal as it was unable to reach a
decision because two judges recused themselves and the remaining members of the Court were so divided, it was impossible to
secure the concurrence of four judges as is constitutionally required. The Court followed the procedure employed by the U.S.
Supreme Court when the Justices of that Court are equally divided,i.e. affirm the judgment of the court that was before it for
review. The affirmance is a conclusive determination and adjudication as between the parties to the immediate case, it is not
authority for the determination of other cases, either in the Supreme Court or in any other court. It is not "entitled to precedential
weight." The legal effect of such an affirmance is the same as if the appeal was dismissed.
125
The same rule is settled in the English Courts. Under English precedents,
126
an affirmance by an equally divided Court is, as
between the parties, a conclusive determination and adjudication of the matter adjudged; but the principles of law involved not
having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of
other cases, either in that or in inferior courts.
After a tour of these cases, we can safely conclude that the prevailing doctrine is that, the affirmance by an equally divided court
merely disposes of the present controversy as between the parties and settles no issue of law; the affirmance leaves unsettled
the principle of law presented by the case and is not entitled to precedential weight or value. In other words, the decision only
has res judicata and not stare decisis effect. It is not conclusive and binding upon other parties as respects the controversies in
other actions.
Let us now examine the patent differences between the petition at bar and the Delfin Petition in the Santiago case which will
prevent the Santiago ruling from binding the present petitioners. To start with, the parties are different. More importantly,
the Delfin Petition did not contain the signatures of the required number of registered voters under the Constitution: the
requirement that twelve per cent (12%) of all the registered voters in the country wherein each legislative district is represented
by at least three per cent (3%) of all the registered voters therein was not complied with. For this reason, we ruled unanimously
that it was not the initiatory petition which the COMELEC could properly take cognizance of. In contrast, the present petition
appears to be accompanied by the signatures of the required number of registered voters. Thus, while the Delfin Petition prayed
that an Order be issued fixing the time and dates for signature gathering all over the country, the Lambino and Aumentado
petition, prayed for the calling of a plebiscite to allow the Filipino people to express their sovereign will on the proposition.
COMELEC cannot close its eyes to these material differences.
Plainly, the COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in denying due course to the
Lambino and Aumentado petition on the basis of its mistaken notion that Santiago established the doctrine that R.A. 6735 was
an insufficient law. As aforestressed, that ruling of six (6) justices who do not represent the majority lacks precedential status and
is non-binding on the present petitioners.
The Courts dismissal of the PIRMA petition is of no moment. Suffice it to say that we dismissed the PIRMA petition on the
principle of res judicata. This was stressed by former Chief Justice Hilario G. Davide Jr., viz:
The following are my reasons as to why this petition must be summarily dismissed:
First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v. COMELEC (G.R. No.
127325, 19 March 1997) may plead ignorance of the fact that the former is substantially identical to the latter, except for
the reversal of the roles played by the principal parties and inclusion of additional, yet not indispensable, parties in the
present petition. But plainly, the same issues and reliefs are raised and prayed for in both cases.
The principal petitioner here is the PEOPLES INITIATIVE FOR REFORM, MODERNIZATION, AND ACTION (PIRMA)
and spouses ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit
organization duly organized and existing under Philippine laws with office address at Suite 403, Fedman Suites, 199
Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and CARMEN PEDROSA" as among its
"officers." In Santiago, the PEDROSAS were made respondents as founding members of PIRMA which, as alleged in the
body of the petition therein, "proposes to undertake the signature drive for a peoples initiative to amend the Constitution."
In Santiago then, the PEDROSAS were sued in their capacity as founding members of PIRMA.
The decision in Santiago specifically declared that PIRMA was duly represented at the hearing of the Delfin petition in the
COMELEC. In short, PIRMA was intervenor-petitioner therein. Delfin alleged in his petition that he was a founding
member of the Movement for Peoples Initiative, and under footnote no. 6 of the decision, it was noted that said
movement was "[l]ater identified as the Peoples Initiative for Reforms, Modernization and Action, or PIRMA for brevity."
In their Comment to the petition in Santiago, the PEDROSAS did not deny that they were founding members of PIRMA,
and by their arguments, demonstrated beyond a shadow of a doubt that they had joined Delfin or his cause.
No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as well as the others joining
them, from the operation of the principle of res judicata, which needs no further elaboration. (emphasis supplied)
Justice Josue N. Bellosillo adds:
The essential requisites of res judicata are: (1) the former judgment must be final; (2) it must have been rendered by a
court having jurisdiction over the subject matter and the parties; (3) it must be a judgment on the merits; and (4) there
must be between the first and second actions identity of parties, identity of subject matter, and identity of causes of
action.
127
Applying these principles in the instant case, we hold that all the elements of res judicata are present. For sure, our
Decision in Santiago v. COMELEC, which was promulgated on 19 March 1997, and the motions for reconsideration
thereof denied with finality on 10 June 1997, is undoubtedly final. The said Decision was rendered by this Court which
had jurisdiction over the petition for prohibition under Rule 65. Our judgment therein was on the merits, i.e., rendered only
after considering the evidence presented by the parties as well as their arguments in support of their respective claims
and defenses. And, as between Santiago v. COMELEC case and COMELEC Special Matter No. 97-001 subject of the
present petition, there is identity of parties, subject matter and causes of action.
Petitioners contend that the parties in Santiago v. COMELEC are not identical to the parties in the instant case as some
of the petitioners in the latter case were not parties to the former case. However, a perusal of the records reveals that the
parties in Santiago v. COMELEC included the COMELEC, Atty. Jesus S. Delfin, spouses Alberto and Carmen Pedrosa,
in their capacities as founding members of PIRMA, as well as Atty. Pete Quirino-Quadra, another founding member of
PIRMA, representing PIRMA, as respondents. In the instant case, Atty. Delfin was never removed, and the spouses
Alberto and Carmen Pedrosa were joined by several others who were made parties to the petition. In other words, what
petitioners did was to make it appear that the PIRMA Petition was filed by an entirely separate and distinct group by
removing some of the parties involved in Santiago v. COMELEC and adding new parties. But as we said in Geralde v.
Sabido
128
-
A party may not evade the application of the rule of res judicata by simply including additional parties in the
subsequent case or by not including as parties in the later case persons who were parties in the previous suit.
The joining of new parties does not remove the case from the operation of the rule on res judicata if the party
against whom the judgment is offered in evidence was a party in the first action; otherwise, the parties might
renew the litigation by simply joining new parties.
The fact that some persons or entities joined as parties in the PIRMA petition but were not parties in Santiago v.
COMELEC does not affect the operation of the prior judgment against those parties to the PIRMA Petition who were
likewise parties in Santiago v. COMELEC, as they are bound by such prior judgment.
Needless to state, the dismissal of the PIRMA petition which was based on res judicata binds only PIRMA but not the
petitioners.
VIII
Finally, let the people speak.
"It is a Constitution we are expounding" solemnly intoned the great Chief Justice John Marshall of the United States in the
1819 case of McCulloch v. Maryland.
129
Our Constitution is not a mere collection of slogans. Every syllable of our Constitution
is suffused with significance and requires our full fealty. Indeed, the rule of law will wither if we allow the commands of our
Constitution to underrule us.
The first principle enthroned by blood in our Constitution is the sovereignty of the people. We ought to be concerned with this
first principle, i.e., the inherent right of the sovereign people to decide whether to amend the Constitution. Stripped of its
abstractions, democracy is all about who has the sovereign right to make decisions for the people and our Constitution clearly
and categorically says it is no other than the people themselves from whom all government authority emanates. This right of the
people to make decisions is the essence of sovereignty, and it cannot receive any minimalist interpretation from this
Court. If there is any principle in the Constitution that cannot be diluted and is non-negotiable, it is this sovereign right of the
people to decide.
This Court should always be in lockstep with the people in the exercise of their sovereignty. Let them who will diminish or
destroy the sovereign right of the people to decide be warned. Let not their sovereignty be diminished by those who belittle their
brains to comprehend changes in the Constitution as if the people themselves are not the source and author of our Constitution.
Let not their sovereignty be destroyed by the masters of manipulation who misrepresent themselves as the spokesmen of the
people.
Be it remembered that a petition for peoples initiative that complies with the requirement that it "must be signed by at least 12%
of the total number of registered voters of which every legislative district is represented by at least 3% of the registered voters
therein" is but the first step in a long journey towards the amendment of the Constitution. Lest it be missed, the case at bar
involves but a proposal to amend the Constitution. The proposalwill still be debated by the people and at this time, there is yet
no fail-safe method of telling what will be the result of the debate. There will still be a last step to the process of amendment
which is the ratification of the proposal by a majority of the people in a plebiscite called for the purpose. Only when the
proposal is approved by a majority of the people in the plebiscite will it become an amendment to the Constitution. All
the way, we cannot tie the tongues of the people. It is the people who decide for the people are not an obscure footnote
in our Constitution.
The peoples voice is sovereign in a democracy. Let us hear them. Let us heed them. Let us not only sing paens to the
peoples sovereignty. Yes, it is neither too soon nor too late to let the people speak.
IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the resolution of the Commission on Elections dated August 31, 2006,
denying due course to the Petition for Initiative filed by Raul L. Lambino and Erico B. Aumentado in their own behalf and together
with some 6.3 million registered voters who affixed their signatures thereon and toREMAND the petition at bar to the Commission
on Elections for further proceedings.
REYNATO S. PUNO
Associate Justice
____________________
EN BANC
G. R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L.
ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE
TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-
Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T.
TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE
QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM,
MIGRANTE, GABRIELA, GABRIELA WOMENS PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO
SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES,
MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M.
BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY
LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEA III, JAMBY A.S. MADRIGAL, LUISA P.
EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA
and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU
CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR and
RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR,
JR., Oppositors-Intervenors;
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners
RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John
Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
QUISUMBING, J .:
1. With due respect to the main opinion written by J. Antonio T. Carpio, and the dissent of J. Reynato S. Puno, I view the matter
before us in this petition as one mainly involving a complex political question.
1
While admittedly the present Constitution lays
down certain numerical requirements for the conduct of a Peoples Initiative, such as the percentages of signatures being 12%
of the total number of registered voters, provided each legislative district is represented by at least 3% they are not the main
points of controversy. Stated in simple terms, what this Court must decide is whether the Commission on Elections gravely
abused its discretion when it denied the petition to submit the proposed changes to the Constitution directly to the vote of the
sovereign people in a plebiscite. Technical questions, e.g. whether petitioners should have filed a Motion for Reconsideration
before coming to us, are of no moment in the face of the transcendental issue at hand. What deserve our full attention are the
issues concerning the applicable rules as well as statutory and constitutional limitations on the conduct of the Peoples Initiative.
2. It must be stressed that no less than the present Constitution itself empowers the people to "directly" propose amendments
through their own "initiative." The subject of the instant petition is by way of exercising that initiative in order to change our form of
government from presidential to parliamentary. Much has been written about the fulsome powers of the people in a democracy.
But the most basic concerns the idea that sovereignty resides in the people and that all government authority emanates from
them. Clearly, by the power of popular initiative, the people have the sovereign right to change the present Constitution. Whether
the initial moves are done by a Constitutional Convention, a Constitutional Assembly, or a Peoples Initiative, in the end every
amendment -- however insubstantial or radical -- must be submitted to a plebiscite. Thus, it is the ultimate will of the people
expressed in the ballot, that matters.
2
3. I cannot fault the COMELEC, frankly, for turning down the petition of Messrs. Lambino, et al. For the COMELEC was just
relying on precedents, with the common understanding that, pursuant to the cases of Santiago v. COMELEC
3
and PIRMA v.
COMELEC,
4
the COMELEC had been permanently enjoined from entertaining any petition for a peoples initiative to amend the
Constitution by no less than this Court. In denying due course below to Messrs. Lambino and Aumentados petition, I could not
hold the COMELEC liable for grave abuse of discretion when they merely relied on this Courts unequivocal rulings. Of course,
the Santiago and the PIRMA decisions could be reviewed and reversed by this Court, as J. Reynato S. Puno submits now. But
until the Court does so, the COMELEC was duty bound to respect and obey this Courts mandate, for the rule of law to prevail.
4. Lastly, I see no objection to the remand to the COMELEC of the petition of Messrs. Lambino and Aumentado and 6.327 million
voters, for further examination of the factual requisites before a plebiscite is conducted. On page 4 of the assailed Resolution of
the respondent dated August 31, 2006, the COMELEC tentatively expressed its view that "even if the signatures in the instant
Petition appear to meet the required minimum per centum of the total number of registered voters", the COMELEC could not give
the Petition due course because of our view that R.A. No. 6735 was inadequate. That, however, is now refuted by Mr. Justice
Punos scholarly ponencia. Now that we have revisited the Santiago v. COMELEC decision, there is only one clear task for
COMELEC. In my view, the only doable option left for the COMELEC, once factual issues are heard and resolved, is to give due
course to the petition for the initiative to amend our Constitution so that the sovereign people can vote on whether a
parliamentary system of government should replace the present presidential system.
5. I am therefore in favor of letting the sovereign people speak on their choice of the form of government as a political question
soonest. (This I say without fear of media opinion that our judicial independence has been tainted or imperiled, for it is not.) Thus
I vote for the remand of the petition. Thereafter, as prayed for, COMELEC should forthwith certify the Petition as sufficient in form
and substance and call for the holding of a plebiscite within the period mandated by the basic law, not earlier than sixty nor later
than ninety days from said certification. Only a credible plebiscite itself, conducted peacefully and honestly, can bring closure to
the instant political controversy.
LEONARDO A. QUISUMBING
Associate Justice
____________________
EN BANC
G. R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
G. R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners,
vs.
HE COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John
Doe and Peter Doe, respondents.
x ---------------------------------------------------------------------------------------- x
DISSENTING OPINION
CORONA, J .:
The life of the law is not logic but experience.
1
Our collective experience as a nation breathes life to our system of laws,
especially to the Constitution. These cases promise to significantly contribute to our collective experience as a nation. Fealty to
the primary constitutional principle that the Philippines is not merely a republican State but a democratic one as well behooves
this Court to affirm the right of the people to participate directly in the process of introducing changes to their fundamental law.
These petitions present such an opportunity. Thus, this is an opportune time for this Court to uphold the sovereign rights of the
people.
I agree with the opinion of Mr. Justice Reynato Puno who has sufficiently explained the rationale for upholding the peoples
initiative. However, I wish to share my own thoughts on certain matters I deem material and significant.
Santiago Does Not Apply to This Case But Only to the 1997 Delfin Petition
The COMELEC denied the petition for initiative filed by petitioners purportedly on the basis of this Courts ruling inSantiago v.
COMELEC
2
that: (1) RA 6753 was inadequate to cover the system of initiative regarding amendments to the Constitution and (2)
the COMELEC was permanently enjoined from entertaining or taking cognizance of any petition for initiative regarding
amendments to the Constitution until a sufficient law was validly enacted to provide for the implementation of the initiative
provision.
However, Santiago should not apply to this case but only to the petition of Delfin in 1997. It would be unreasonable to make it
apply to all petitions which were yet unforeseen in 1997. The fact is that Santiago was focused on the Delfin petition alone.
Those who oppose the exercise of the peoples right to initiate changes to the Constitution via initiative claim thatSantiago barred
any and all future petitions for initiative by virtue of the doctrines of stare decisis and res judicata. The argument is flawed.
The ponencia of Mr. Justice Puno has amply discussed the arguments relating to stare decisis. Hence, I will address the
argument from the viewpoint of res judicata.
Res judicata is the rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the
rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same
claim, demand or cause of action.
3
It has the following requisites: (1) the former judgment or order must be final; (2) it must have
been rendered by a court having jurisdiction of the subject matter and of the parties; (3) it must be a judgment or order on the
merits and (4) there must be identity of parties, of subject matter, and of cause of action between the first and second actions.
4
There is no identity of parties in Santiago and the instant case. While the COMELEC was also the respondent inSantiago, the
petitioners in that case and those in this case are different. More significantly, there is no identity of causes of action in the two
cases. Santiago involved amendments to Sections 4 and 7 of Article VI, Section 4 of Article VII and Section 8 of Article X of the
Constitution while the present petition seeks to amend Sections 1to 7 of Article VI and Sections 1 to 4 of the 1987 Constitution.
Clearly, therefore, the COMELEC committed grave abuse of discretion when it ruled that the present petition for initiative was
barred by Santiago and, on that ground, dismissed the petition.
The present petition and that in Santiago are materially different from each other. They are not based on the same facts. There is
thus no cogent reason to frustrate and defeat the present direct action of the people to exercise their sovereignty by proposing
changes to their fundamental law.
Peoples Initiative Should Not
Be Subjected to Conditions
Peoples initiative is an option reserved by the people for themselves exclusively. Neither Congress nor the COMELEC has the
power to curtail or defeat this exclusive power of the people to change the Constitution. Neither should the exercise of this power
be made subject to any conditions, as some would have us accept.
Oppositors to the peoples initiative point out that this Court ruled in Santiago that RA 6735 was inadequate to cover the system
of initiative on amendments to the Constitution and, thus, no law existed to enable the people to directly propose changes to the
Constitution. This reasoning is seriously objectionable.
The pronouncement on the insufficiency of RA 6735 was, to my mind, out of place. It was unprecedented and dangerously
transgressed the domain reserved to the legislature.
While the legislature is authorized to establish procedures for determining the validity and sufficiency of a petition to amend the
constitution,
5
that procedure cannot unnecessarily restrict the initiative privilege.
6
In the same vein, this Court cannot
unnecessarily and unreasonably restrain the peoples right to directly propose changes to the Constitution by declaring a law
inadequate simply for lack of a sub-heading and other grammatical but insignificant omissions. Otherwise, the constitutional
intent to empower the people will be severely emasculated, if not rendered illusory.
Peoples Right and Power to Propose Changes to the Constitution Directly Should not be Unreasonably Curtailed
If Congress and a constitutional convention, both of which are mere representative bodies, can propose changes to the
Constitution, there is no reason why the supreme body politic itself the people may not do sodirectly.
Resort to initiative to amend the constitution or enact a statute is an exercise of "direct democracy" as opposed to "representative
democracy." The system of initiative allows citizens to directly propose constitutional amendments for the general electorate to
adopt or reject at the polls, particularly in a plebiscite. While representative government was envisioned to "refine and enlarge the
public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true
interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial
considerations,"
7
the exercise of "direct democracy" through initiative reserves direct lawmaking power to the people by providing
them a method to make new laws via the constitution, or alternatively by enacting statutes.
8
Efforts of the represented to control
their representatives through initiative have been described as curing the problems of democracy with more democracy.
9
The Constitution celebrates the sovereign right of the people and declares that "sovereignty resides in the people and all
government authority emanates from them."
10
Unless the present petition is granted, this constitutional principle will be nothing
but empty rhetoric, devoid of substance for those whom it seeks to empower.
The right of the people to pass legislation and to introduce changes to the Constitution is a fundamental right and must be
jealously guarded.
11
The people should be allowed to directly seek redress of the problems of society and representative
democracy with the constitutional tools they have reserved for their use alone.
Accordingly, I vote to GRANT the petition in G.R. No. 174513.
RENATO C. CORONA
Associate Justice
____________________
EN BANC
G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO
BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS
ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S.
MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P.
MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG
MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMENS PARTY,
ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and
DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-
BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.
ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO
P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and SENATORS
SERGIO R. OSMEA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM
and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF
THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA.
TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES,
Represented by its President, MANUEL VILLAR, JR., Oppositors-Intervenors;
G.R. No. 174299 entitled
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners
RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John
Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
TINGA, J :
I join in full the opinion of Senior Associate Justice Puno. Its enviable sang-froid, inimitable lucidity, and luminous scholarship are
all so characteristic of the author that it is hardly a waste of pen and ink to write separately if only to express my deep admiration
for his disquisition. It is compelling because it derives from the fundamental democratic ordinance that sovereignty resides in the
people, and it seeks to effectuate that principle through the actual empowerment of the sovereign people. Justice Punos opinion
will in the short term engender reactions on its impact on present attempts to amend the Constitution, but once the political
passion of the times have been shorn, it will endure as an unequivocal message to the taongbayan that they are to be trusted to
chart the course of their future.
Nothing that I inscribe will improve on Justice Punos opinion. I only write separately to highlight a few other points which also
inform my vote to grant the petitions.
I.
I agree with Justice Puno that Santiago v. COMELEC
1
and PIRMA v. COMELEC
2
had not acquired value as precedent and
should be reversed in any case. I add that the Court has long been mindful of the rule that it necessitates a majority, and not
merely a plurality, in order that a decision can stand as precedent. That principle has informed the members of this Court as they
deliberated and voted upon contentious petitions, even if this consideration is not ultimately reflected on the final draft released
for promulgation.
The curious twist to Santiago and PIRMA is that for all the denigration heaped upon Rep. Act No. 6735 in those cases, the Court
did not invalidate any provision of the statute. All the Court said then was that the law was "inadequate". Since this "inadequate"
law was not annulled by the Court, or repealed by Congress, it remained part of the statute books.
3
I maintain that even if Rep. Act No. 6735 is truly "inadequate", the Court in Santiago should not have simply let the insufficiency
stand given that it was not minded to invalidate the law itself. Article 9 of the Civil Code provides that "[n]o judge or court shall
decline to render judgment by reason of the silence, obscurity or insufficiency of the laws."
4
As explained by the Court recently
in Reyes v. Lim,
5
"[Article 9] calls for the application of equity, which[, in the revered Justice Cardozos words,] fills the open
spaces in the law."
6
Certainly, any court that refuses to rule on an action premised on Rep. Act No. 6735 on the ground that the
law is "inadequate" would have been found in grave abuse of discretion. The previous failure by the Court to "fill the open
spaces" in Santiago further highlights that decisions status as an unfortunate aberration.
I am mindful of the need to respect stare decisis, to the point of having recently decried a majority ruling that was clearly minded
to reverse several precedents but refused to explicitly say so.
7
Yet the principle is not immutable.
8
The passionate words of Chief
Justice Panganiban in Osmea v. COMELEC
9
bear quoting:
Before I close, a word about stare decisis. In the present case, the Court is maintaining the ad ban to be consistent with
its previous holding in NPC vs. Comelec. Thus, respondent urges reverence for the stability of judicial doctrines. I submit,
however, that more important than consistency and stability are the verity, integrity and correctness of jurisprudence. As
Dean Roscoe Pound explains, "Law must be stable but it cannot stand still." Verily, it must correct itself and move in
cadence with the march of the electronic age. Error and illogic should not be perpetuated. After all, the Supreme Court, in
many cases, has deviated from stare decisis and reversed previous doctrines and decisions.
10
It should do no less in the
present case.
11
Santiago established a tenet that the Supreme Court may affirm a law as constitutional, yet declare its provisions as inadequate
to accomplish the legislative purpose, then barred the enforcement of the law. That ruling is erroneous, illogical, and should not
be perpetuated.
II.
Following Justice Punos clear demonstration why Santiago should not be respected as precedent, I agree that the COMELECs
failure to take cognizance of the petitions as mandated by Rep. Act No. 6735 constitutes grave abuse of discretion correctible
through the petitions before this Court.
The Court has consistently held in cases such as Abes v. COMELEC
12
, Sanchez v. COMELEC
13
, and Sambarani v.
COMELEC
14
that "the functions of the COMELEC under the Constitution are essentially executive and administrative in
nature".
15
More pertinently, in Buac v. COMELEC
16
, the Court held that the jurisdiction of the COMELEC relative to the
enforcement and administration of a law relative to a plebiscite fell under the jurisdiction of the poll body under its constitutional
mandate "to enforce and administer all laws and regulations relative to the conduct of a xxx plebiscite".
17
Rep. Act No. 6735 is a law relative to the conduct of a plebiscite. The primary task of the COMELEC under Rep. Act No. 6735 is
to enforce and administer the said law, functions that are essentially executive and administrative in nature. Even the subsequent
duty of the COMELEC of determining the sufficiency of the petitions after they have been filed is administrative in character. By
any measure, the COMELECs failure to perform its executive and administrative functions under Rep. Act No. 6735 constitutes
grave abuse of discretion.
III.
It has been argued that the subject petitions for initiative are barred under Republic Act No. 6735 as they allegedly embrace
more than one subject. Section 10 of Rep. Act No. 6735 classifies as a "prohibited measure," a petition submitted to the
electorate that embraces more than one subject.
18
On this point, reliance is apparently placed on the array of provisions which
are to be affected by the amendments proposed in the initiative petition.
Section 10 of Rep. Act No. 6735 is a reflection of the long-enshrined constitutional principle that the laws passed by Congress
"shall embrace only one subject which shall be expressed in the title thereof".
19
The one-subject requirement under the
Constitution is satisfied if all the parts of the statute are related, and are germane to the subject matter expressed in the title, or
as long as they are not inconsistent with or foreign to the general subject and title.
20
An act having a single general subject,
indicated in the title, may contain any number of provisions, no matter how diverse they may be, so long as they are not
inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the
method and means of carrying out the general object.
21
The precedents governing the one-subject, one-title rule under the Constitution should apply as well in the interpretation of
Section 10 of Rep. Act No. 6735. For as long as it can be established that an initiative petition embraces a single general subject,
the petition may be allowed no matter the number of constitutional provisions proposed for amendment if the amendments are
germane to the subject of the petition.
Both the Sigaw ng Bayan and the Lambino initiative petitions expressly propose the changing of the form of government from
bicameral-presidential to unicameral-parliamentary. Such a proposal may strike as comprehensive, necessitating as it will the
reorganization of the executive and legislative branches of government, nevertheless it ineluctably encompasses only a single
general subject still.
The 1987 Constitution (or any constitution for that matter) is susceptible to division into several general spheres. To cite the
broadest of these spheres by way of example, Article III enumerates the guaranteed rights of the people under the Bill of Rights;
Articles VI, VII and VIII provide for the organizational structure of government; while Articles II, XII, XIII & XIV, XV and XVI
enunciate policy principles of the State. What would clearly be prohibited under Section 10 of Rep. Act No. 6735 is an initiative
petition that seeks to amend provisions which do not belong to the same sphere. For example, had a single initiative petition
sought not only to change the form of government from presidential to parliamentary but also to amend the Bill of Rights, said
petition would arguably have been barred under Section 10, as that petition ostensibly embraces more than one subject, with
each subject bearing no functional relation to the other. But that is not the case with the present initiative petitions.
Neither can it be argued that the initiative petitions embrace more than one subject since the proposed amendments seek to
affect two separate branches of government. The very purpose of the initiative petitions is to fuse the powers of the executive
and legislative branches of government; hence, the amendments intended to effect such general intent necessarily affects the
two branches. If it required that to propose a shift in government from presidential to parliamentary, the amendments to Article VII
(Executive Branch) have to be segregated to a different petition from that which would propose amendments to Article VI
(Legislative Branch), then the result would be two initiative petitions both subject to separate authentications, consideration and
even plebiscites, all to effect one general proposition. This scenario, which entertains the possibility that one petition would
ultimately fail while the other succeeds, could thus allow for the risk that the executive branch could be abolished without
transferring executive power to the legislative branch. An absurd result, indeed.
I am not even entirely comfortable with the theoretical underpinnings of Section 10. The Constitution indubitably grants the
people the right to seek amendment of the charter through initiative, and mandates Congress to "provide for the implementation
of the exercise of this right." In doing so, Congress may not restrict the right to initiative on grounds that are not provided for in
the Constitution. If for example the implementing law also provides that certain provisions of the Constitution may not be
amended through initiative, that prohibition should not be sustained. Congress is tasked with the implementation, and not the
restriction of the right to initiative.
The one-subject requirement under Section 10 is not provided for as a bar to amendment under the Constitution. Arguments can
be supplied for the merit of such a requirement, since it would afford a measure of orderliness when the vital question of
amending the Constitution arises. The one-subject requirement does allow the voters focus when deliberating whether or not to
vote for the amendments. These factors of desirability nonetheless fail to detract from the fact that the one-subject requirement
imposes an additional restriction on the right to initiative not contemplated by the Constitution. Short of invalidating the
requirement, a better course of action would be to insist upon its liberal interpretation. After all, the Court has consistently
adhered to a liberal interpretation of the one-subject, one-title rule.
22
There is no cause to adopt a stricter interpretative rule with
regard to the one-subject rule under Section 10 of Rep. Act No. 6735.
IV.
During the hearing on the petitions, the argument was raised that provisions of the Constitution amended through initiative would
not have the benefit of a reference source from the record of a deliberative body such as Congress or a constitutional
convention. It was submitted that this consideration influenced the Constitutional Commission as it drafted Section 2, Article XVII,
which expressly provided that only amendments, and not revisions, may be the subject of initiative petitions.
This argument clearly proceeds from a premise that accords supreme value to the record of deliberations of a constitutional
convention or commission in the interpretation of the charter. Yet if the absence of a record of deliberations stands as so serious
a flaw as to invalidate or constrict processes which change a constitution or its provisions, then the entire initiative process
authorized by the Constitution should be scarlet-marked as well.
Even if this position can be given any weight in the consideration of these petitions, I would like to point out that resort to the
records of deliberations is only one of many aids to constitutional construction. For one, it should be abhorred if the provision
under study is itself clear, plain, and free from ambiguity. As the Court held in Civil Liberties Union v. Executive Secretary:
23
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order
to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as
said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the
constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for
their votes, but they give us no light as to the views of the large majority who did not talk . . . We think it safer to construe
the constitution from what appears upon its face."
24
Even if there is need to refer to extrinsic sources in aid of constitutional interpretation, the constitutional record does not provide
the exclusive or definitive answer on how to interpret the provision. The intent of a constitutional convention is not controlling by
itself, and while the historical discussion on the floor of the constitutional convention is valuable, it is not necessarily decisive. The
Court has even held in Vera v. Avelino
25
that "the proceedings of the [constitutional] convention are less conclusive of the proper
construction of the fundamental law than are legislative proceedings of the proper construction of a statute, since in the latter
case it is the intent of the legislature that courts seek, while in the former courts are endeavoring to arrive at the intent of the
people through the discussions and deliberations of their representatives."
26
The proper interpretation of a constitution depends
more on how it was understood by the people adopting it than the framers understanding thereof.
27
If there is fear in the absence of a constitutional record as guide for interpretation of any amendments adopted via initiative, such
absence would not preclude the courts from interpreting such amendments in a manner consistent with how courts generally
construe the Constitution. For example, reliance will be placed on the other provisions of the Constitution to arrive at a
harmonized and holistic constitutional framework. The constitutional record is hardly the Rosetta Stone that unlocks the meaning
of the Constitution.
V.
I fully agree with Justice Puno that all issues relating to the sufficiency of the initiative petitions should be remanded to the
COMELEC. Rep. Act No. 6735 clearly reposes on the COMELEC the task of determining the sufficiency of the petitions,
including the ascertainment of whether twelve percent (12%) of all registered voters, including three percent (3%) of registered
voters in every legislative district have indeed signed the initiative petitions.
28
It should be remembered that the COMELEC had
dismissed the initiative petitions outright, and had yet to undertake the determination of sufficiency as required by law.
It has been suggested to the end of leading the Court to stifle the initiative petitions that the Court may at this juncture pronounce
the initiative petitions as insufficient. The derivation of the factual predicates leading to the suggestion is uncertain, considering
that the trier of facts, the COMELEC in this instance, has yet to undertake the necessary determination. Still, the premise has
been floated that petitioners have made sufficient admissions before this Court that purportedly established the petitions are
insufficient.
That premise is highly dubitable. Yet the more fundamental question that we should ask, I submit, is whether it serves well on the
Court to usurp trier of facts even before the latter exercises its functions? If the Court, at this stage, were to declare the petitions
as insufficient, it would be akin to the Court pronouncing an accused as guilty even before the lower court trial had began.
Matugas v. COMELEC
29
inveighs against the propriety of the Court uncharacteristically assuming the role of trier of facts, and
resolving factual questions not previously adjudicated by the lower courts or tribunals:
[P]etitioner in this case cannot "enervate" the COMELECs findings by introducing new evidence before this Court,
which in any case is not a trier of facts, and then ask it to substitute its own judgment and discretion for that of
the COMELEC.
The rule in appellate procedure is that a factual question may not be raised for the first time on appeal, and documents
forming no part of the proofs before the appellate court will not be considered in disposing of the issues of an action. This
is true whether the decision elevated for review originated from a regular court or an administrative agency or quasi-
judicial body, and whether it was rendered in a civil case, a special proceeding, or a criminal case. Piecemeal
presentation of evidence is simply not in accord with orderly justice.
30
Any present determination by the Court on the sufficiency of the petitions constitutes in effect a trial de novo, the Justices of the
Supreme Court virtually descending to the level of trial court judges. This is an unbecoming recourse, and it simply is not done.
VI.
The worst position this Court could find itself in is to acquiesce to a plea that it make the choice whether to amend the
Constitution or not. This is a matter which should not be left to fifteen magistrates who have not been elected by the people to
make the choice for them.
A vote to grant the petitions is not a vote to amend the 1987 Constitution. It is merely a vote to allow the people to directly
exercise that option. In fact, the position of Justice Puno which I share would not even guarantee that the Lambino and Sigaw ng
Bayan initiative petitions would be submitted to the people in a referendum. The COMELEC will still have to determine the
sufficiency of the petition. Among the questions which still have to be determined by the poll body in considering the sufficiency
of the petitions is whether twelve percent (12%) of all registered voters nationwide, including three percent (3%) of registered
voters in every legislative district, have indeed signed the initiative petitions.
31
And even should the COMELEC find the initiative petitions sufficient, the matter of whether the Constitution should be amended
would still depend on the choice of the electorate. The oppositors are clearly queasy about some of the amendments proposed,
or the imputed motives behind the amendments. A referendum, should the COMELEC find the petitions as sufficient, would allow
them to convey their uneasiness to the public at large, as well as for the proponents of the amendment to defend their proposal.
The campaign period alone would allow the public to be involved in the significant deliberation on the course our nation should
take, with the ensuing net benefit of a more informed, more politically aware populace. And of course, the choice on whether the
Constitution should be amended would lie directly with the people. The initiative process involves participatory democracy at its
most elemental; wherein the consequential debate would not be confined to the august halls of Congress or the hallowed
chambers of this Court, as it would spill over to the public squares and town halls, the academic yards and the Internet
blogosphere, the dining areas in the homes of the affluent and the impoverished alike.
The prospect of informed and widespread discussion on constitutional change engaged in by a people who are actually
empowered in having a say whether these changes should be enacted, gives fruition to the original vision of pure democracy, as
formulated in Athens two and a half millennia ago. The great hero of Athenian democracy, Pericles, was recorded as saying in
his famed Funeral Oration, "We differ from other states in regarding the man who keeps aloof from public life not as private but
as useless; we decide or debate, carefully and in person all matters of policy, and we hold, not that words and deeds go
ill together, but that acts are foredoomed to failure when undertaken undiscussed."
32
Unfortunately, given the highly politicized charge of the times, it has been peddled that an act or vote that assists the initiative
process is one for the willful extinction of democracy or democratic institutions. Such a consideration should of course properly
play its course in the public debates and deliberations attendant to the initiative process. Yet as a result of the harum-scarum, the
temptation lies heavy for a member of this Court perturbed with the prospect of constitutional change to relieve those anxieties by
simply voting to enjoin any legal procedure that initiates the amendment or revision of the fundamental law, even at the expense
of the peoples will or what the Constitution allows. A vote so oriented takes the conservative path of least resistance, even as it
may gain the admiration of those who do not want to see the Constitution amended.
Still, the biases we should enforce as magistrates are those of the Constitution and the elements of democracy on which our rule
of law is founded. Direct democracy, as embodied in the initiative process, is but a culmination of the evolution over the centuries
of democratic rights of choice and self-governance. The reemergence of the Athenian democratic ideal after centuries of
tyrannical rules arrived very slowly, the benefits parceled out at first only to favored classes. The Magna Carta granted limited
rights to self-determination and self-governance only to a few English nobles; the American Constitution was originally intended
to give a meaningful voice only to free men, mostly Caucasian, who met the property-holding requirements set by the states for
voting. Yet even the very idea of popular voting, limited as it may have already been within the first few years of the American
Union, met resistance from no less a revered figure as Alexander Hamilton, to whom the progressive historian Howard Zinn
attributes these disconcerting words:
The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and
believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give
therefore to the first class a distinct permanent share in the government Can a democratic assembly who annually
revolve in the mass of the people be supposed steadily to pursue the public good? Nothing but a permanent body can
check the imprudence of democracy
33
This utterly paternalistic and bigoted view has not survived into the present age of modern democracy where a persons poverty,
color, or gender no longer impedes the exercise of full democratic rights. Yet a democracy that merely guarantees its citizens the
right to live their lives freely is incomplete if there is no corresponding allowance for a means by which the people have a direct
choice in determining their countrys direction. Initiative as a mode of amending a constitution may seem incompatible with
representative democracy, yet it embodies an even purer form of democracy. Initiative, which our 1987 Constitution saw fit to
grant to the people, is a progressive measure that is but a continuation of the line of evolution of the democratic ideal.
By allowing the sovereign people to directly propose and enact constitutional amendments, the initiative process should be
acknowledged as the purest implement of democratic rule under law. This right granted to over sixty million Filipinos cannot be
denied by the votes of less than eight magistrates for reasons that bear no cogitation on the Constitution.
I VOTE to GRANT the petitions.
DANTE O. TINGA
Associate Justice
____________________
EN BANC
G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO
BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS
ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S.
MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P.
MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG
MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMENS PARTY,
ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and
DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-
BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.
ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO
P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and SENATORS
SERGIO R. OSMEA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM
and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF
THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA.
TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES,
Represented by its President, MANUEL VILLAR, JR., Oppositors-Intervenors;
G.R. No. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners
RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John
Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x
DISSENTING OPINION
CHICO-NAZARIO, J .:
"The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But
this supreme and irresistible power to make or unmake, resides only in the whole body of the people; not in any subdivision of
them."
-- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264, 389, 5 L ed. 257, 287.
I express my concurrence in the discussions and conclusions presented in the persuasive and erudite dissent of Justice Reynato
S. Puno. However, I make some additional observations in connection with my concurrence.
While it is but proper to accord great respect and reverence to the Philippine Constitution of 1987 for being the supreme law of
the land, we should not lose sight of the truth that there is an ultimate authority to which the Constitution is also subordinate the
will of the people. No less than its very first paragraph, the Preamble,
1
expressly recognizes that the Constitution came to be
because it was ordained and promulgated by the sovereign Filipino people. It is a principle reiterated yet again in Article II,
Section 1, of the Constitution, which explicitly declares that "[t]he Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them." Thus, the resolution of the issues and controversies
raised by the instant Petition should be guided accordingly by the foregoing principle.
If the Constitution is the expression of the will of the sovereign people, then, in the event that the people change their will, so
must the Constitution be revised or amended to reflect such change. Resultantly, the right to revise or amend the Constitution
inherently resides in the sovereign people whose will it is supposed to express and embody. The Constitution itself, under Article
XVII, provides for the means by which the revision or amendment of the Constitution may be proposed and ratified.
Under Section 1 of the said Article, proposals to amend or revise the Constitution may be made (a) by Congress, upon a vote of
three-fourths of all its Members, or (b) by constitutional convention. The Congress and the constitutional convention possess the
power to propose amendments to, or revisions of, the Constitution not simply because the Constitution so provides, but because
the sovereign people had chosen to delegate their inherent right to make such proposals to their representatives either through
Congress or through a constitutional convention.
On the other hand, the sovereign people, well-inspired and greatly empowered by the People Power Revolution of 1986,
reserved to themselves the right to directly propose amendments to the Constitution through initiative, to wit
SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
2
The afore-quoted section does not confer on the Filipino people the right to amend the Constitution because, as previously
discussed, such right is inherent in them. The section only reduces into writing this right to initiate amendments to the
Constitution where they collectively and willfully agreed in the manner by which they shall exercise this right: (a) through the filing
of a petition; (b) supported by at least twelve percent (12%) of the total number of registered voters nationwide; (c) with each
legislative district represented by at least three percent (3%) of the registered voters therein; (d) subject to the limitation that no
such petition may be filed within five years after the ratification of the Constitution, and not oftener than once every five years
thereafter; and (e) a delegation to Congress of the authority to provide the formal requirements and other details for the
implementation of the right.
It is my earnest opinion that the right of the sovereign people to directly propose amendments to the Constitution through
initiative is more superior than the power they delegated to Congress or to a constitutional convention to amend or revise the
Constitution. The initiative process gives the sovereign people the voice to express their collective will, and when the people
speak, we must be ready to listen. Article XVII, Section 2 of the Constitution recognizes and guarantees the sovereign peoples
right to initiative, rather than limits it. The enabling law which Congress has been tasked to enact must give life to the said
provision and make the exercise of the right to initiative possible, not regulate, limit, or restrict it in any way that would render the
peoples option of resorting to initiative to amend the Constitution more stringent, difficult, and less feasible, as compared to the
other constitutional means to amend or revise the Constitution. In fact, it is worth recalling that under Article VI, Section 1 of
the Constitution, the legislative power of Congress is limited to the extent reserved to the people by the provisions on
initiative and referendum.
It is with this frame of mind that I review the issues raised in the instant Petitions, and which has led me to the conclusions, in
support of the dissent of Justice Puno, that (a) The Commission on Election (COMELEC) had indeed committed grave abuse of
discretion in summarily dismissing the petition for initiative to amend the Constitution filed by herein petitioners Raul L. Lambino
and Erico B. Aumentado; (b) The Court should revisit the pronouncements it made in Santiago v. Commission on Elections;
3
(c) It
is the sovereign peoples inherent right to propose changes to the Constitution, regardless of whether they constitute merely
amendments or a total revision thereof; and (d) The COMELEC should take cognizance of Lambino and Aumentados petition for
initiative and, in the exercise of its jurisdiction, determine the factual issues raised by the oppositors before this Court.
I
The COMELEC had indeed committed grave abuse of discretion when it summarily dismissed Lambino and Aumentados
petition for initiative entirely on the basis of the Santiago case which, allegedly, permanently enjoined it from entertaining or
taking cognizance of any petition for initiative to amend the Constitution in the absence of a sufficient law.
After a careful reading, however, of the Santiago case, I believe in earnest that the permanent injunction actually issued by this
Court against the COMELEC pertains only to the petition for initiative filed by Jesus S. Delfin, and not to all subsequent petitions
for initiative to amend the Constitution.
The Conclusion
4
in the majority opinion in the Santiago case reads
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the
cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to
have failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on
Elections, but is LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
It is clear from the fallo, as it is reproduced above, that the Court made permanent the Temporary Restraining Order (TRO) it
issued on 18 December 1996 against the COMELEC. The said TRO enjoined the COMELEC from proceeding with the Delfin
Petition, and Alberto and Carmen Pedrosa from conducting a signature drive for peoples initiative.
5
It was this restraining order,
more particularly the portion thereof referring to the Delfin Petition, which was expressly made permanent by the Court. It would
seem to me that the COMELEC and all other oppositors to Lambino and Aumentados petition for initiative gave unwarranted
significance and weight to the first paragraph of the Conclusion in the Santiago case. The first and second paragraphs of the
Conclusion, preceding the dispositive portion, merely express the opinion of the ponente; while the definite orders of
the Court for implementation are found in the dispositive portion.
We have previously held that
The dispositive portion or the fallo is what actually constitutes the resolution of the court and which is the subject of
execution, although the other parts of the decision may be resorted to in order to determine the ratio decidendi for such a
resolution. Where there is conflict between the dispositive part and the opinion of the court contained in the text of the
decision, the former must prevail over the latter on the theory that the dispositive portion is the final order while the
opinion is merely a statement ordering nothing. Hence execution must conform more particularly to that ordained or
decreed in the dispositive portion of the decision.
6
Is there a conflict between the first paragraph of the Conclusion and the dispositive portion of the Santiago case? Apparently,
there is. The first paragraph of the Conclusion states that the COMELEC should be permanently enjoined from entertaining or
taking cognizance of any petition for initiative on amendments to the Constitution until the enactment of a valid law. On the other
hand, the fallo only makes permanent the TRO
7
against COMELEC enjoining it from proceeding with the Delfin Petition. While
the permanent injunction contemplated in the Conclusion encompasses all petitions for initiative on amendments to the
Constitution, the fallo is expressly limited to the Delfin Petition. To resolve the conflict, the final order of the Court as it is stated in
the dispositive portion or the fallo should be controlling.
Neither can the COMELEC dismiss Lambino and Aumentados petition for initiative on the basis of this Courts Resolution, dated
23 September 1997, in the case of Peoples Initiative for Reform, Modernization and Action (PIRMA) v. The Commission on
Elections, et al.
8
The Court therein found that the COMELEC did not commit grave abuse of discretion in dismissing the PIRMA
Petition for initiative to amend the Constitution for it only complied with the Decision in the Santiago case.
It is only proper that the Santiago case should also bar the PIRMA Petition on the basis of res judicata because PIRMA
participated in the proceedings of the said case, and had knowledge of and, thus, must be bound by the judgment of the Court
therein. As explained by former Chief Justice Hilario G. Davide, Jr. in his separate opinion to the Resolution in the PIRMA case
First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v. COMELEC(G.R. No.
127325, 19 March 1997) may plead ignorance of the fact that the former is substantially identical to the latter, except for
the reversal of the roles played by the principal parties and inclusion of additional, yet not indispensable, parties in the
present petition. But plainly, the same issues and reliefs are raised and prayed for in both cases.
The principal petitioner here is the PEOPLES INITIATIVE FOR REFORM, MODERNIZATION, AND ACTION (PIRMA)
and Spouses ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit
organization duly organized and existing under Philippine laws with office address at Suite 403, Fedman Suites, 199
Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and CARMEN PEDROSA" as among its
"officers." In Santiago, the PEDROSAS were made respondents as founding members of PIRMA which, as alleged in the
body of the petition therein, "proposes to undertake the signature drive for a peoples initiative to amend the Constitution."
In Santiago then, the PEDROSAS were sued in their capacity as founding members of PIRMA.
The decision in Santiago specifically declared that PIRMA was duly represented at the hearing of the Delfin petition in the
COMELEC. In short, PIRMA was intervenor-petitioner therein. Delfin alleged in his petition that he was a founding
member of the Movement for Peoples Initiative, and under footnote no. 6 of the decision, it was noted that said
movement was "[l]ater identified as the Peoples Initiative for Reforms, Modernization and Action, or PIRMA for brevity."
In their Comment to the petition in Santiago, the PEDROSAS did not deny that they were founding members of PIRMA,
and by their arguments, demonstrated beyond a shadow of a doubt that they had joined Delfin or his cause.
No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as well as the others joining
them, from the operation of the principle of res judicata, which needs no further elaboration.
9
While the Santiago case bars the PIRMA case because of res judicata, the same cannot be said to the Petition at bar. Res
judicata is an absolute bar to a subsequent action for the same cause; and its requisites are: (a) the former judgment or order
must be final; (b) the judgment or order must be one on the merits; (c) it must have been rendered by a court having jurisdiction
over the subject matter and parties; and (d) there must be between the first and second actions, identity of parties, of subject
matter and of causes of action.
10
Even though it is conceded that the first three requisites are present herein, the last has not been complied with. Undoubtedly,
the Santiago case and the present Petition involve different parties, subject matter, and causes of action, and the former should
not bar the latter.
In the Santiago case, the petition for initiative to amend the Constitution was filed by Delfin alone. His petition does not qualify as
the initiatory pleading over which the COMELEC can acquire jurisdiction, being unsupported by the required number of
registered voters, and actually imposing upon the COMELEC the task of gathering the voters signatures. In the case before us,
the petition for initiative to amend the Constitution was filed by Lambino and Aumentado, on behalf of the 6.3 million registered
voters who affixed their signatures on the signature sheets attached thereto. Their petition prays that the COMELEC issue an
Order
1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution;
2. Directing the publication of the petition in Filipino and English at least twice in newspapers of general and local
circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by the COMELEC of
the sufficiency of the petition, to allow the Filipino people to express their sovereign will on the proposition.
Although both cases involve the right of the people to initiate amendments to the Constitution, the personalities concerned and
the other factual circumstances attendant in the two cases differ. Also dissimilar are the particular prayer and reliefs sought by
the parties from the COMELEC, as well as from this Court. For these reasons, I find that the COMELEC acted with grave abuse
of discretion when it summarily dismissed the petition for initiative filed by Lambino and Aumentado. It behooves the COMELEC
to accord due course to a petition which on its face complies with the rudiments of the law. COMELEC was openly negligent in
summarily dismissing the Lambino and Aumentado petition. The haste by which the instant Petition was struck down is
characteristic of bad faith, which, to my mind, is a patent and gross evasion of COMELECs positive duty. It has so obviously
copped out of its duty and responsibility to determine the sufficiency thereof and sought protection and justification for its craven
decision in the supposed permanent injunction issued against it by the Court in the Santiago case. The COMELEC had
seemingly expanded the scope and application of the said permanent injunction, reading into it more than what it actually states,
which is surprising, considering that the Chairman and majority of the members of COMELEC are lawyers who should be able to
understand and appreciate, more than a lay person, the legal consequences and intricacies of the pronouncements made by the
Court in the Santiago case and the permanent injunction issued therein.
No less than the Constitution itself, under the second paragraph of Article XVII, Section 4, imposes upon the COMELEC the
mandate to set a date for plebiscite after a positive determination of the sufficiency of a petition for initiative on amendments to
the Constitution, viz
SEC. 4. x x x
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of
the sufficiency of the petition.
As a rule, the word "shall" commonly denotes an imperative obligation and is inconsistent with the idea of discretion, and that the
presumption is that the word "shall" when used, is mandatory.
11
Under the above-quoted constitutional provision, it is the
mandatory or imperative obligation of the COMELEC to (a) determine the sufficiency of the petition for initiative on amendments
to the Constitution and issue a certification on its findings; and (b) in case such petition is found to be sufficient, to set the date for
the plebiscite on the proposed amendments not earlier than 60 days nor later than 90 days after its certification. The COMELEC
should not be allowed to shun its constitutional mandate under the second paragraph of Article XVII, Section 4, through the
summary dismissal of the petition for initiative filed by Lambino and Aumentado, when such petition is supported by 6.3 million
signatures of registered voters. Should all of these signatures be authentic and representative of the required percentages of
registered voters for every legislative district and the whole nation, then the initiative is a true and legitimate expression of the will
of the people to amend the Constitution, and COMELEC had caused them grave injustice by silencing their voice based on a
patently inapplicable permanent injunction.
II
We should likewise take the opportunity to revisit the pronouncements made by the Court in its Decision in theSantiago case,
especially as regards the supposed insufficiency or inadequacy of Republic Act No. 6735 as the enabling law for the
implementation of the peoples right to initiative on amendments to the Constitution.
The declaration of the Court that Republic Act No. 6735 is insufficient or inadequate actually gave rise to more questions rather
than answers, due to the fact that there has never been a judicial precedent wherein the Court invalidated a law for insufficiency
or inadequacy. The confusion over such a declaration thereby impelled former Chief Justice Davide, Jr., the ponente in
the Santiago case, to provide the following clarification in his separate opinion to the Resolution in the PIRMA case, thus
Simply put, Santiago did, in reality, declare as unconstitutional that portion of R.A. No. 6735 relating to Constitutional
initiatives for failure to comply with the "completeness and sufficient standard tests" with respect to permissible delegation
of legislative power or subordinate legislation. However petitioners attempt to twist the language in Santiago, the
conclusion is inevitable; the portion of R.A. No. 6735 was held to be unconstitutional.
It is important to note, however, that while the Decision in the Santiago case pronounced repeatedly that Republic Act No. 6735
was insufficient and inadequate, there is no categorical declaration therein that the said statute was unconstitutional. The
express finding that Republic Act No. 6735 is unconstitutional can only be found in the separate opinion of former Chief Justice
Davide to the Resolution in the PIRMA case, which was not concurred in by the other members of the Court.
Even assuming arguendo that the declaration in the Santiago case, that Republic Act No. 6735 is insufficient and inadequate, is
already tantamount to a declaration that the statute is unconstitutional, it was rendered in violation of established rules in
statutory construction, which state that
[A]ll presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must
prove its invalidity beyond a reasonable doubt (Victoriano v. Elizalde Rope Workers Union, 59 SCRA 54 [19741). In fact,
this Court does not decide questions of a constitutional nature unless that question is properly raised and presented in
appropriate cases and is necessary to a determination of the case, i.e., the issue of constitutionality must be lis mota
presented (Tropical Homes v. National Housing Authority, 152 SCRA 540 [1987]).
First, the Court, in the Santiago case, could have very well avoided the issue of constitutionality of Republic Act No. 6735 by
ordering the COMELEC to dismiss the Delfin petition for the simple reason that it does not constitute an initiatory pleading over
which the COMELEC could acquire jurisdiction. And second, the unconstitutionality of Republic Act No. 6735 has not been
adequately shown. It was by and large merely inferred or deduced from the way Republic Act No. 6735 was worded and the
provisions thereof arranged and organized by Congress. The dissenting opinions rendered by several Justices in the Santiago
case reveal the other side to the argument, adopting the more liberal interpretation that would allow the Court to sustain the
constitutionality of Republic Act No. 6735. It would seem that the majority in the Santiago case failed to heed the rule that all
presumptions should be resolved in favor of the constitutionality of the statute.
The Court, acting en banc on the Petition at bar, can revisit its Decision in the Santiago case and again open to judicial review
the constitutionality of Republic Act No. 6735; in which case, I shall cast my vote in favor of its constitutionality, having satisfied
the completeness and sufficiency of standards tests for the valid delegation of legislative power. I fully agree in the conclusion
made by Justice Puno on this matter in his dissenting opinion
12
in the Santiago case, that reads
R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the laws
implementing rules and regulations of the law. As aforestated, Section 2 spells out the policy of the law; viz: "The power
of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part,
the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements
of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the standards to
canalize the delegated power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law
states the number of signatures necessary to start a peoples initiative, directs how initiative proceeding is commenced,
what the COMELEC should do upon filing of the petition for initiative, how a proposition is approved, when a plebiscite
may be held, when the amendment takes effect, and what matters may not be the subject of any initiative. By any
measure, these standards are adequate.
III
The dissent of Justice Puno has already a well-presented discourse on the difference between an "amendment" and a "revision"
of the Constitution. Allow me also to articulate my additional thoughts on the matter.
Oppositors to Lambino and Aumentados petition for initiative argue that the proposed changes therein to the provisions of the
Constitution already amount to a revision thereof, which is not allowed to be done through peoples initiative; Article XVII, Section
2 of the Constitution on peoples initiative refers only to proposals for amendments to the Constitution. They assert the traditional
distinction between an amendment and a revision, with amendment referring to isolated or piecemeal change only, while revision
as a revamp or rewriting of the whole instrument.
13
However, as pointed out by Justice Puno in his dissent, there is no quantitative or qualitative test that can establish with
definiteness the distinction between an amendment and a revision, or between a substantial and simple change of the
Constitution.
The changes proposed to the Constitution by Lambino and Aumentados petition for initiative basically affect only Article VI on
the Legislative Department and Article VII on the Executive Department. While the proposed changes will drastically alter the
constitution of our government by vesting both legislative and executive powers in a unicameral Parliament, with the President as
the Head of State and the Prime Minister exercising the executive power; they would not essentially affect the other 16 Articles of
the Constitution. The 100 or so changes counted by the oppositors to the other provisions of the Constitution are constituted
mostly of the nominal substitution of one word for the other, such as Parliament for Congress, or Prime Minister for President. As
eloquently pointed out in the dissent of Justice Puno, the changes proposed to transform our form of government from bicameral-
presidential to unicameral-parliamentary, would not affect the fundamental nature of our state as a democratic and republican
state. It will still be a representative government where officials continue to be accountable to the people and the people maintain
control over the government through the election of members of the Parliament.
Furthermore, should the people themselves wish to change a substantial portion or even the whole of the Constitution, what or
who is to stop them? Article XVII, Section 2 of the Constitution which, by the way it is worded, refers only to their right to initiative
on amendments of the Constitution? The delegates to the Constitutional Convention who, according to their deliberations,
purposely limited Article XVII, Section 2 of the Constitution to amendments? This Court which has the jurisdiction to interpret the
provision? Bearing in mind my earlier declaration that the will of the sovereign people is supreme, there is nothing or no one that
can preclude them from initiating changes to the Constitution if they choose to do so. To reiterate, the Constitution is supposed to
be the expression and embodiment of the peoples will, and should the peoples will clamor for a revision of the Constitution, it is
their will which should prevail. Even the fact that the people ratified the 1987 Constitution, including Article XVII, Section 2
thereof, as it is worded, should not prevent the exercise by the sovereign people of their inherent right to change the Constitution,
even if such change would be tantamount to a substantial amendment or revision thereof, for their actual exercise of the said
right should be a clear renunciation of the limitation which the said provision imposes upon it. It is the inherent right of the people
as sovereign to change the Constitution, regardless of the extent thereof.
IV
Lastly, I fail to see the injustice in allowing the COMELEC to give due course to and take cognizance of Lambino and
Aumentados petition for initiative to amend the Constitution. I reiterate that it would be a greater evil if one such petition which is
ostensibly supported by the required number of registered voters all over the country, be summarily dismissed.
Giving due course and taking cognizance of the petition would not necessarily mean that the same would be found sufficient and
set for plebiscite. The COMELEC still faces the task of reviewing the petition to determine whether it complies with the
requirements for a valid exercise of the right to initiative. Questions raised by the oppositors to the petition, such as those on the
authenticity of the registered voters signatures or compliance with the requisite number of registered voters for every legislative
district, are already factual in nature and require the reception and evaluation of evidence of the parties. Such questions are best
presented and resolved before the COMELEC since this Court is not a trier of facts.
In view of the foregoing, I am of the position that the Resolution of the COMELEC dated 31 August 2006 denying due course to
the Petition for Initiative filed by Lambino and Aumentado be reversed and set aside for having been issued in grave abuse of
discretion, amounting to lack of jurisdiction, and that the Petition be remanded to the COMELEC for further proceedings.
In short, I vote to GRANT the petition for Initiative of Lambino and Aumentado.
MINITA V. CHICO-NAZARIO
Associate Justice
____________________
EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS, petitioners, vs. The
COMMISSION ON ELECTIONS, respondent.
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, petitioners vs.COMMISSION ON
ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, JR., and Commissioners RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
VELASCO, JR., J .:
Introduction
The fate of every democracy, of every government based on the Sovereignty of the people, depends on
the choices it makes between these opposite principles: absolute power on the one hand, and on the
other the restraints of legality and the authority of tradition.
John Acton
In this thorny matter of the peoples initiative, I concur with the erudite and highly persuasive opinion of Justice Reynato S. Puno
upholding the peoples initiative and raise some points of my own.
The issue of the peoples power to propose amendments to the Constitution was once discussed in the landmark case
of Santiago v. COMELEC.
1
Almost a decade later, the issue is once again before the Court, and I firmly believe it is time to
reevaluate the pronouncements made in that case.
The issue of Charter Change is one that has sharply divided the nation, and its proponents and opponents will understandably
take all measures to advance their position and defeat that of their opponents. The wisdom or folly of Charter Change does not
concern the Court. The only thing that the Court must review is the validity of the present step taken by the proponents of Charter
Change, which is the Peoples Initiative, as set down in Article XVII, Sec. 2 of the 1987 Constitution:
Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters, of which every legislative district must be represented by
at least three per centum of the registered voters therein. No amendment under this section shall be authorized within
five years following the ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
In the Santiago case, the Court discussed whether the second paragraph of that section had been fulfilled. It determined that
Congress had not provided for the implementation of the exercise of the peoples initiative, when it held that Republic Act No.
6735, or "The Initiative and Referendum Act," was "inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation."
2
With all due respect to those Justices who made that declaration, I must disagree.
Republic Act No. 6735 is the proper law for proposing constitutional amendments and it should not have been
considered inadequate.
The decision in Santiago focused on what it perceived to be fatal flaws in the drafting of the law, in the failings of the way the law
was structured, to come to the conclusion that the law was inadequate. The Court itself recognized the legislators intent, but
disregarded this intent. The law was found wanting. The Court then saw the inclusion of the Constitution in RA 6735 as an
afterthought. However, it was included, and it should not be excluded by the Court via a strained analysis of the law. The difficult
construction of the law should not serve to frustrate the intent of the framers of the 1987 Constitution: to give the people the
power to propose amendments as they saw fit. It is a basic precept in statutory construction that the intent of the legislature is the
controlling factor in the interpretation of a statute.
3
The intent of the legislature was clear, and yet RA 6735 was declared
inadequate. It was not specifically struck down or declared unconstitutional, merely incomplete. The Court focused on what RA
6735 was not, and lost sight of what RA 6735 was.
It is my view that the reading of RA 6735 in Santiago should have been more flexible. It is also a basic precept of statutory
construction that statutes should be construed not so much according to the letter that killeth but in line with the purpose for
which they have been enacted.
4
The reading of the law should not have been with the view of its defeat, but with the goal of
upholding it, especially with its avowed noble purpose.
Congress has done its part in empowering the people themselves to propose amendments to the Constitution, in accordance
with the Constitution itself. It should not be the Supreme Court that stifles the people, and lets their cries for change go unheard,
especially when the Constitution itself grants them that power.
The courts ruling in the Santiago case does not bar the present petition because the fallo in the Santiago case is limited
to the Delfin petition.
The Santiago case involved a petition for prohibition filed by Miriam Defensor-Santiago, et al., against the COMELEC, et al.,
which sought to prevent the COMELEC from entertaining the "Petition to Amend the Constitution, to Lift Term Limits of Elective
Officials, by Peoples Initiative" filed by Atty. Jesus Delfin. In the body of the judgment, the Court made the following conclusion,
viz:
This petition must then be granted and the COMELEC should be permanently enjoined from entertaining or taking
cognizance of any petition or initiative on amendments on the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system (emphasis supplied).
We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the
cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the right of the people under that system.
In the said case, the Courts fallo states as follows:
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R. A. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have
failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300 of the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on
Elections, but is LIFTED against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
The question now is if the ruling in Santiago is decisive in this case. It is elementary that when there is conflict between the
dispositive portion or fallo of the decision and the opinion of the court contained in the text or body of the judgment, the former
prevails over the latter. An order of execution is based on the disposition, not on the body, of the decision.
5
The dispositive
portion is its decisive resolution; thus, it is the subject of execution. The other parts of the decision may be resorted to in order to
determine the ratio decidendi for the disposition. Where there is conflict between the dispositive part and the opinion of the
court contained in the text or body of the decision, the former must prevail over the latter on the theory that the
dispositive portion is the final order, while the opinion is merely a statement ordering nothing. Hence, the execution must
conform with that which is ordained or decreed in the dispositive portion of the decision.
6
A judgment must be distinguished from an opinion. The latter is an informal expression of the views of the court and cannot
prevail against its final order or decision. While the two may be combined in one instrument, the opinion forms no part of the
judgment. So there is a distinction between the findings and conclusions of a court and its Judgment. While they may constitute
its decision and amount to the rendition of a judgment, they are not the judgment itself. It is not infrequent that the grounds of a
decision fail to reflect the exact views of the court, especially those of concurring justices in a collegiate court. We often
encounter in judicial decisions lapses, findings, loose statements and generalities which do not bear on the issues or are
apparently opposed to the otherwise sound and considered result reached by the court as expressed in the dispositive part, so
called, of the decision.
7
Applying the foregoing argument to the Santiago case, it immediately becomes apparent that the disposition in the latter case
categorically made permanent the December 18, 1996 Temporary Restraining Order issued against the COMELEC in the Delfin
petition but did NOT formally incorporate therein any directive PERMANENTLY enjoining the COMELEC "from entertaining or
taking cognizance of any petition for initiative on amendments." Undeniably, the perpetual proscription against the COMELEC
from assuming jurisdiction over any other petition on Charter Change through a Peoples Initiative is just a conclusion and cannot
bind the poll body, for such unending ban would trench on its constitutional power to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall under Section 2, Article IX of the
Constitution. RA 6735 gave the COMELEC the jurisdiction to determine the sufficiency of the petition on the initiative under
Section 8, Rule 11 and the form of the petition under Section 3, Rule I; hence, it cannot be barred from entertaining any such
petition.
In sum, the COMELEC still retains its jurisdiction to take cognizance of any petition on initiative under RA 6735 and it can rule on
the petition and its action can only be passed upon by the Court when the same is elevated through a petition for certiorari.
COMELEC cannot be barred from acting on said petitions since jurisdiction is conferred by law (RA 6735) and said law has not
been declared unconstitutional and hence still valid though considered inadequate in the Santiago case.
Respondents, however, claim that the Court in the subsequent case of PIRMA v. Commission on Elections
8
confirmed the
statement of the Court in the Santiago case that the COMELEC was "permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments." Much reliance is placed on the ruling contained in a Minute Resolution
which reads:
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 Decision of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.
Take note that the Court specifically referred to "dispositions" in the March 19, 1997 Decision. To reiterate, the dispositions in the
Santiago case decision refer specifically to the December 18, 1996 TRO being made permanent against the COMELEC but do
not pertain to a permanent injunction against any other petition for initiative on amendment. Thus, what was confirmed or even
affirmed in the Minute Resolution in the PIRMA case pertains solely to the December 18, 1996 TRO which became permanent,
the declaration of the inadequacy of RA 6735, and the annulment of certain parts of Resolution No. 2300 but certainly not the
alleged perpetual injunction against the initiative petition. Thus, the resolution in the PIRMA case cannot be considered res
judicata to the Lambino petition.
Amendment or Revision
One last matter to be considered is whether the petition may be allowed under RA 6735, since only amendments to the
Constitution may be the subject of a peoples initiative.
The Lambino petition cannot be considered an act of revising the Constitution; it is merely an attempt to amend it. The term
amendment has to be liberally construed so as to effectuate the peoples efforts to amend the Constitution.
As an eminent constitutionalist, Dean Vicente G. Sinco,
9
explained:
Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important
provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the
original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all
the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document
should be replaced with an entirely new one.
The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The
intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that
possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed
essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading
in their effect.
In this case, the Lambino petition is not concerned with rewriting the entire Constitution. It was never its intention to revise the
whole Constitution. It merely concerns itself with amending a few provisions in our fundamental charter.
When there are gray areas in legislation, especially in matters that pertain to the sovereign peoples political rights, courts must
lean more towards a more liberal interpretation favoring the peoples right to exercise their sovereign power.
Conclusion
Sovereignty residing in the people is the highest form of sovereignty and thus deserves the highest respect even from the courts.
It is not something that can be overruled, set aside, ignored or stomped over by whatever amount of technicalities, blurred or
vague provisions of the law.
As I find RA 6735 to be adequate as the implementing law for the Peoples Initiative, I vote to grant the petition in G.R. No.
174153 and dismiss the petition in G.R. No. 174299. The Amended Petition for Initiative filed by petitioners Raul L. Lambino and
Erico B. Aumentado should be remanded to the COMELEC for determination whether or not the petition is sufficient under RA
6735, and if the petition is sufficient, to schedule and hold the necessary plebiscite as required by RA 6735.
It is time to let the peoples voice be heard once again as it was twenty years ago. And should this voice demand a change in the
Constitution, the Supreme Court should not be one to stand in its way.
PRESBITERO J. VELASCO, JR.
Associate Justice
Footnotes
1
Including Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP).
2
This provision states: "Requirements. x x x x
(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of
registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%)
of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the
ratification of the 1987 Constitution and only once every five (5) years thereafter.
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case
may be;
c.2. the proposition;
c.3. the reason or reasons therefor;
c.4. that it is not one of the exceptions provided herein;
c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly written or printed at the top
of every page of the petition."
3
This provision states: "Verification of Signatures. The Election Registrar shall verify the signatures on the basis of the registry
list of voters, voters affidavits and voters identification cards used in the immediately preceding election."
4
Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI will be changed thus:
Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed
of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and
cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable,
contiguous, compact and adjacent territory, and each province must have at least one member.
(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on the day
of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of
his district for a term of five years without limitation as to the number thereof, except those under the party-list system
which shall be provided for by law and whose number shall be equal to twenty per centum of the total membership
coming from the parliamentary districts.
5
Sections 1, 2, 3, and 4 of Article VII will be changed thus:
Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime
Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of Parliament
from among themselves. He shall be responsible to the Parliament for the program of government.
6
Sections 1-5 of the Transitory Provisions read:
Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the thirtieth
day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a vote of two
thirds of all the members of the interim parliament.
(2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent
Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of
both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and
responsibilities of Prime Minister under Article VII as amended.
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; provided, however, that any and all references
therein to "Congress", "Senate", "House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament"; that any and all references therein to "Member[s] of Congress", "Senator[s]" or "Member[s] of the House of
Representatives" shall be changed to read as "Member[s] of Parliament" and any and all references to the "President"
and or "Acting President" shall be changed to read "Prime Minister".
Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections
1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which
are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended
so as to conform to a unicameral Parliamentary System of government; provided however that any and all references
therein to "Congress", "Senate", "House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament"; that any and all references therein to "Member[s] of Congress", "Senator[s]" or "Member[s] of the House of
Representatives" shall be changed to read as "Member[s] of Parliament" and any and all references to the "President"
and or "Acting President" shall be changed to read "Prime Minister".
Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue
until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the
incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who
are heads of executive departments.
(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June
2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the interim
Parliament and shall preside over its sessions for the election of the interim Prime Minister and until the Speaker shall
have been elected by a majority vote of all the members of the interim Parliament from among themselves.
(3) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a
strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the
interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim
Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be
delegated to him by the incumbent President.
(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. Thereafter, the Vice President, as Member of
Parliament, shall immediately convene the Parliament and shall initially preside over its session for the purpose of
electing the Prime Minister, who shall be elected by a majority vote of all
its members, from among themselves. The duly elected Prime Minister shall continue to exercise and perform the
powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of incumbent President
and Vice President.
7
As revised, Article XVIII contained a new paragraph in Section 4 (paragraph 3) and a modified paragraph 2, Section 5, thus:
Section 4. x x x x
(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June
2010.
x x x x
Section 5. x x x x
(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. The duly elected Prime Minister shall continue to
exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term
of the incumbent President and Vice President.
8
336 Phil. 848 (1997); Resolution dated 10 June 1997.
9
The COMELEC held:
We agree with the Petitioners that this Commission has the solemn Constitutional duty to enforce and administer all laws
and regulations relative to the conduct of, as in this case, initiative.
This mandate, however, should be read in relation to the other provisions of the Constitution particularly on initiative.
Section 2, Article XVII of the 1987 Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative, upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. x x x.
The Congress shall provide for the implementation of the exercise of this right.
The afore-quoted provision of the Constitution being a non self-executory provision needed an enabling law for its
implementation. Thus, in order to breathe life into the constitutional right of the people under a system of initiative to
directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolution, Congress
enacted Republic Act No. 6735.
However, the Supreme Court, in the landmark case of Santiago vs. Commission on Elections struck down the said law
for being incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned.
The Supreme Court likewise declared that this Commission should be permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system.
Thus, even if the signatures in the instant Petition appear to meet the required minimum per centum of the total number
of registered voters, of which every legislative district is represented by at least three per centum of the registered voters
therein, still the Petition cannot be given due course since the Supreme Court categorically declared R.A. No. 6735 as
inadequate to cover the system of initiative on amendments to the Constitution.
This Commission is not unmindful of the transcendental importance of the right of the people under a system of initiative.
However, neither can we turn a blind eye to the pronouncement of the High Court that in the absence of a valid enabling
law, this right of the people remains nothing but an "empty right", and that this Commission is permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution.
Considering the foregoing, We are therefore constrained not to entertain or give due course to the instant Petition.
10
Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya; Philippine Transport and General Workers
Organization (PTGWO); Trade Union Congress of the Philippines; Sulong Bayan Movement Foundation, Inc.
11
Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople and Carlos
P. Medina, Jr.; Alternative Law Groups, Inc.; Atty. Pete Quirino Quadra; Bayan, Bayan Muna, Kilusang Mayo Uno, Head,
Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Womens Party, Anakbayan, League of Filipino Students, Jojo Pineda,
Dr. Darby Santiago, Dr. Reginald Pamugas; Loretta Ann P. Rosales, and Mario Joyo Aguja, Ana Theresa Hontiveros-Baraquel,
Luwalhati Ricasa Antonino; Philippine Constitution Association (PHILCONSA), Conrado F. Estrella, Tomas C. Toledo, Mariano
M. Tajon, Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; Senate of the Philippines;
Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador and Randall C. Tabayoyong, Integrated
Bar of the Philippines, Cebu City and Cebu Province Chapters; Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators
Sergio R. Osmea III, Jamby Madrigal, Jinggoy Estrada, Alfredo S. Lim and Panfilo Lacson; Joseph Ejercito Estrada and Pwersa
ng Masang Pilipino.
12
This provision states: "Amendments to this Constitution may likewise be directly proposed by the people through initiative upon
a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized
within five years following the ratification of this Constitution nor oftener than once every five years."
13
I RECORD, 387-388.
14
During the deliberations of the Constitutional Commission, Commissioner Rene V. Sarmiento made the following report (I
RECORD 389):
MR. SARMIENTO: Madam President, I am happy that the Committee on Amendments and Transitory Provisions decided
to retain the system of initiative as a mode of amending the Constitution. I made a survey of American constitutions and I
discovered that 13 States provide for a system of initiative as a mode of amending the Constitution Arizona, Arkansas,
California, Colorado, Massachusetts, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma and
Oregon. The initiative for ordinary laws only is used in Idaho, Maine, Montana and South Dakota. So, I am happy that this
was accepted or retained by the Committee.
x x x x
The Americans in turn copied the concept of initiatives from the Swiss beginning in 1898 when South Dakota adopted the
initiative in its constitution. The Swiss cantons experimented with initiatives in the 1830s. In 1891, the Swiss incorporated
the initiative as a mode of amending their national constitution. Initiatives promote "direct democracy" by allowing the
people to directly propose amendments to the constitution. In contrast, the traditional mode of changing the constitution is
known as "indirect democracy" because the amendments are referred to the voters by the legislature or the constitutional
convention.
15
Florida requires only that the title and summary of the proposed amendment are "printed in clear and unambiguous language."
Advisory Opinion to the Attorney General RE Right of Citizens to Choose Health Care Providers, No. 90160, 22 January 1998,
Supreme Court of Florida.
16
State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933); Whitman v. Moore, 59 Ariz. 211, 125 P.2d 445 (1942);
Heidtman v. City of Shaker Heights, 99 Ohio App. 415, 119 N.E. 2d 644 (1954); Christen v. Baker, 138 Colo. 27, 328 P.2d 951
(1958); Stop the Pay Hike Committee v. Town Council of Town of Irvington, 166 N.J. Super. 197, 399 A.2d 336 (1979); State ex
rel Evans v. Blackwell, Slip copy, 2006 WL 1102804 (Ohio App. 10 Dist.), 2006-Ohio-2076.
17
407 Mass. 949, 955 (1990). Affirmed by the District Court of Massachusetts in Henry v. Conolly, 743 F. Supp. 922 (1990) and
by the Court of Appeals, First Circuit, in Henry v. Conolly, 9109 F. 2d. 1000 (1990), and cited in Marino v. Town Council of
Southbridge, 13 Mass.L.Rptr. 14 (2001).
18
89 P.3d 1227, 1235 (2004).
19
Stumpf v. Law, 839 P. 2d 120, 124 (1992).
20
Exhibit "B" of the Lambino Groups Memorandum filed on 11 October 2006.
21
Annex "B" of the Comment/Opposition in Intervention of Atty. Pete Quirino-Quadra filed on 7 September 2006.
22
www.ulap.gov.ph.
23
www.ulap.gov.ph/reso2006-02.html.
24
The full text of the proposals of the Consultative Commission on Charter Change can be downloaded at its official website at
www.concom.ph.
25
The Lambino Groups Memorandum, p. 5.
26
Under the proposed Section 1(2), Article VI of the Constitution, members of Parliament shall be elected for a term of five years
"without limitation as to the number thereof."
27
Under the proposed Section 4(1), Article XVIII, Transitory Provisions of the Constitution, the interim Parliament "shall continue
until the Members of the regular Parliament shall have been elected and shall have qualified." Also, under the proposed Section
5(2), Article XVIII, of the same Transitory Provisions, the interim Parliament "shall provide for the election of the members of
Parliament."
28
Under the proposed Section 4(3), Article XVIII, Transitory Provisions of the Constitution, the interim Parliament, within 45 days
from ratification of the proposed changes, "shall convene to propose amendments to, or revisions of, this Constitution."
29
448 So.2d 984, 994 (1984), internal citations omitted.
30
698 P.2d 1173, 1184 (1985).
31
I RECORD 386, 392, 402-403.
32
196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91 (1994).
33
392 P.2d 636, 638 (1964).
34
930 P.2d 186, 196 (1996), internal citations omitted.
35
Livermore v. Waite, 102 Cal. 113, 118-119 (1894).
36
Amador Valley Joint Union High School District v. State Board of Equalization, 583 P.2d 1281, 1286 (1978).
37
Id.
38
Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991).
39
California Association of Retail Tobacconists v. State, 109 Cal.App.4
th
792, 836 (2003).
40
See note 44, infra.
41
Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 1294 (2003).
42
238 So.2d 824 (1970).
43
Id. at 830-832.
44
As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 September 2006 oral arguments.
45
Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10 November 2003, 415 SCRA 44; J.M. Tuason & Co., Inc. v.
Land Tenure Administration, 142 Phil. 393 (1970); Gold Creek Mining Corporation v. Rodriguez, 66 Phil. 259 (1938).
46
882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling found the amendment in question was not a revision.
47
Section 1, Article V of the Constitution.
48
Section 11(1), Article XVI of the Constitution.
49
Section 2, Article VII of the Constitution.
50
This section provides: "The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them."
51
Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v. COA, 366 Phil. 273 (1999).
52
G.R. No. 129754, Resolution dated 23 September 1997.
53
Presidential Proclamation No. 58 dated February 11, 1987, entitled "Proclaiming the Ratification of the Constitution of the
Republic of the Philippines Adopted by the Constitutional Commission of 1986, including the Ordinance Appended thereto."
PANGANIBAN, CJ .:
1
Chief Justice McLachlin spoke on "Liberty, Prosperity and the Rule of Law" in her speech before the Global Forum on Liberty
and Prosperity held on October 18-20, 2006 in Manila. She further stated: "Without the rule of law, government officials are not
bound by standards of conduct. Without the rule of law, the dignity and equality of all people is not affirmed and their ability to
seek redress for grievances and societal commitments is limited. Without the rule of law, we have no means of ensuring
meaningful participation by people in formulating and enacting the norms and standards which organize the kinds of societies in
which we want to live."
2
GR No. 127325, March 19, 1997, 336 Phil. 848. For ease of reference, my Separate Opinion is reproduced in full:
"Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:
(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the initiatory Delfin Petition.
(2) While the Constitution allows amendments to be directly proposed by the people through initiative, there is no
implementing law for the purpose. RA 6735 is incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned.
(3) Comelec Resolution No. 2300, insofar as it prescribes rules and regulations on the conduct of initiative on
amendments to the Constitution, is void.
"I concur with the first item above. Until and unless an initiatory petition can show the required number of signatures in
this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district no public funds
may be spent and no government resources may be used in an initiative to amend the Constitution. Verily, the Comelec
cannot even entertain any petition absent such signatures. However, I dissent most respectfully from the majoritys two
other rulings. Let me explain.
"Under the above restrictive holdings espoused by the Courts majority, the Constitution cannot be amended at all
through a peoples initiative. Not by Delfin, not by PIRMA, not by anyone, not even by all the voters of the country acting
together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the peoples right to
change the basic law. At the very least, the majority holds the right hostage to congressional discretion on whether to
pass a new law to implement it, when there is already one existing at present. This right to amend through initiative, it
bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:
their final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as their
reserved instruments to exact transparency, accountability and faithfulness from their chosen leaders. While on the one
hand, their misuse and abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully
nurtured and zealously protected.
"WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent Commission
on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other grounds relied upon by the
majority. I also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in proposing amendments to the
Constitution."
3
GR No. 129754, September 23, 1997 (still unpublished in the Philippine Reports or in the Supreme Court Reports Annotated).
Again, for ease of reference, I reproduce my Separate Opinion in full:
"Petitioners assail the July 8, 1997 Resolution of Respondent Commission dismissing their petition for a peoples initiative
to amend the Constitution. Said petition before the Comelec (henceforth, PIRMA petition) was backed up by nearly six (6)
million signatures constituting about 16% of the registered voters of the country with at least 3% in each legislative
district. The petition now before us presents two grounds:
"1. In refusing to act on the PIRMA petition, the Comelec allegedly acted with grave abuse of discretion amounting to lack
or excess of jurisdiction; and
"2. In declaring R.A. 6735 "inadequate to cover its system of initiative on amendments to the Constitution" and "declaring
void those parts of Resolution 2300 of the Commission on Elections prescribing rules and regulations on the conduct of
[an] initiative [on] amendments to the Constitution," the Supreme Courts Decision in G.R. No. 127325 entitled Miriam
Defensor Santiago vs. Commission on Elections (hereafter referred to as Santiago) should be reexamined because said
Decision is allegedly "unconstitutional," and because, in any event, the Supreme Court itself, in reconsidering the said
issue per its June 10, 1997 Resolution, was deadlocked at six votes one each side.
"The following in my position on each of these two issues:
First Issue:
No Grave Abuse of Discretion in Comelecs Refusal to Act
"The Respondent Commissions refusal to act on the "prayers" of the PIRMA petition cannot in any wise be branded as
"grave abuse of discretion." Be it remembered that the Courts Decision in Santiago permanently enjoined the Comelec
"from entertaining or taking cognizance of any petition for initiative on amendments to the
4
Republic v. COCOFED, 423 Phil. 735, December 14, 2001.
5
Well-entrenched is this definition of grave abuse of discretion. Id.; Benito v. Comelec, 349 SCRA 705, January 19, 2001;
Defensor-Santiago v. Guingona Jr., 359 Phil. 276, November 18, 1998; and Philippine Airlines, Inc. v. Confesor, 231 SCRA 41,
March 10, 1994.
6
In PIRMA, I submitted as follows: "I believed, and still do, that the majority gravely erred in rendering such a sweeping injunction
[that covered ANY petition, not just the Delfin petition], but I cannot fault the Comelec for complying with the ruling even if it, too,
disagreed with said decisions ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of the land. It had
no choice but to obey. Its obedience cannot constitute grave abuse of discretion. Regusal to act on the PIRMA petition was the
only recourse open to the Comelec. Any other mode of action would have constituted defiance of the Court and would have been
struck down as grave abuse of discretion and contumacious disregard of this Courts supremacy as the final arbiter of justiciable
controversies."
7
42 Am. Jr. 2d, 26, citing Birmingham Gas Co. v. Bessemer; 250 Ala 137, 33 So 2d 475, 250 Ala 137; Tacker v. Board of
Comrs., 127 Fla 248, 170 So 458; Hoxie V. Scott, 45 Neb 199, 63 NW 387; Gill v. Board of Comrs., 160 NC 176, 76, SE 204.
8
Partido ng Manggagawa v. Comelec, GR No. 164702, March 15, 2006.
9
Article XVII (AMENDMENTS OR REVISIONS)
"SEC. 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon the 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 though initiative upon a
petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.
"SEC. 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority
vote of all its Members, submit to the electorate the question of calling such a convention.
"SEC. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the
approval of such amendment or revision.
"Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of
the sufficiency of the petition."
10
Republic Act 6735, Sec. 10, provides:
"SEC. 10. Prohibited Measures. The following cannot be the subject of an initiative or referendum petition:
(a) No petition embracing more than one subject shall be submitted to the electorate; and
(b) Statutes involving emergency measures, the enactment of which are specifically vested in Congress by the
Constitution, cannot be subject to referendum until ninety (90) days after its effectivity."
11
The principle of separation of powers operates at the core of a presidential form of government. Thus, legislative power is
given to the legislature; executive power, to a separate executive (from whose prominent position in the system, the presidential
nomenclature is derived); and judicial power, to an independent judiciary. This system embodies interdependence by separation.
On the other hand, a parliamentary system personifies interdependence by integration, its essential features being the following:
"(1) The members of the government or cabinet or the executive arm are, as a rule, simultaneously members of the legislature.
(2) The government or cabinet, consisting of the political leaders of the majority party or of a coalition who are also members of
the legislative, is in effect a committee of the legislature. (3) The government or cabinet has a pyramidal structure, at the apex of
which is the Prime Minister or his equivalent. (4) The government or cabinet remains in power only for as long as it enjoys the
support of the majority of the legislature. (5) Both government and legislature are possessed of control devices with which each
can demand of the other immediate political responsibility." These control devices are a vote of no-confidence (censure),
whereby the government may be ousted by the legislature; and the power of the government to dissolve the legislature and call
for new elections. (J. BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A COMMENTARY, Vol. II, 17-
18 (1988 ed.).
With respect to the transformation from a bicameral to a unicameral legislature, the change involves the form of representation
and the lawmaking process.
12
Attached to the Opposition-in-Intervention of Intervenors OneVoice Inc., etc., is a photocopy of the Certification dated August
23, 2006, issued by Atty. Marlon S. Casquejo, the election officer for the 3
rd
District and the officer-in-charge for the 1
st
and the
2
nd
Districts of Davao City. The Certification states that "this office (First, Second and Third District, Davao City) has not verified
the signatures of registered voters x x x."
13
In People v. Veneracion, the Court held: "Obedience to the rule of law forms the bedrock of our system of justice. If judges,
under the guide of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are
required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men, excludes
the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule
of Law, and ought to protect and enforce it without fear or favor, resist encroachments by governments, political parties, or even
the interference of their own personal beliefs." (249 SCRA 244, October 13, 1995, per Kapunan, J.)
14
An American professor on legal philosophy, A. Altman, puts it thus: "By ratifying the constitution that included an explicit
amendment process, the sovereign people committed themselves to following the rule of law, even when they wished to make
changes in the basic system of government." A. ALTMAN, ARGUING ABOUT LAW 94 (2001).
15
See my Separate Opinion in Francisco Jr. v. House of Representatives, 415 SCRA 45, November 10, 2003.
16
See, for instance, the front page Malaya report entitled "Lobbyists soil dignity of Supreme Court" (October 23, 2006).
17
Lk 8:17.
YNARES-SANTIAGO, J .:
1
G.R. No. 127325, March 19, 1997, 270 SCRA 106.
2
SEC. 5. Requirements.x x x
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case
may be;
c.2. the proposition;
c.3. the reason or reasons therefore;
c.4. that it is not one of the exceptions provided herein;
c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary proposition in not more than one hundred (100) words which shall be legibly written or
printed at the top of every page of the petition.
3
SEC. 3. Definition of Terms.For purposes of this Act, the following terms shall mean: x x x
(d) "Proposition" is the measure proposed by the voters.
4
I Record, Constitutional Commission 387-389 (July 9, 1986).
5
Community Gas and Service Company, Inc. v. Walbaum, 404 P.2d 1014, 1965 OK 118 (1965).
6
Section 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.
7
The late Senator (then Congressman) Raul S. Roco stated this fact in his sponsorship presentation of H.B. No. 21505, thus:
x x x x
D. Prohibited Subjects.
The bill provides for two kinds of measures which cannot be the subject of an initiative or referendum petition. A petition
that embraces more than one subject cannot be submitted to the electorate as it would be violative of the constitutional
proscription on passing bills containing more than one subject, and statutes involving emergency measures cannot be
subject to referendum until 90 days after its effectivity. [Journal and record of the house of representatives, Second
Regular Session, Vol. 6, p. 975 (February 14, 1989).]
8
Memorandum of petitioner Aumentado, p. 117.
9
The proposed Section 4(3) of Article XVIII of the Constitution states that Senators whose term of office ends in 2010 shall be
members of parliament until noon of the thirtieth day of June 2010. No counterpart provision was provided for members of the
House of Representatives who, as members of the interim parliament under the proposed changes, shall schedule the elections
for the regular parliament in its discretion.
10
The proposed Section 4(3), Article XVIII of the Constitution states that the interim parliament shall convene to propose
amendments to, or revisions of, the Constitution within 45 days from ratification of the proposed changes.
11
The United Kingdom, for instance, has a two-house parliament, the House of Lords and the House of Commons.
12
Philippine Political Law [1954 ed.], Vicente G. Sinco, pp. 43-44, quoted in Separate Opinion of J. Hilario G. Davide, Jr. in
PIRMA v. COMELEC, G.R. No. 129754, September 23, 1997, p. 7.
13
151-A Phil. 35 (1973).
14
196 P. 2d 787 (Cal. 1948), cert. denied, 336 U.S. 918 (1949).
15
801 P. 2d 1077 (Cal. 1990).
16
583 P. 2d 1281 (Cal. 1982).
17
Raven v. Deukmeijan, supra, citing Brosnahan v. Brown, 651 P. 2d 274 (Cal. 1982).
18
Supra note 13. It may well be pointed out that in making the distinction between amendment and revision, Justice Antonio
relied not only in the analogy presented in Wheeler v. Board of Trustees, 37 S.E. 2d 322, but cited also the seminal ruling of the
California Supreme Court in McFadden v. Jordan, supra.
19
Philippine Political Law, 1995 ed., Justice Isagani A. Cruz, p. 71, citing Pangasinan Transportation Co. v. PSC, 40 O.G.,
8
th
Supp. 57.
20
The 1987 Constitution of the Philippines: A Commentary, 1996 ed., Fr. Joaquin G. Bernas, S.J., p. 1161.
21
Id.
22
Supra note 14.
23
The Constitution of the Republic of the Philippines, Vol. II, 1
st
ed., Fr. Joaquin G. Bernas, S.J., p. 567, citing B. Schwartz, I The
Powers of Government (1963).
24
16 C.J.S. 3 at 24.
25
14 T.M. Cooley, II Constitutional Limitations, 8th ed. (1927), p. 1349.
26
A bogus revolution, Philippine Daily Inquirer, September 11, 2006, Fr. Joaquin Bernas, S.J., p. A15.
27
Article II, Section 1 of the 1987 Constitution.
SANDOVAL-GUTIERREZ, J .:
1
Works, Letter 164.
2
G.R. No. 127325, March 19, 1997, 270 SCRA 106.
3
Resolution dated June 10, 1997, G.R. No. 127325.
4
G.R. No. 129754, September 23, 1997. Joining PIRMA as petitioners were its founding members, spouses Alberto Pedrosa and
Carmen Pedrosa.
5
Entitled "In the Matter of Proposing Amendments to the 1987 Constitution through a Peoples Initiative: A Shift from a Bicameral
Presidential to a Unicameral Parliamentary Government by Amending Articles VI and VII; and Providing Transitory Provisions for
the Orderly Shift from the Presidential to the Parliamentary System."
6
Among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V.
Ople, and Carlos P. Medina, Jr., Alternative Law Groups, Inc., Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators
Sergio Osmea III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada,
Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel, Bayan, Kilusang Mayo Uno,
Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Womens Party, Anakbayan, League of Filipino Students, Leonardo
San Jose, Jojo Pineda, Drs. Darby Santiago and Reginald Pamugas, and Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz,
Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong.
7
"Grounds for contempt
3. From the time the so-called Peoples Initiative (hereafter PI) now subject of Lambino v. Comelec, was
initiated, respondents did nothing to stop what was clearly lawless, and even arguably winked at, as it were, if not
condoned and allowed, the waste and misuse of its personnel, time, facilities and resources on an enterprise
that had no legal basis and in fact was permanently enjoined by this Honorable Court in 1997. Seemingly
mesmerized, it is time to disenthrall them.
3.1. For instance, undersigned counsel happened to be in the Senate on August 29, 2006 (on other business) when
respondent Chair sought to be stopped by the body from commenting on PI out of prudential considerations, could not be
restrained. On contentious issues, he volunteered that Sigaw ng Bayan would not cheat in Makati as it was the
opposition territory and that the fact that out of 43,405 signatures, only 7,186 were found authentic in one Makati
District, to him, showed the "efficiency" of Comelec personnel. He could not appreciate 1) that Sigaw had no
choice but to get the constitutionality-required 3% in every district, [Const., Art. VII, Sec. 2] friendly or otherwise,
including administration critics turfs, and 2) that falsus in 36,319 (93.30%) falsus in omnibus, in an exercise that
could never be free, orderly, honest and credible, another constitutional requirement. [Nothing has been heard
about probing and prosecuting the falsifiers.]
x x x x x x x x x
3.2. It was excessively obvious to undersigned and other observers that respondent Chairman, straining at the
leash, was lawyering for Sigaw ng Bayan in the Senate! It was discomfiting that he would gloss over the seeming
wholesale falsification of 96.30% of the signatures in an exercise with no credibility! Even had he been asked, he
should have pled to be excused from answering as the matter could come up before the Comelec for an official
collegial position (different from conceding that it is enjoined).
x x x x x x x x x
4. Respondents Commissioners Borra and Romeo A. Brawner, for their part, even issued widely-publicized
written directives to the field, [Annex C, as to Commissioner Brawner; that as to Commissioner Borra will
follow.] while the Commission itself was trying to be careful not to be explicit in what it was abetting implicitly, in
hypocritical defiance of the injunction of 1997.
8
Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, G.R. No. 72424, February 13, 1989, 170 SCRA 246.
9
Supra.
10
Development Bank of the Philippines v. NLRC, March 1, 1995, 242 SCRA 59; Albert v. Court of First Instance of Manila
(Branch VI), L-26364, May 29, 1968, 23 SCRA 948.
11
56 O.G. 3546 cited in Albert v. Court of First Instance of Manila (Branch VI), id.
12
Supra.
13
Separate Opinion of Justice Ricardo J. Francisco, G.R. No. 129754, September 23, 1997.
14
G.R. No. 109645, March 4, 1996, 254 SCRA 234.
15
Philippine National Bank v. Palma, G.R. No. 157279, August 9, 2005, 466 CSRA 307, citing Moreno, Philippine Law Dictionary
(1988), 3
rd
ed. (citing Santiago v. Valenzuela, 78 Phil. 397, [1947]).
16
Id., citing Dela Cruz v. Court of Appeals, G.R. No. 126183, March 25, 1999, 305 SCRA 303, citing Government v. Jalandoni,
No. 837-R, August 30, 1947, 44 O.G. 1840.
17
Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and London: Yale University Press, 1921), pp. 33-34.
18
William K. Frankena, Ethics, 2
nd
ed. (Englewood Cliffs, N.J.: Prentice Hall Inc.,) 1973, p. 49.
19
Moradi-Shalal v. Firemans Fund Ins. Companies (1988) 46 Cal.3d 287, 296.
20
July 9, 1986. Records of the Constitutional Commission, No. 26.
21
Bernas, THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY, 1996 Ed., p. 1161.
22
242 N. W. 891 259 Mich 212.
23
State v. Orange [Tex. x. Civ. App.] 300 SW 2d 705, People v. Perkins 137, p. 55.
18
City of Midland v. Arbury 38 Mich. App. 771, 197 N.W. 2d 134.
25
Adams v. Gunter Fla, 238 So. 2d 824.
26
196 P.2d 787.
27
Adams v. Gunter Fla. 238 So.2d 824.
28
Mc Fadden v. Jordan, supra.
29
Rivera-Cruz v. Gray, 104 So.2d 501, p. 505 (Fla. 1958).
30
Joaquin Bernas, Sounding Board: AMENDMENT OR REVISION, Philippine Daily Inquirer, September 25, 2006.
31
See Sections 8-12 for national initiative and referendum, and sections 13-19 for local initiative and referendum.
32
Section 2. Statement of Policy. The power of the people under a system of initiative and referendum to directly propose,
enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body
upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed.
33
Section 3. Definition of terms.-
x x x
a.1. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;
x x x
34
See Section 3(e).
35
Section 5 (b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total
number of registered voters as signatories, of which every legislative district must be represented by at least three per centum
(3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification
of the 1987 Constitution and only once every five (5) years thereafter.
x x x
36
Section 9 (b) The proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall
become effective as to the day of the plebiscite.
37
7 How (48 US) 1 (1849).
38
328 US 549 (1946).
39
77 Phil. 192 (1946).
40
103 Phi. 1051 (1957).
41
G.R. No. 35546, September 17, 1974, 50 SCRA 559.
42
369 US 186 (1962).
43
G.R. No. 85344, December 21, 1989, 180 SCRA 496.
44
G.R. No. 88211, September 15, 1989, 177 SCRA 668.
45
Nos. L-36142, L-36164, L-36165, L-36236, and L-36283, March 31, 1973, 50 SCRA 30.
CALLEJO, SR., J .:
1
Entitled An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor.
2
Section 2(1), Article IX-C, 1987 Constitution.
3
Petition, pp. 12-14.
4
Land Bank of the Philippines v. Court of Appeals, G.R. No. 129368, August 25, 2003, 409 SCRA 455, 480.
5
Rodson Philippines, Inc. v. Court of Appears, G.R. No. 141857, June 9, 2004, 431 SCRA 469, 480.
6
People v. Court of Appeals, G.R. No. 144332, June 10, 2004, 431 SCRA 610.
7
Philippine Rabbit Bus Lines, Inc. v. Galauran & Pilares Construction Co., G.R. No. L-35630, November 25, 1982, 118 SCRA
664.
8
People v. Court of Appeals, supra.
9
G.R. No. 127325, March 19, 1997, 270 SCRA 106.
10
Article 8, New Civil Code provides that "[j]udicial decisions applying or interpreting the laws or the Constitution shall form part of
the legal system of the Philippines."
11
Suson v. Court of Appeals, G.R. No. 126749, August 27, 1997, 278 SCRA 284.
12
Calderon v. Carale, G.R. No. 91636, April 23, 1992, 208 SCRA 254.
13
974 S.W.2d 451 (1998).
14
Id. at 453.
15
Entitled In Re: Rules and Regulations Governing the Conduct of Initiative in the Constitution, and Initiative and Referendum on
National and Local Laws.
16
Supra note 10, p. 157.
17
G.R. No. 129754.
18
Minute Resolution, September 23, 1997, pp. 1-2.
19
Republic v. De los Angeles, No. L-26112, October 4, 1971, 41 SCRA 422.
20
Albert v. Court of First Instance of Manila, No. L-26364, May 29, 1968, 23 SCRA 948.
21
Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA 506.
22
Then Chief Justice Andres R. Narvasa, Justices Florenz D. Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago
M. Kapunan and Justo P. Torres, Jr. fully concurred in the ponencia of Justice Davide.
23
Justices Jose A.R. Melo, Vicente V. Mendoza, Reynato S. Puno, Ricardo J. Francisco, Jr. and Artemio V. Panganiban (now
Chief Justice).
24
The voting on the motion for reconsideration was as follows: Six Justices, namely, Chief Justice Narvasa, and Justices
Regalado, Davide, Jr., Romero, Bellosillo and Kapunan, voted to deny the motions for lack of merit; and six Justices, namely,
Justices Melo, Puno, Mendoza, Francisco, Jr., Regino C. Hermosisima and Panganiban voted to grant the same. Justice Vitug
maintained his opinion that the matter was not ripe for judicial adjudication. Justices Teodoro R. Padilla and Torres inhibited from
participation in the deliberations.
25
House Bill No. 457 filed by then Rep. Nachura during the Twelfth Congress.
26
See Pagdayawon v. Secretary of Justice, G.R. No. 154569, September 23, 2002, 389 SCRA 480.
27
London Street Tramways Co., Ltd. v. London County Council, [1898] A.C. 375, cited in COOLEY, A Treatise on the
Constitutional Limitations 117-118.
28
Amended Petition for Initiative, pp. 4-7.
29
Id. at 7.
30
I Records of the Constitutional Commission 373.
31
Id. at 371.
32
Id. at 386.
33
Id. at 392.
34
Id. at 402-403.
35
No. L-36142, March 31, 1973, 50 SCRA 30.
36
Id. at 367.
37
SINCO, Philippine Political Law 43-44.
38
37 S.E.2d 322 (1946).
39
Id. at 330.
40
Id.
41
Sounding Board, Philippine Daily Inquirer, April 3, 2006.
42
Introduction to the Journal of the Constitutional Commission.
43
BLACK, Constitutional Law 1-2, citing 1 BOUV. INST. 9.
44
SCHWARTZ, CONSTITUTIONAL LAW 1.
45
Proclamation No. 58, 83 O.G. No. 23, pp. 2703-2704, June 8, 1987.
46
See McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909).
47
Id.
48
196 P.2d 787 (1948).
49
Id. at 798.
50
Ellingham v. Dye, 99 N.E. 1 (1912).
51
Dissenting Opinion of Justice Puno, p. 36.
52
Id. at 39.
53
Supra note 38.
54
McFadden v. Jordan, supra note 48.
55
Id. at 799.
56
Supra note 41.
57
Annex "1363."
58
Annex "1368."
59
Annex "1369."
60
Annex "1370."
61
Annex "1371."
62
Annex "1372."
63
Annex "1374."
64
Annex "1375."
65
Annex "1376."
66
Annex "1377."
67
Annex "1378."
68
Annex "1379."
69
Annex "1380."
70
Annex "1381."
71
Annex "1382."
72
Annex "1383."
73
Annex "1385."
74
Annex "1387."
75
Annex "1388."
76
Annex "1389."
77
Annex "1391."
78
Annex "1392."
79
Annex "1393."
80
Annex "1395."
81
Annex "1396."
82
Annex "1397."
83
Annex "1398."
84
Annex "1399."
85
Annex "1400."
86
Annex "1401."
87
Annex "1402."
88
Annex "1404."
89
Annex "1405."
90
Annex "1406."
91
Annex "1407."
92
Annex "1408."
93
Annex "1409."
94
Annex "1410."
95
Annex "1411."
96
Annex "1412."
97
Arroyo, Jr. v. Taduran, G.R. No. 147012, January 29, 2004, 421 SCRA 423.
98
See, for example, Mendoza v. Court of Appeals, No. L-62089, March 9, 1988, 158 SCRA 508.
99
Licaros v. Sandiganbayan, G.R. No. 145851, November 22, 2001, 370 SCRA 394.
100
Codilla, Sr. v. De Venecia, G.R. No. 150605, December 10, 2002, 393 SCRA 639.
101
Teope v. People, G.R. No. 149687, April 14, 2004, 427 SCRA 540.
102
Taada v. Cuenco, 103 Phil. 1051 (1957).
103
Id.
104
G.R. No. 127255, August 14, 1997, 277 SCRA 268, 311-312.
105
Dissenting Opinion of Justice Fernando in Javellana v. Executive Secretary, supra note 36.
106
119 N.W. 408 (1909).
107
22 Minn. 400 (1876).
108
96 S.W. 396 (1906).
109
63 N.J. Law 289.
110
77 Miss. 543 (1900).
111
Section 1, Article II, 1987 Constitution.
112
Dissenting Opinion of Justice Puno, p. 49.
113
COOLEY, A Treatise on the Constitutional Limitations 56, cited in Ellingham v. Dye, supra.
114
Hunter v. Colfax Consol. Coal. Co., 154 N.W. 1037 (1915).
115
ALTMAN, ARGUING ABOUT THE LAW 94 (2001), citing AGRESTO, THE SUPREME COURT AND CONSTITUTIONAL
DEMOCRACY (1984)
116
McBee v. Brady, 100 P. 97 (1909).
117
McFadden v. Jordan, supra note 48.
118
Cooley, Am.Law.Rev. 1889, p. 311, cited in Ellingham v. Dye, supra.
119
15 N.W. 609 (1883).
120
Id. at 630.
AZCUNA, J .:
1
G.R. No. 127325, March 19, 1997 and June 10, 1997.
2
100 Phil. 501 (1956).
PUNO, J .:
1
McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 407 (1819).
2
Section 1, Article II, 1987 Constitution.
3
270 SCRA 106, March 19, 1997.
4
Id. at 153.
5
Id. at 157.
6
Justice Teodoro R. Padilla did not take part in the deliberation as he was related to a co-petitioner and co-counsel of petitioners.
7
Justice Davide (ponente), Chief Justice Narvasa, and Justices Regalado, Romero, Bellosillo, and Kapunan.
8
Resolution dated June 10, 1997, G.R. No. 127325.
9
Peoples Initiative for Reforms, Modernization and Action (PIRMA) v. Commission on Elections, G.R. No. 129754, September
23, 1997.
10
Amended Petition for Initiative, pp. 4-7.
11
G.R. No. 127325, March 19, 1997, 270 SCRA 106.
12
Petition, pp. 12-14.
13
Advisory issued by Court, dated September 22, 2006.
14
Exhibit "B," Memorandum of Petitioner Lambino.
15
Barnhart, Principled Pragmatic Stare Decisis in Constitutional Cases, 80 Notre Dame Law Rev., 1911-1912, (May 2005).
16
Ibid.
17
Id. at 1913.
18
Consovoy, The Rehnquist Court and the End of Constitutional Stare Decisis: Casey, Dickerson and the Consequences of
Pragmatic Adjudication, 53 Utah Law Rev. 53, 67 (2002).
19
Id. at 68.
20
Id. at 69.
21
Id. at 67.
22
Id. at 69.
23
Consovoy, supra note 18, at 57.
24
Id. at 58.
25
Id. at 64.
26
Burnet v. Coronado Oil & Gas Co., 285 U.S. 405-06 (1932) (Justice Brandeis, dissenting).
27
Graves v. New York ex rel. OKeefe, 306 U.S. 466, 491-492 (Justice Frankfurter, concurring).
28
Commissioner of Internal Revenue v. Fink, 483 U.S. 89 (1987) (Justice Stevens, dissenting).
29
Barnhart, supra note 15, at 1922.
30
Id. at 1921.
31
Filippatos, The Doctrine of Stare Decisis and the Protection of Civil Rights and Liberties in the Rehnquist Court, 11 Boston
College Third World Law Journal, 335, 343 (Summer 1991).
32
347 U.S. 483 (1954).
33
163 U.S. 537 (1896).
34
G.R. No. 127882, December 1, 2004, 445 SCRA 1.
35
G.R. No. 139465, October 17, 2000, 343 SCRA 377.
36
Barnhart, supra note 15, at 1915.
37
112 S.Ct. 2791 (1992).
38
Section 5(b).
39
Ibid.
40
Santiago v. Commission on Elections, supra note 11, at 145.
41
85 Record of the House of Representatives 140-142 (February 14, 1989).
42
85 Record of the house of representatives 142-143 (February 14, 1989).
43
Zeringue v. State Dept. of Public Safety, 467 So. 2d 1358.
44
I RECORD, CONSTITUTIONAL COMMISSION 386, 392 (July 9, 1986).
45
Id. at 400, 402-403.
46
v record, constitutional commission 806 (October 10, 1986).
47
Opposition-in-Intervention filed by ONEVOICE, p. 39.
48
Opposition-in-Intervention filed by Alternative Law Groups, Inc., p. 30.
49
Introduction to Political Science, pp. 397-398.
50
Section 1, Art. II of the 1987 Constitution.
51
Eighth Edition, p. 89 (2004).
52
Ibid.
53
Id. at 1346.
54
Ibid.
55
Third Edition, p. 67 (1969).
56
Id. at 68.
57
Id. at 1115.
58
Vicente G. Sinco, Philippine Political Law, 2
nd
ed., p. 46.
59
Concurring Opinion of Mr. Justice Felix Q. Antonio in Javellana v. The Executive Secretary, No. L-361432, March 31, 1973, 50
SCRA 30, 367-368.
60
J. M. Aruego, The New Philippine Constitution Explained, iii-iv (1973).
61
E. Quisumbing-Fernando, Philippine Constitutional Law, pp. 422-425 (1984).
62
N. Gonzales, Philippine Political Law 30 (1969 ed.).
63
Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317, 337 quotingCommonwealth
v. Ralph, 111 Pa. 365, 3 Alt. 220 (1886).
64
L-36142, March 31, 1973, 50 SCRA 30, 367.
65
i record, constitutional commission 373 (July 8, 1986).
66
The opinion was actually made by Justice Felix Antonio.
67
Javellana v. Executive Secretary, supra note 64, citing Wheeler v. Board of Trustees, 37 S.E.2d 322, 327 (1946).
68
T. M. Cooley, I A Treatise on Constitutional Limitations 143-144 (8
th
ed. 1927).
69
H.C. Black, Handbook of American Constitutional Law S. 47, p. 67 (2
nd
ed. 1897).
70
V. Sinco, supra note 58.
71
Ibid.
72
No. L-1232, 79 Phil. 819, 826 (1948).
73
IV RECORD, CONSTITUTIONAL COMMISSION 735 (September 17, 1986).
74
Id. at 752.
75
Id. at 769.
76
Id. at 767-769.
77
Id. at 377.
78
Id. at 395.
79
Sinco, supra note 58, at 22.
80
Id. at 20-21.
81
Frivaldo v. Commission on Elections, G.R. No. 120295, June 28, 1996, 257 SCRA 727.
82
G. Wood, The Creation of the American Republic, 530.
83
Sinco, supra note 58, at 29.
84
State v. Moore, 103 Ark 48, 145 SW 199 (1912); Whittemore v. Seydel, 74 Cal App 2d 109 (1946).
85
Town of Whitehall v. Preece, 1998 MT 53 (1998).
86
G.R. No. 125416, September 26, 1996, 262 SCRA 492, 516-517, citing 42 Am. Jur. 2d, p. 653.
87
Memorandum for petitioner Aumentado, pp. 151-152.
88
Id. at 153-154.
89
L-44640, October 12, 1976, 73 SCRA 333, 360-361.
90
Section 2, Article XVII, 1987 Constitution.
91
Annex "3," Opposition-In-Intervention of Oppositors-Intervenors ONEVOICE, INC., et al.
92
Certification dated April 21, 2006 issued by Reynne Joy B. Bullecer, Annex "B," Memorandum of Oppositor-Intervenor
Pimentel, et al.; Certification dated April 20, 2006 issued by Atty. Marlon S. Casquejo, Annex "C," Memorandum of Oppositor-
Intervenor Pimentel, et al.; Certification dated April 26, 2006 issued by Atty. Marlon S. Cascuejo, Annex "D," Memorandum of
Oppositor-Intervenor Pimentel, et al.
93
Annex "1," Memorandum of Oppositor-Intevenor Antonino.
94
Annex "10-A," Memorandum of Oppositor-Intevenor Joseph Ejercito Estrada, et al.
95
Annexes 1-29, Memorandum of Oppositor-Intevenor Alternative Law Groups, Inc.
96
Annexes 30-31, Id.
97
Annexes 44-64, Id.
98
Consolidated Reply of Petitioner Aumentado, p. 54.
99
Exhibit "E," Memorandum of Petitioner Lambino.
100
Annex "A," Consolidated Response of Petitioner Aumentado.
101
Memorandum of Oppositor-Intevenor Pimentel, et al., pp. 12-13.
102
Helvey v. Wiseman, 199 F. Supp. 200, 8 A.F.T.2d 5576 (1961).
103
BNO Leasing Corp. v. Hollins & Hollins, Inc., 448 So.2d 1329 (1984).
104
ASSOCIATE JUSTICE CARPIO:
How many copies of the petition, that you mention(ed), did you print?
ATTY. LAMBINO:
We printed 100 thousand of this petition last February and we
distributed to the different organizations that were volunteering to support us.
ASSOCIATE JUSTICE CARPIO:
So, you are sure that you personally can say to us that 100 thousand of
these were printed?
ATTY. LAMBINO:
It could be more than that, Your Honor.
x x x x x x x x x x x x
ASSOCIATE JUSTICE CARPIO:
But you asked your friends or your associates to re-print, if they can(?)
ATTY. LAMBINO:
Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO:
Okay, so you got 6.3 Million signatures, but you only printed 100
thousand. So youre saying, how many did your friends print of the petition?
ATTY. LAMBINO:
I can no longer give a specific answer to that, Your Honor. I relied
only to the assurances of the people who are volunteering that they are going to
reproduce the signature sheets as well as the draft petition that we have given them, Your Honor.
x x x x x x x x x x x x
ASSOCIATE JUSTICE CARPIO:
Did you also show this amended petition to the people?
ATTY. LAMBINO:
Your Honor, the amended petition reflects the copy of the original
petition that we circulated, because in the original petition that we filed before the COMELEC, we omitted a certain
paragraph that is, Section 4 paragraph 3 which were part of the original petition that we circulated and so we have to
correct that oversight because that is what we have circulated to the people and we have to correct that
ASSOCIATE JUSTICE CARPIO:
But you just stated now that what you circulated was the petition of
August 25, now you are changing your mind, youre saying what you circulated was the petition of August 30, is that
correct?
ATTY. LAMBINO:
In effect, yes, Your Honor.
ASSOCIATE JUSTICE CARPIO:
So, you circulated the petition of August 30, but what you filed in the
COMELEC on August 25 was a different petition, thats why you have to amend it?
ATTY. LAMBINO:
We have to amend it, because there was an oversight, Your Honor, that
we have omitted one very important paragraph in Section 4 of our proposition.
x x x x x x x x x x x x
ASSOCIATE JUSTICE CARPIO:
Okay, lets be clear. What did you circulate when you gathered the
signatures, the August 25 which you said you circulated or the August 30?
ATTY. LAMBINO:
Both the August 25 petition that included all the provisions, Your
Honor, and as amended on August 30. Because we have to include the one that
we have inadvertently omitted in the August 25 petition, Your Honor.
x x x x x x x x x x x x
ASSOCIATE JUSTICE CARPIO:
And (you cannot tell that) you can only say for certain that you printed
100 thousand copies?
ATTY. LAMBINO:
That was the original printed matter that we have circulated by the
month of February, Your Honor, until some parts of March, Your Honor.
ASSOCIATE JUSTICE CARPIO:
That is all you can assure us?
ATTY. LAMBINO:
That is all I can assure you, Your Honor, except that I have asked some
friends, like for example (like) Mr. Liberato Laos to help me print out some more of this petition (TSN, September 26,
2006, pp. 7-17)
105
Section 2 (1), Article IX C, 1987 Constitution.
106
Chief Justice Andres R. Narvasa and Justices Hilario G. Davide, Jr., Florenz D. Regalado, Flerida Ruth P. Romero, Josue N.
Bellosillo, Santiago M. Kapunan, Regino C. Hermosisima, Jr. and Justo P. Torres.
107
Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J. Francisco and Artemio V. Panganiban.
108
Justice Jose C. Vitug.
109
Only fourteen (14) justices participated in the deliberations as Justice Teodoro R. Padilla took no part on account of his
relationship with the lawyer of one of the parties.
110
Citing conscience as ground.
111
409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
112
Trans World Airlines, Inc. v. Hardison, 97 S. Ct. 2264 (1977); Arkansas Writers Project, Inc. v. Ragland, 107 S. Ct. 1722, 1730
n. 7, 95 L. Ed. 2d (1987); France v. Nelson, 292 Ark. 219, 729 S.W. 2d 161 (1987).
113
40 P. 3d 886 (2006).
114
781 P. 2d 973 (Alaska, 1989).
115
Id. at 982-84 (Compton, J., concurring).
116
Id. at 975-78.
117
Negri v. Slotkin, 244 N.W. 2d 98 (1976).
118
112 Fla. 734, 151 So. 284 (1933).
119
Penned by Justice Whitfield, and concurred in by Chief Justice Davis and Justice Terrell; Justices Ellis, Brown and Buford are
of the opinion that chapter 15938, Acts of 1933, is a special or local law not duly advertised before its passage, as required by
sections 20 and 21 of article 3 of the state Constitution, and therefore invalid. This evenly divided vote resulted in the affirmance
of the validity of the statute but did not constitute a binding precedent on the Court.
120
62 S. Ct. 552 (1942).
121
329 F. 2d 541 (1964).
122
239 F. 2d 532 (9
th
Cir. 1956).
123
Citing Hertz v. Woodman, 218 U.S. 205, 30 S. Ct. 621 (1910).
124
331 N.E. 2d 65 (1975).
125
Neil v. Biggers, supra note 108.
126
Catherwood v. Caslon, 13 Mees. & W. 261; Beamish v. Beamish, 9 H. L. Cas. 274.
127
Maglalang v. Court of Appeals, G.R. No. 85692, July 31, 1989, 175 SCRA 808, 811, 812; Development Bank of the
Philippines v. Pundogar, G.R. No. 96921, January 29, 1993, 218 SCRA 118.
128
No. L-35440, August 19, 1982, 115 SCRA 839, citing Anticamara v. Ong, No. L-29689, April 14, 1978, 82 SCRA 337.
129
Supra note 1.
QUISUMBING, J .:
1
Political questions have been defined as "Questions of which the courts of justice will refuse to take cognizance, or to decide,
on account of their purely political character, or because their determination would involve an encroachment upon the executive
or legislative powers; e.g., what sort of government exists in a state." Blacks Law Dictionary, p. 1319 citing Kenneth v.
Chambers, 14 How. 38, 14 L.Ed. 316.
2
See 1987 Const., Art. XVII, Sec. 2.
3
G.R. No. 127325, March 19, 1997, 270 SCRA 106.
4
G.R. No. 129754, September 23, 1997.
CORONA, J .:
1
Abrams v. United States, 250 U.S. 616.
2
336 Phil. 848 (1997).
3
Santos v. Court of Appeals, G.R. No. 134787, 15 November 2005, 475 SCRA 1.
4
Feria and Noche, Civil Procedure Annotated, vol. I, 2001 edition, p. 419.
5
Sec. 30, Petitions and initiatives by the people, 16 Am Jur 2d 380, citing State ex rel. Stenberg v. Beermann, 240 Neb. 754, 485
N.W. 2d 151 (1992).
6
Id. citing Coalition for Political Honesty v. State Board of Elections, 83 Ill. 2d 236, 47 Ill. Dec. 363, 415 N.E. 2d 368 (1980).
7
Balitzer, Alfred, The Initiative and Referendum: A Study and Evaluation of Direct Legislation, The California Roundtable 13
(1981). The American Founding Fathers recognized that direct democracy posed a profound threat to individual rights and liberty.
The U.S. Constitution was "designed to provide a system of government that would prevent either a tyranny of the majority or a
tyranny of the few." James Madison "warned against the power of a majority or a minority of the population united and actuated
by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate
interest of the community.
8
Gilbert Hahn & Steven C. Morton, Initiative and Referendum Do They Encourage or Impair Better State Government? 5 FLA.
ST. U. L. REV. 925, 927 (1977).
9
Florida Advisory Council on Intergovernmental Relations, Initiatives and Referenda: Issues in Citizen Lawmaking (1986).
10
Sec. 1, Article II, Constitution.
11
In re Initiative Petition No. 362 State Question 669, 899 P.2d 1145 (Okla. 1995).
TINGA, J .:
1
G.R. No. 127325, 19 March 1997, 270 SCRA 106.
2
G.R. No. 129754, 23 September 1997.
3
Petitioner Aumentado aptly refers to the comment of the late Senator Raul Roco that the Santiago ruling "created a third specie
of invalid laws, a mongrel type of constitutional but inadequate and, therefore, invalid law." Memorandum for Aumentado, p. 54.
4
See Civil Code, Art. 9.
5
456 Phil. 1 (2003).
6
Id., at 10; citing I Arturo M. Tolentino, Civil Code of the Philippines 43 (1990) and Justice Benjamin N. Cardozo, The Nature of
the Judicial Process 113 (1921).
7
See Dissenting Opinion, Manila International Airport Authority v. City of Paraaque, G.R. No. 155650, 20 July 2006. In
my ponencia in Globe Telecom v. NTC, G.R. No. 143964, 26 July 2004, 435 SCRA 110, I further observed that while an
administrative agency was not enslaved to obey its own precedent, it was "essential, for the sake of clarity and intellectual
honesty, that if an administrative agency decides inconsistently with previous action, that it explain thoroughly why a different
result is warranted, or if need be, why the previous standards should no longer apply or should be overturned." Id., at 144.
Happily, Justice Punos present opinion expressly elucidates why Santiago should be reversed.
8
As Justice Frankfurter once wrote: "We recognize that stare decisis embodies an important social policy. It represents an
element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations. But stare decisis is a
principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when
such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by
experience This Court, unlike the House of Lords, has from the beginning rejected a doctrine of disability at self-
correction." Helvering v. Hallock, 309 U.S. 106, 119-121 (1940).
9
351 Phil. 692 (1998).
10
As Chief Justice Panganiban then cited: "For instance, Ebralinag vs. Davision Superintendent of Schools of Cebu, 219 SCRA
256, March 1, 1993, reversed the Courts 34-year-old doctrine laid down in Gerona vs. Secretary of Education, 106 Phil 2, August
12, 1959, and upheld the right of Jehovahs Witnesses "to refuse to salute the Philippine flag on account of their religious beliefs."
Similarly, Olaguer vs. Military Commission, 150 SCRA 144, May 22, 1987, abandoned the 12-year-old ruling in Aquino Jr. vs.
Military Commission, 63 SCRA 546, May 9, 1975, which recognized the jurisdiction of military tribunals to try civilians for offenses
allegedly committed during martial law. The Court likewise reversed itself in EPZA vs. Dulay, 149 SCRA 305, April 29, 1987,
when it vacated its earlier ruling in National Housing Authority vs. Reyes, 123 SCRA 245, June 29, 1983, on the validity of certain
presidential decrees regarding the determination of just compensation. In the much earlier case of Philippine Trust Co. vs.
Mitchell, 59 Phil. 30, December 8, 1933, the Court revoked its holding in Involuntary Insolvency of Mariano Velasco & Co., 55
Phil 353, November 29, 1930, regarding the relation of the insolvency law with the then Code of Civil Procedure and with the Civil
Code. Just recently, the Court, in Kilosbayan vs. Morato, 246 SCRA 540, July 17, 1995, also abandoned the earlier grant of
standing to petitioner-organization in Kilosbayan vs. Guingona, 232 SCRA 110, May 5, 1994." Id., at 780.
11
Ibid.
12
129 Phil. 507, 516 (1967).
13
G.R. Nos. L-78461, L-79146, & L-79212, 12 August 1987, 153 SCRA 67, 75.
14
G.R. No. 160427, 15 September 2004, 438 SCRA 319, 326.
15
Ibid.
16
G.R. No. 155855, 26 January 2004, 421 SCRA 92.
17
Id., at 104. Relatedly, the Court held that "[c] ontests which do not involve the election, returns and qualifications of elected
officials are not subjected to the exercise of the judicial or quasi-judicial powers of courts or administrative agencies". Ibid.
18
See e.g., Memorandum of Oppositors-Intervenors Senators Pimentel, Jr., et. al., pp. 19-22; Memorandum for Intervenor
Senate of the Philippines, pp. 34-35.
19
See 1987 Const., Art. VI, Sec. 26(1). See also Section 19[1]. 1987 Const, Art. VIII.
20
See e.g., Sumulong v. COMELEC, 73 Phil. 288, 291 (1941); Cordero v. Hon. Jose Cabatuando, et al., 116 Phil. 736, 741
(1962).
21
See Tio v. VRB, G.R. No. L-75697, 18 June 1987, 151 SCRA 208, 214-215; citing Public Service Co., Recktenwald, 290 Ill.
314, 8 A.L.R. 466, 470. See also Farias v. Executive Secretary, G.R. Nos. 147387 & 152161, 10 December 2003, 417 SCRA
503, 519.
22
"As a policy, this Court has adopted a liberal construction of the one title - one subject rule." Tatad v. Secretary of Department
of Energy, 346 Phil. 321, 359 (1997).
23
Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 & 83815; 22 February 1991, 194 SCRA 317.
24
Id. at 337. I have previously expressed my own doubts in relying on the constitutional or legislative deliberations as a definitive
source of construction. "It is easy to selectively cite passages, sometimes out of their proper context, in order to assert a
misleading interpretation. The effect can be dangerous. Minority or solitary views, anecdotal ruminations, or even the occasional
crude witticisms, may improperly acquire the mantle of legislative intent by the sole virtue of their publication in the authoritative
congressional record. Hence, resort to legislative deliberations is allowable when the statute is crafted in such a manner as to
leave room for doubt on the real intent of the legislature." Southern Cross Cement Corporation v. Phil. Cement Manufacturers,
G.R. No. G.R. No. 158540, 8 July 2004, 434 SCRA 65, 95.
25
77 Phil. 192 (1946).
26
Id. at 215.
27
Civil Liberties Union v. Executive Secretary, supra note 23, at 338; citing Household Finance Corporation v. Shaffner, 203 S.W.
2d 734, 356 Mo. 808.
28
See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec. 2, Art. XVI.
29
G.R. No. 151944, January 20, 2004, 420 SCRA 365.
30
Id., at 377. Emphasis supplied.
31
See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 Const., Sec. 2, Art. XVI.
32
From the "Funeral Oration" by Pericles, as recorded by Thucydides in the History of the Peloponnesian War.
33
H. Zinn, A Peoples History of the United States (1980 ed.), at 95.
CHICO-NAZARIO, J .:
1
The full text of the Preamble reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and
establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop
our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of
law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.
2
Article XVII, Constitution.
3
G.R. No. 127325, 19 March 1997, 270 SCRA 106.
4
Id. at 157.
5
Id. at 124.
6
Olac v. Rivera, G.R. No. 84256, 2 September 1992, 213 SCRA 321, 328-329; See also the more recent cases of Republic v.
Nolasco, G.R. No. 155108, 27 April 2005, 457 SCRA 400; and PH Credit Corporation v. Court of Appeals, 421 Phil. 821 (2001).
7
Supra note 2 at 124.
8
G.R. No. 129754.
9
Separate Opinion of former Chief Justice Hilario G. Davide, Jr. to the Resolution, dated 23 September 1997, in G.R. No.
129754, PIRMA v. COMELEC, pp. 2-3.
10
Mirpuri v. Court of Appeals, 376 Phil. 628, 650 (1999).
11
Pioneer Texturizing Corporation v. NLRC, G.R. No. 118651, 16 October 1997.
12
Santiago v. Comelec, supra note 2 at 170-171.
13
Isagani A. Cruz, Philippine Political Law, 1996 ed., p. 352.
VELASCO, JR., J .:
1
G.R. No. 127535, March 19, 1997, 270 SCRA 106.
2
Id.
3
Commission on Audit of the Province of Cebu v. Province of Cebu, G.R. No. 141386, November 29, 2001, 371 SCRA 196, 202.
4
United Harbor Pilots Association of the Philippines, Inc. v. Association of International Shipping Lines, Inc., G.R. No. 133763,
November 13, 2002, 391 SCRA 522, 533.
5
PH Credit Corporation v. Court of Appeals and Carlos M. Farrales, G. R. No. 109648, November 22, 2001, 370 SCRA 155, 166-
167.
6
Id.
7
Florentino v. Rivera, et al., G. R. No. 167968, January 23, 2006, 479 SCRA 522, 529.
8
G.R. No. 129754, September 23, 1997.
9
V. Sinco, Philippine Political Law, Principles and Concept 46 (1962).
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 100481 January 22, 1997
PHILIPPINE INTERISLAND SHIPPING ASSOCIATION OF THE PHILIPPINES, CONFERENCE OF INTERISLAND
SHIPOWNERS AND OPERATORS, UNITED PETROLEUM TANKER OPERATORS ASSOCIATION OF THE PHILIPPINES,
LIGHTERAGE ASSOCIATION OF THE PHILIPPINES and PILOTAGE INTEGRATED SERVICES
CORPORATION, petitioners,
vs.
COURT OF APPEALS, UNITED HARBOR PILOTS ASSOCIATION OF THE PHILIPPINES, INC. and MANILA PILOTS
ASSOCIATION, respondents.
G.R. No. 103716-17 January 22, 1997
HON. PETE NICOMEDES PRADO, in his capacity as Secretary of Transportation and Communications and the
PHILIPPINE PORTS AUTHORITY, petitioners,
vs.
COURT OF APPEALS, UNITED HARBOR PILOTS ASSOCIATION OF THE PHILIPPINES, INC., respondents
G.R. No. 107720 January 22, 1997
HON. JESUS B. GARCIA, JR., in his capacity as Secretary of Transportation and Communications and Chairman of the
PHILIPPINE PORTS AUTHORITY, COMMODORE ROGELIO A. DAYAN, in his capacity as General Manager of the
Philippine Ports Authority, and SIMEON T. SILVA, JR., in his capacity as the South Harbor Manager, Philippine Ports
Authority, petitioners,
vs.
HON. NAPOLEON R. FLOJO, in his capacity as the Presiding Judge of Branch 2, Regional Trial Court Manila, UNITED
HARBOR PILOTS ASSOCIATION OF THE PHILIPPINES and the MANILA PILOTS ASSOCIATION, respondents.
MENDOZA, J .:
Private respondent United Harbor Pilots Association of the Philippines, Inc. (UHPAP) is the umbrella organization of
various groups rendering pilotage service in different ports of the Philippines. The service consists of navigating a
vessel from a specific point, usually about two (2) miles off shore, to an assigned area at the pier and vice versa. When
a vessel arrives, a harbor pilot takes over the ship from its captain to maneuver it to a berth in the port, and when it
departs, the harbor pilot also maneuvers it up to a specific point off shore. The setup is required by the fact that each
port has peculiar topography with which a harbor pilot is presumed to be more familiar than a ship captain.
The Philippine Ports Authority (PPA) is the government agency which regulates pilotage. Pursuant to Presidential
Decree No. 857, it has the power "to supervise, control, regulate . . . such services as are necessary in the ports vested
in, or belonging to the Authority"
1
and to "control, regulate and supervise pilotage and the conduct of pilots in any Port
District."
2
It also has the power "to impose, fix, prescribe, increase or decrease such rates, charges or fees. . . for the
services rendered by the Authority or by any private organization within a Port District."
3
These cases arose out of the efforts of harbor pilots to secure enforcement of Executive Order No. 1088, which fixes the
rates of pilotage service, and the equally determined efforts of the PPA and its officials, the herein petitioners, to block
enforcement of the executive order, even as they promulgated their own orders which in the beginning fixed lower rates
of pilotage and later left the matter to self determination by parties to a pilotage contract.
I. THE FACTS
G.R. No. 103716
On February 3, 1986, shortly before the presidential elections, President Ferdinand E. Marcos, responding to the clamor
of harbor pilots for an increase in pilotage rates, issued Executive Order No. 1088, PROVIDING FOR UNIFORM AND
MODIFIED RATES FOR PILOTAGE SERVICES RENDERED TO FOREIGN AND COASTWISE VESSELS IN ALL PRIVATE
AND PUBLIC PORTS. The executive order increased substantially the rates of the existing pilotage fees previously fixed
by the PPA.
However, the PPA refused to enforce the executive order on the ground that it had been drawn hastily and without prior
consultation: that its enforcement would create disorder in the ports as the operators and owners of the maritime
vessels had expressed opposition to its implementation; and that the increase in pilotage, as mandated by it, was
exorbitant and detrimental to port operations.
4
The UHPAP then announced its intention to implement E.O. No. 1088 effective November 16, 1986. This in turn drew a
warning from the PPA that disciplinary sanctions would be applied to those who would charge rates under E.O. No.
1088. The PPA instead issued Memorandum Circular No. 43-86, fixing pilotage fees at rates lower than those provided in
E.O. No. 1088.
Consequently, the UHPAP filed on January 7, 1987 a complaint for injunction with the Regional Trial Court of Manila,
against the then Minister of Transportation and Communications, Hernando Perez, and PPA General Manager, Primitivo
S. Soils, Jr. It sought a writ of preliminary mandatory injunction for the immediate implementation of E.O. No. 1088, as
well as a temporary restraining order to stop PPA officials from imposing disciplinary sanctions against UHPAP
members charging rates in accordance with E.O. No. 1088.
The case, docketed as Civil Case No. 87-38913, was raffled to Branch 28 of the Regional Trial Court of Manila which
issued a temporary restraining order, enjoining the PPA from threatening the UHPAP, its officers and its members with
suspension and other disciplinary action for collecting pilotage fees pursuant to E.O. No. 1088.
On March 16, 1987, the Chamber of Maritime Industries of the Philippines, William Lines, Inc., Loadstar Shipping Co.,
Inc. and Delsen Transport Lines, Inc., after obtaining leave, filed a joint answer in intervention.
On February 26, 1988, while the case was pending, the PPA issued Administrative Order No. 02-88, entitled
IMPLEMENTING GUIDELINES ON OPEN PILOTAGE SERVICE. The PPA announced in its order that it was leaving to the
contracting parties, i.e., the shipping lines and the pilots, the fixing of mutually acceptable rates for pilotage services,
thus abandoning the rates fixed by it (PPA) under Memorandum Circular No. 43-86, as well as those provided in E.O. No.
1088. The administrative order provided:
Sec. 3. Terms/Conditions on Pilotage Service. The shipping line or vessels agent/representative and
the harbor pilot/firm chosen by the former shall agree between themselves, among others, on what
pilotage service shall be performed, the use of tugs and their rates, taking into consideration the
circumstances stated in Section 12 of PPA AO No. 03-85, and such other conditions designed to ensure
the safe movement of the vessel in pilotage areas/grounds.
The PPA then moved to dismiss the case, contending that the issuance of its order had rendered the case moot and
academic and that consequently E.O. No. 1088 had ceased to be effective. The UHPAP opposed the motion. Together
with the Manila Pilots Association (MPA), it filed on May 25, 1988 a petition for certiorari and prohibition in the RTC-
Manila, questioning the validity of A.O. No. 02-88. This petition was docketed as Civil Case No. 88-44726 (United Harbor
Pilots Association and Manila Pilots Association v. Hon. Rainerio Reyes, as Acting Secretary of the Department of
Transportation and Communications and Chairman of the Philippine Ports Authority (PPA) and Maximo Dumlao, Jr., as
General Manager of the Philippine Ports Authority (PPA), et al.) and raffled to Branch 2 of RTC-Manila. The factual
antecedents of this case are discussed in G.R. No. 100481 below.
Meanwhile, in Civil Case 87-38913, the court, without resolving the motion to dismiss filed by the PPA, rendered a
decision
5
holding that A.O. No. 02-88 did not render the case moot and academic and that the PPA was under obligation to
comply with E.O. No. 1088 because the order had the force of law which the PPA could not repeal.
The then Transportation Minister Hernando Perez and the PPA filed a petition for review. The petition was filed in this
Court which later referred the case to the Court of Appeals where it was docketed as CA G.R. SP. No. 18072. On the
other hand the intervenors appealed to the Court of Appeals where this case was docketed as CA G.R. No. 21590. The
two cases were then consolidated.
In a decision rendered on October 4, 1991, the Twelfth Division
6
of the Court of Appeals affirmed the decision of the trial
court, by dismissing CA G.R. No. 21590 and denying CA G.R. SP. No. 18072. Hence, this petition by the Secretary of
Transportation and Communications and the PPA. The intervenor shipping lines did not appeal.
G.R. No. 100481
Meanwhile, in a petition for certiorari filed before RTC-Manila, Branch 2 (Civil Case No. 88-44726), the UHPAP and the
MPA sought the annulment of A.O. No. 02-88. which in pertinent parts provided:
Sec. 1. Statement of Policy. It is hereby declared that the provision of pilotage in ports/harbors/areas
defined as compulsory in Section 8 of PPA Administrative Order No. 03-85, entitled, "Rules and
Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports"
shall be open to all licensed harbor pilots/pilotage firms/associations appointed/accredited by this
authority to perform pilotage service.
Sec. 2. Persons Authorized to Render Pilotage. The following individuals, persons or groups shall be
appointed/accredited by this Authority to provide pilotage service:
a. Harbor Pilots of the present Pilotage Associations of the different pilotage districts in the Philippines.
Their probationary training as required under Section 31 of PPA AO No. 03-85 shall be undertaken by any
member of said Association.
b. Members/employees of any partnership/corporation or association, including Filipino shipmasters/
captains of vessel (domestic/foreign) of Philippine Registry and individuals who meet the minimum
qualifications and comply with the requirements prescribed in Sec. 29 of PPA AO No. 03-85, aforestated,
and who are appointed by said firm or association and accredited as harbor pilots by this authority. New
Harbor Pilots who wish to be appointed/accredited by PPA under the open pilotage system either as an
individual pilot or as a member of any Harbor Pilot partnership/association shall be required to undergo a
practical examination, in addition to the written examination given by the Philippine Coast Guard, prior to
their appointment/accreditation by this Authority.
The UHPAP and MPA, as petitioners below, contended (1) that A.O. No. 02-88 was issued without the benefit of a public
hearing; (2) that E.O. No. 1088 had not been repealed by any other Executive Order or Presidential Decree and,
therefore, should be given effect; and (3) that A.O. No. 02-88 contravened P.D. No. 857.
On August 21, 1989, the Philippine Interisland Shipping Association, Conference of Interisland Shipowners and
Operators, United Petroleum Tanker Operators of the Philippines, Lighterage Association of the Philippines, and
Pilotage Integrated Services Corp., were allowed to intervene.
On September 8, 1989, a writ of preliminary injunction was issued by the court, enjoining the PPA from implementing
A.O. No. 02-88 and, on October 26, 1989, judgment was rendered in favor of the petitioners therein. The dispositive
portion of the courts decision
7
reads:
WHEREFORE, for all of the foregoing, the petition is hereby granted.
1. Respondents are hereby declared to have acted in excess of jurisdiction and with grave abuse of
discretion amounting to lack of jurisdiction in approving Resolution No. 860 and in enacting Philippine
Ports Authority Administrative Order No. 02-88, the subject of which is "Implementing Guidelines on
Open Pilotage Service";
2. Philippine Ports Authority Administrative Order No. 02-88 is declared null and void;
3. The preliminary injunction issued on September 8, 1989 is made permanent; and
4. Without costs.
SO ORDERED.
Respondents and the intervenors below filed a joint petition for certiorari in the Court of Appeals (CA G.R. SP No.
19570), assailing the decision of the trial court. But their petition was dismissed for lack of jurisdiction on the ground
that the issue raised was purely legal.
The parties separately filed petitions for review before this Court. The first one, by the PPA and its officers, was
docketed as G.R. No. 100109 (Hon. Pete Nicomedes Prado, Philippine Ports Authority and Commodore Rogelio Dayan v.
United Harbor Pilots Association of the Philippines and Manila Pilots Association), while the second one, by the
intervenors, was docketed as G.R. No. 100481 (Philippine Interisland Shipping Association of the Philippines,
Conference of Interisland Ship Owners and Operators, United Petroleum Tanker Operators Association of the
Philippines, Inc. v. The Court of Appeals. United Harbor Pilots Association of the Philippines and Manila Pilots
Association.)
The petition filed by the government in G.R. No. 100109 was dismissed for failure of petitioners to show that the Court
of Appeals committed a reversible error.
8
On the other hand, the petition of the intervenors in G.R. No. 100481 was given
due course.
G.R. No. 107720
Following the denial of its petition in G.R. No. 100109, the PPA issued on July 31, 1992, Administrative Order No. 05-92.
placing harbor pilots under the control of the PPA with respect to the scheduling and assignment of service of vessels.
The PPA cited as justification "pilotage delays . . . under the set-up where private respondents (UHPAP & MPA) assign
the pilots. Intentionally or otherwise, several vessels do not receive the pilotage service promptly, causing them
operational disruptions and additional expenses/costs."
9
Private respondents UHPAP and MPA viewed the matter differently. On October 28, 1992, they asked the RTC-Manila,
Branch 2 which heard and decided Civil Case No. 88-44726 to cite PPA officials in contempt of court. On the same day,
the trial court issued an order restraining the herein petitioners from implementing Administrative Order No. 05-92.
However, the PPA proceeded to implement its order, prompting the UHPAP and MPA to move again to cite petitioners in
contempt, even as they questioned the validity of A.O. No. 05-92. Accordingly the trial court issued another order on
November 4, 1992, reiterating its previous order of October 28, 1992 to petitioners to refrain from implementing A.O. No.
05-92 pending resolution of the petitions.
Making a special appearance, petitioners questioned the jurisdiction of the court and moved for the dismissal of the
petitions for contempt. Allegedly to prevent the disruption of pilotage services, petitioners created a special team of
reserve pilots to take over the pilotage service in the event members of UHPAP/MPA refused to render pilotage
services.
For the third time respondents moved to cite petitioners in contempt of court. Again petitioners questioned the courts
jurisdiction and manifested that they were adopting their previous motion to dismiss petitions for contempt filed
against them.
On November 17, 1992, the trial court denied the petitioners motion and set the contempt petitions for hearing on
November 19, 1992. Hence, this petition, which was docketed as G.R. No. 107720 (Hon. Jesus B. Garcia, Jr. in his
capacity as Secretary of Transportation and Communications and Chairman of the Philippine Ports Authority,
Commodore Rogelio A. Dayan, in his capacity as General Manager of the Philippine Ports Authority and Simeon T.
Silva, Jr., in his capacity as the South Harbor Manager, Philippine Ports Authority v. Hon. Napoleon Flojo, in his
capacity as the Presiding Judge of Branch 2, RTC, Manila, UHPAP and MPA).
Pending resolution of this case, the Court ordered the parties to maintain the status quo as of October 31, 1992.
II. THE ISSUES AND THEIR DISPOSITION
The issues raised are:
I. WHETHER OR NOT RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE CHALLENGED
DECISION OF RTC-MANILA, BRANCH 41, WHICH RULED THAT:
(A) CIVIL CASE NO. 87-38913 HAS NOT BECOME MOOT AND ACADEMIC
WITH THE ISSUANCE OF ADMINISTRATIVE ORDER NO. 02-88; AND
(B) HEREIN PETITIONERS ARE BOUND TO COMPLY WITH E.O. NO. 1088;
II. WHETHER OR NOT THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN DISMISSING CA
G.R. SP. NO. 19570 FOR LACK OF JURISDICTION?
III. WHETHER OR NOT RESPONDENT JUDGE NAPOLEON FLOJO COMMITTED GRAVE ABUSE OF
DISCRETION IN ASSUMING JURISDICTION OVER THE PETITIONS FOR CONTEMPT FILED BY PRIVATE
RESPONDENTS AS A RESULT OF THE ISSUANCE OF A.O. NO. 05-92?
These issues will be discussed in seriatim.
A. Whether Executive Order No. 1088 is Valid and
Petitioners are Bound to Obey it
(G.R. Nos. 103 716-17)
Executive Order No. 1088 reads:
EXECUTIVE ORDER No. 1088
PROVIDING FOR UNIFORM AND MODIFIED RATES FOR PILOTAGE SERVICES RENDERED TO FOREIGN AND
COASTWISE VESSELS IN ALL PRIVATE OR PUBLIC PHILIPPINE PORTS.
WHEREAS, the United Harbor Pilots Association of the Philippines has clamored for the rationalization of pilotage
service charges, through the imposition of uniform and adjusted rates for foreign and coastwise vessels in all
Philippine ports, whether public or private;
WHEREAS, the plea of the Association has been echoed by a great number of Members of Parliament and other
persons and groups;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by
the Constitution and by law, do hereby direct and order:
Sec. 1. The following shall be the rate of pilotage fees or charges based on tonnage for services rendered to both
foreign and coastwise vessels;
For Foreign Vessels Rate in US $ or
its Peso
Equivalent
Less than 500GT $ 30.00
500GT to 2,500GT 43.33
2,500GT to 5,000GT 71.33
5,000GT to 10,000GT 133.67
10,000GT to 15,000GT 181.67
15,000GT to 20,000GT 247.00
20,000GT to 30,000GT 300.00
30,000GT to 40,000GT 416.67
40,000GT to 60,000GT 483.33
60,000GT to 80,000GT 550.00
80,000GT to 100,000GT 616.67
100,000GT to 120,000GT 666.67
120,000GT to 130,000GT 716.67
130,000GT to 140,000GT 766.67
Over 140,000 gross tonnage $0.05 or its peso equivalent every excess tonnage. Rate for docking and
undocking anchorage, conduction and shifting other related special services is equal to 100%. Pilotage
services shall be compulsory in government and private wharves or piers,
For Coastwise Vessels: Regular
100 and under 500 gross tons P41.70
500 and under 600 gross tons 55.60
600 and under 1,000 gross tons 69.60
1,000 and under 3,000 gross tons 139.20
3,000 and under 5,000 gross tons 300.00
5,000 and over gross tons
Sec. 2. With respect to foreign vessels, payment of pilotage services shall be made in dollars or in pesos
at the prevailing exchange rate.
Sec. 3. All orders, letters of instruction, rules, regulations and other issuances inconsistent with this
Executive Order are hereby repealed or amended accordingly.
Sec. 4. This Executive Order shall take effect immediately.
Done in the City of Manila, this 3rd day of February, in the year of our Lord, nineteen hundred and eighty-
six.
(Sgd.) FERDINAND E. MARCOS
President of the Philippines
By the President:
(Sgd.) JUAN C. TUVERA
Presidential Executive Assistant
Petitioners contend that E.O. No. 1088 was merely an administrative issuance of then President Ferdinand E. Marcos
and, as such, it could be superseded by an order of the PPA. They argue that to consider E.O. No. 1088 a statute would
be to deprive the PPA of its power under its charter to fix pilotage rates.
The contention has no merit. The fixing of rates is essentially a legislative power.
10
Indeed, the great battle over the
validity of the exercise of this power by administrative agencies was fought in the 1920s on the issue of undue delegation
precisely because the power delegated was legislative. The growing complexity of modern society, the multiplication of the
subjects of governmental regulations and the increased difficulty of administering the laws made the creation
of administrative agencies and the delegation to them of legislative power necessary.
11
There is no basis for petitioners argument that rate fixing is merely an exercise of administrative power, that if
President Marcos had power to revise the rates previously fixed by the PPA through the issuance of E.O. No. 1088, the
PPA could in turn revise those fixed by the President, as the PPA actually did in A.O. No. 43-86, which fixed lower rates
of pilotage fees, and even entirely left the fees to be paid for pilotage to the agreement of the parties to a contract. The
orders previously issued by the PPA were in the nature of subordinate legislation, promulgated by it in the exercise of
delegated power. As such these could only be amended or revised by law, as the President did by E.O. No. 1088.
It is not an answer to say that E.O. No. 1088 should not be considered a statute because that would imply the
withdrawal of power from the PPA. What determines whether an act is a law or an administrative issuance is not its
form but its nature. Here, as we have already said, the power to fix the rates of charges for services, including pilotage
service, has always been regarded as legislative in character.
Nor is there any doubt of the power of the then President to fix rates. On February 3, 1986, when he issued E.O. No.
1088, President Marcos was authorized under Amendment No. 6 of the 1973 Constitution to exercise legislative power,
just as he was under the original 1973 Constitution, when he issued P.D. No. 857 which created the PPA, endowing it
with the power to regulate pilotage service in Philippine ports. Although the power to fix rates for pilotage had been
delegated to the PPA, it became necessary to rationalize the rates of charges fixed by it through the imposition of
uniform rates. That is what the President did in promulgating E.O. No. 1088. As the President could delegate the
ratemaking power to the PPA, so could he exercise it in specific instances without thereby withdrawing the power
vested by P.D. No. 857, 20(a) in the PPA "to impose, fix, prescribe, increase or decrease such rates, charges or fees . . .
for the services rendered by the Authority or by any private organization within a Port District."
It is worthy to note that E.O. No. 1088 provides for adjusted pilotage service rates without withdrawing the power of the
PPA to impose, prescribe, increase or decrease rates, charges or fees. The reason is because E.O. No. 1088 is not
meant simply to fix new pilotage rates. Its legislative purpose is the "rationalization of pilotage service charges, through
the imposition of uniform and adjusted rates for foreign and coastwise vessels in all Philippine ports."
The case presented is similar to the fixing of wages under the Wage Rationalization Act (R.A. No. 6727) whereby
minimum wages are determined by Congress and provided by law, subject to revision by Wage Boards should later
conditions warrant their revision. It cannot be denied that Congress may intervene anytime despite the existence of
administrative agencies entrusted with wage-fixing powers, by virtue of the formers plenary power of legislation. When
Congress does so, the result is not the withdrawal of the powers delegated to the Wage Boards but cooperative
lawmaking in an area where initiative and expertise are required. The Court of Appeals is correct in holding that
The power of the PPA to fix pilotage rates and its authority to regulate pilotage still remain
notwithstanding the fact that a schedule for pilotage fees has already been prescribed by the questioned
executive order. PPA is at liberty to fix new rates of pilotage subject only to the limitation that such new
rates should not go below the rates fixed under E.O. 1088. The rationale behind the limitation is no
different from what has been previously stated. Being a mere administrative agency, PPA cannot validly
issue orders or regulations that would have the effect of rendering nugatory the provisions of the
legislative issuance such as those of the executive order in question.(emphasis supplied)
Petitioner refused to implement E.O. No. 1088 on the ground that it was issued without notice to the PPA and that it was
nothing but a "political gimmick" resorted to by then President Marcos. This perception obviously stemmed from the
fact that E.O. No. 1088 was issued shortly before the presidential elections in 1986.
But lack of notice to the PPA is not proof that the necessary factual basis for the order was wanting. To the contrary,
the presumption is that the President had before him pertinent data on which he based the rates prescribed in his order.
Nor is the fact that the order might have been issued to curry favor with the voters a reason for the PPA to refuse to
enforce the order in question. It is not unusual for lawmakers to have in mind partisan political consideration in
sponsoring legislation. Yet that is not a ground for invalidating a statute.
Moreover, an inquiry into legislative motivation is not proper since the only relevant question is whether in issuing it the
President violated constitutional and statutory restrictions on his power. The PPA did not have any objection to the
order based on constitutional ground. In fact the nearest to a challenge on constitutional grounds was that mounted not
by the PPA but by the intervenors below which claimed that the rates fixed in E.O. No. 1088 were exorbitant and
unreasonable. However, both the trial court and the Court of Appeals overruled the objections and the intervenors
apparently accepted the ruling because they did not appeal further to this Court.
There is therefore, no legal basis for PPAs intransigence, after failing to get the new administration of President Aquino
to revoke the order by issuing its own order in the form of A.O. No. 02-88. It is noteworthy that if President Marcos had
legislative power under Amendment No. 6 of the 1973 Constitution
12
so did President Aquino under the Provisional
(Freedom) Constitution
13
who could, had she thought E.O. No. 1088 to be a mere "political gimmick," have just as easily
revoked her predecessors order. It is tempting to ask if the administrative agency would have shown the same act of defiance
of the Presidents order had there been no change of administration. What this Court said in La Perla Cigar and Cigarette
Factory v.Capapas,
14
mutatis mutandis may be applied to the cases at bar:
Was it within the powers of the then Collector Ang-angco to refuse to collect the duties that must be
paid? That is the crucial point of inquiry. We hold that it was not.
Precisely, he had to give the above legal provisions, quite explicit in character, force and effect. His
obligation was to collect the revenue for the government in accordance with existing legal provisions,
executive agreements and executive orders certainly not excluded. He would not be living up to his
official designation if he were permitted to act otherwise. He was not named Collector of Customs for
nothing. . . . .
Certainly, if the President himself were called upon to execute the laws faithfully, a Collector of Customs,
himself a subordinate executive official, cannot be considered as exempt in any wise from such an
obligation of fealty. Similarly, if the President cannot suspend the operation of any law, it would be
presumptuous in the extreme for one in the position of then Collector Ang-angco to consider himself as
possessed of such a prerogative. . . .
We conclude that E.O. No. 1088 is a valid statute and that the PPA is duty bound to comply with its provisions. The PPA
may increase the rates but it may not decrease them below those mandated by E.O. No. 1088. Finally, the PPA cannot
refuse to implement E.O. No. 1088 or alter it as it did in promulgating Memorandum Circular No. 43-86. Much less could
the PPA abrogate the rates fixed and leave the fixing of rates for pilotage service to the contracting parties as it did
through A. O. No. 02-88, 3. Theretofore the policy was one of governmental regulation of the pilotage business. By
leaving the matter to the determination of the parties, the PPA jettisoned this policy and changed it to laissez-faire,
something which only the legislature, or whoever is vested with lawmaking authority, could do.
B. Whether the Court of Appeals had J urisdiction over the
Appeal of Intervenors from the Decision of the
Trial Court Invalidating Administrative
Order No. 02-88 of the PPA
(G.R. No. 100481)
The Court of Appeals dismissed the joint appeal of the government and the intervenors from the trial courts decision in
Civil Case No. 88-44726 on the ground that the issues raised were purely legal questions.
15
The appellate court stated:
After a painstaking review of the records We resolved to dismiss the petition for lack of jurisdiction.
From the facts, it is clear that the main issue proffered by the appellant is whether or not the respondent
Philippine Ports Authority could validly issue rules and regulations adopting the "open pilotage policy"
pursuant to its charter (P.D. 857).
xxx xxx xxx
It must be noted that while the court a quo had clearly recognized the intricate legal issue involved, it
nevertheless decided it on the merits which apparently resolved only the procedural aspect that justified
it in declaring the questioned order as null and void. While We recognize the basic requirements of due
process, the same cannot take precedence in the case at bar in lieu of the fact that the resolution of the
present case is purely a legal question.
Moreover, it appears that appellants in the court below had filed a manifestation and motion waiving their
presentation of evidence. Instead, they opted to submit a comprehensive memorandum of the case on
the ground that the pivotal issue raised in the petition below is purely legal in character. (p. 231, Records)
At this juncture, We are at a loss why appellants had elevated the present action before Us where at the
outset they already noted that the issue is purely legal.
If in the case of Murillo v. Consul (UDK-9748, Resolution en banc, March 1, 1990) the Supreme Court laid
down the rule that "if an appeal by notice of appeal is taken from the Regional Trial Court to the Court of
Appeals, and in the latter Court, the appellant raised naught but issues of law, the appeal should be
dismissed for lack of jurisdiction (page 5, Resolution in Murillo)," then with more reason where as in the
case at bar public-appellants thru the Office of the Solicitor General in their memorandum manifested
that the controversy has reference to the pure legal question of the validity of the questioned
administrative order. Consequently, We have no other recourse but to dismiss the petition on the
strength of these pronouncements.
As already stated, from this decision, both the government and the intervenors separately brought petitions for review
to this Court. In G.R. No. 100109, the governments petition was dismissed for lack of showing that the appellate court
committed reversible error. The dismissal of the governments petition goes far to sustain the dismissal of the
intervenors petition in G.R. No. 100481 for the review of the same decision of the Court of Appeals. After all, the
intervenors petition is based on substantially the same grounds as those stated in the governments petition. It is now
settled that the dismissal of a petition for review on certiorari is an adjudication on the merits of a controversy.
16
Such
dismissal can only mean that the Supreme Court agrees with the findings and conclusions of the Court of Appeals or that the
decision sought to be reviewed is correct.
17
It is significant to note that the Secretary of Transportation and Communications and the PPA, petitioners in G.R. No.
100109, have conceded the finality of the dismissal of their appeal.
18
Thus, the administrative policy, the validity of which
herein petitioners seek to justify by their appeal, has already been abandoned by the very administrative agency which
adopted it, with the result that the question of validity of A.O. No. 02-88 is now moot and academic.
C. Whether the Trial Court has J urisdiction to Hear and
Decide the Contempt Charges
against Petitioners
(G.R. No. 107720)
As already noted, following the dismissal of the governments appeal in G.R. No. 100109, the PPA abandoned A.O. No.
02-88 which provided for "Open Pilotage System." But it subsequently promulgated Administrative Order No. 05-92,
under which the PPA assumed the power of scheduling and assigning pilots to service vessels, allegedly regardless of
whether the pilots assigned are or are not members of the UHPAP and the MPA which theretofore had been the
exclusive agencies rendering pilotage service in Philippine ports. The UHPAP and the MPA saw the adoption of this
system as a return to the "Open Pilotage System" and, therefore, a violation of the trial courts decision invalidating the
"Open Pilotage System." They considered this to be a contempt of the trial court.
Petitioners moved to dismiss the motions for contempt against them. They contend that even if the motions were filed
as incidents of Civil Case No. 88-44726, the RTC-Manila, Branch 2 did not have jurisdiction to hear them because the
main case was no longer before the court and the fact was that the contempt citation was not an incident of the case,
not even of its execution, but a new matter raising a new cause of action which must be litigated in a separate action,
even as petitioners denied they had committed any contumacious act by the issuance of A.O. No. 05-92.
Private respondents maintained that their petitions were mere incidents of Civil Case No. 88-44726 and that the trial
court has jurisdiction because in fact this Court had not yet remanded the case to the court a quo for execution of its
decision. Private respondents complain that petitioners are trying to circumvent the final and executory decision of the
court in Civil Case No. 88-44726, through the issuance of A.O. No. 05-92.
As already noted, however, the decision of the trial court in Civil Case No. 88-44726 enjoined petitioners from
implementing the socalled "Open Pilotage System" embodied in A.O. No. 02-88. If, as alleged, A.O. No. 05-92 is in
substance a reenactment of A.O. No. 02-88, then there is basis for private respondents invocation of the trial courts
jurisdiction to punish for contempt.
Still it is argued that the trial court lost jurisdiction over Civil Case No. 887426, upon the perfection of their appeal from
its decision. That is indeed true. "The appeal transfers the proceedings to the appellate court, and this last court
becomes thereby charged with the authority to deal with contempts committed after perfection of the appeal."
19
The trial
court would have jurisdiction only in the event of an attempt to block execution of its decision and that would be after the
remand of the case to the trial court.
20
Until then the trial court would have no jurisdiction to deal with alleged contemptuous
acts.
The fly in the ointment, however, is that by accepting the dismissal of their petition for review in G.R. No. 100109,
petitioners rendered execution of the decision of the trial court superfluous. Any attempt by them, therefore, to disobey
the courts final injunction as embodied in its decision would be properly subject to punishment for contempt.
Petitioners contention that private respondents complaint must be the subject of a separate action would nullify
contempt proceedings as means of securing obedience to the lawful processes of a court. Petitioners theory would
reward ingenuity and cunning in devising orders which substantially are the same as the order previously prohibited by
the court.
We hold that the trial court has jurisdiction to hear the motions for contempt filed by private respondent, subject to any
valid defense which petitioners may interpose.
III. JUDGMENT
WHEREFORE, the several petitions in these cases are DISMISSED.
SO ORDERED.
Narvasa, C.J ., Padilla, Davide, J r., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, J r.,
Panganiban and Torres, J r., J J ., concur.
Regalado, J ., took no part.
Footnotes
1 P.D. No. 857, 6(a) (ii).
2 Id., 6(a) (viii).
3 Id., 20(a).
4 Petition in G.R. No. 103716, p. 4; Rollo, p. 13.
5 Per Judge Domingo D. Panis.
6 Per Justice Cancio C. Garcia and concurred in by Justices Manuel Herrera (Chairman) and Alfredo
Benipayo
7 Per Judge Napoleon R. Flojo.
8 Res., March 25, 1992.
9 Petition in G.R. No. 107720, p. 10; Rollo, p. 11.
10 See e.g., Ynchausti Steamship Co. v. Public Utility Commissioner, 42 Phil. 621, 624 (1992) ("the fixing
of rates is a legislative and governmental power over which the government has complete control,");
Employers Confederation of the Philippines v. National Wages and Productivity Commission, 201 SCRA
759, 765 (1991) ("wage-fixing, like rate-making, constitutes an act of Congress.")
11 As Justice Irene R. Cortes points out in her book, PHILIPPINE ADMINISTRATIVE LAW 117 (1963):
"[T]hat the legislature may directly provide for these rates, wages, or prices. But while the legislature may
deal directly with these subjects it has been found more advantageous to place the performance of these
functions in some administrative agency. The reason is that the legislature has not the time, the
knowledge or the means necessary to handle adequately these matters. The need for dispatch, for
flexibility and for technical know-how is better met by entrusting the rate-fixing to an agency other than
the legislature itself."
12 Legaspi v. Minister of Finance, 115 SCRA 418 (1982); Marcos v. Manglapus, 178 SCRA 760 (1989).
13 Maceda v. Macaraig, Jr., 223 SCRA 217 (1993).
14 28 SCRA 1085, 1091-1092 (1969) (emphasis supplied).
15 Per Justice Manuel C. Herrera (Chairman) and concurred in by Justices Alfredo L. Benipayo and
Fortunato A. Vailoces.
16 Commercial Union Assurance Limited v. Lepanto Consolidated Mining Company, 86 SCRA 79 (1978);
Tayag v. Yuseco, 105 Phil. 484 (1959).
17 Smith Bell and Company (Phils.), Inc. v. Court of Appeals, 197 SCRA 201 (1991).
18 See discussion in G.R. 107720, infra.
19 People v. Alarcon, 69 Phil 265, 272 (1939). See People v. Godoy, 243 SCRA 64 (1995).
20 Philippine National Construction Corp. v. Court of Appeals, 228 SCRA 565 (1993); Shoji v. Harvey, 43
Phil 333 (1922).
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 160261 November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND
MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SENATE,
REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER,
SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM
B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003
ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY
AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON,
IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR.,
FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN,
EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ,
ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA
CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS
LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA,
DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO
RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO
TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA
III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN,
MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS
ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA,
JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO
IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR.,
JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER
BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS
LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H.
ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS SECRETARY
GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER,
SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM
B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO
MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH,
EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR.,
RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A.
AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE,
SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA,
EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO
LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL
ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, JR., THE SENATE,
REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,
vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT
FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents.
x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR OF THE PHILIPPINES,
MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE
ENGINEERING PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF THE HOUSE LED BY
HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER,
SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM
B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH
THE SENATE PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-
RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS,
ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES
AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE PHILIPPINES, SENATE
PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY
THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO
SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G.
DAVIDE, JR. respondents.
x---------------------------------------------------------x
G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents.
x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES OF
THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF
REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
VENECIA, respondents.
x---------------------------------------------------------x
G.R. No. 160392 November 10, 2003
VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE
PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160397 November 10, 2003
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY.
DIOSCORO U. VALLEJOS, JR., petitioner.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE
OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP,
CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG
EOF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY.
MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC],
REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE
VELASQUEZ, FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN,
CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS
ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU
CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE
SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE PRESIDENT, respondents.
CARPIO MORALES, J .:
There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly irreconcilable it may appear
to be, over the determination by the independent branches of government of the nature, scope and extent of their respective
constitutional powers where the Constitution itself provides for the means and bases for its resolution.
Our nations history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics of the relationship among
these co-equal branches. This Court is confronted with one such today involving the legislature and the judiciary which has
drawn legal luminaries to chart antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that the present controversy subject of the instant petitions
whether the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of
Representatives falls within the one year bar provided in the Constitution, and whether the resolution thereof is a political
question has resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of
conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this controversy
spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to extra-constitutional methods of
resolving it is neither necessary nor legally permissible. Both its resolution and protection of the public interest lie in adherence
to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate
doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for
absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper
the official acts of each of these three branches must be given effect without destroying their indispensable co-equality.
Taken together, these two fundamental doctrines of republican government, intended as they are to insure that governmental
power is wielded only for the good of the people, mandate a relationship of interdependence and coordination among these
branches where the delicate functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest
lives.
SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other
public officers and employees may be removed from office as provided by law, but not by impeachment.
SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing,
and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral,
together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution
with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be
recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the
House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the
Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all
the Members of the Senate.
(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any
office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to
prosecution, trial, and punishment according to law.
(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.
(Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of Representatives
adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment Rules) on November 28,
2001, superseding the previous House Impeachment Rules
1
approved by the 11th Congress. The relevant distinctions between
these two Congresses House Impeachment Rules are shown in the following tabulation:
11TH CONGRESS RULES 12TH CONGRESS NEW RULES
RULE II
INITIATING IMPEACHMENT
Section 2. Mode of Initiating
Impeachment. Impeachment shall
be initiated only by a verified
complaint for impeachment filed by
any Member of the House of
Representatives or by any citizen
RULE V
BAR AGAINST INITIATION OF
IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 16. Impeachment
Proceedings Deemed Initiated.
In cases where a Member of the
House files a verified complaint of
upon a resolution of endorsement by
any Member thereof or by a verified
complaint or resolution of
impeachment filed by at least one-
third (1/3) of all the Members of the
House.
impeachment or a citizen files a
verified complaint that is endorsed
by a Member of the House through
a resolution of endorsement
against an impeachable officer,
impeachment proceedings against
such official are deemed initiated
on the day the Committee on
Justice finds that the verified
complaint and/or resolution against
such official, as the case may be,
is sufficient in substance, or on the
date the House votes to overturn
or affirm the finding of the said
Committee that the verified
complaint and/or resolution, as the
case may be, is not sufficient in
substance.
In cases where a verified
complaint or a resolution of
impeachment is filed or endorsed,
as the case may be, by at least
one-third (1/3) of the Members of
the House, impeachment
proceedings are deemed
initiated at the time of the filing
of such verified complaint or
resolution of impeachment with
the Secretary General.
RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. No
impeachment proceedings shall be
initiated against the same official
more than once within the period of
one (1) year.
Section 17. Bar Against
Initiation Of Impeachment
Proceedings. Within a period of
one (1) year from the date
impeachment proceedings are
deemed initiated as provided in
Section 16 hereof, no
impeachment proceedings, as
such, can be initiated against the
same official. (Italics in the original;
emphasis and underscoring
supplied)
On July 22, 2002, the House of Representatives adopted a Resolution,
2
sponsored by Representative Felix William D.
Fuentebella, which directed the Committee on Justice "to conduct an investigation, in aid of legislation, on the manner of
disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)."
3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint
4
(first impeachment complaint) against
Chief Justice Hilario G. Davide Jr. and seven Associate Justices
5
of this Court for "culpable violation of the Constitution, betrayal
of the public trust and other high crimes."
6
The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B.
Zamora and Didagen Piang Dilangalen,
7
and was referred to the House Committee on Justice on August 5, 2003
8
in accordance
with Section 3(2) of Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by
any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was "sufficient in form,"
9
but
voted to dismiss the same on October 22, 2003 for being insufficient in substance.
10
To date, the Committee Report to this effect
has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the
House Committee on Justice voted to dismiss it, the second impeachment complaint
11
was filed with the Secretary General of the
House
12
by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District,
Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by
above-mentioned House Resolution. This second impeachment complaint was accompanied by a "Resolution of
Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House of Representatives.
13
Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions contend that the filing of the
second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that
"[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of
the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised in his petition
for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he "himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress,"
14
posits that his
right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and
arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of
Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared
unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of Representatives et. al. to comply with
Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint and/or strike it off the
records of the House of Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this Court
permanently enjoin respondent House of Representatives from proceeding with the second impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging that the issues of the case are
of transcendental importance, pray, in their petition for Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting
respondent House of Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate; and for
the issuance of a writ "perpetually" prohibiting respondents Senate and Senate President Franklin Drilon from accepting any
Articles of Impeachment against the Chief Justice or, in the event that the Senate has accepted the same, from proceeding with
the impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers, lawyers and members of
the Integrated Bar of the Philippines, alleging that their petition for Prohibition involves public interest as it involves the use of
public funds necessary to conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a writ of
prohibition enjoining Congress from conducting further proceedings on said second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus standi to bring
petitions of this nature in the cases of Chavez v. PCGG
15
and Chavez v. PEA-Amari Coastal Bay Development
Corporation,
16
prays in his petition for Injunction that the second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal profession, pray in their
petition for Prohibition for an order prohibiting respondent House of Representatives from drafting, adopting, approving and
transmitting to the Senate the second impeachment complaint, and respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M. Gonzalez, alleging that, as
members of the House of Representatives, they have a legal interest in ensuring that only constitutional impeachment
proceedings are initiated, pray in their petition for Certiorari/Prohibition that the second impeachment complaint and any act
proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be protected against all forms of
senseless spending of taxpayers money and that they have an obligation to protect the Supreme Court, the Chief Justice, and
the integrity of the Judiciary, allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray that
(1) the House Resolution endorsing the second impeachment complaint as well as all issuances emanating therefrom be
declared null and void; and (2) this Court enjoin the Senate and the Senate President from taking cognizance of, hearing, trying
and deciding the second impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors and
agents to desist from conducting any proceedings or to act on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and its co-petitioner
Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their petition, which does not state what
its nature is, that the filing of the second impeachment complaint involves paramount public interest and pray that Sections 16
and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be declared null and
void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine Bar Association and of
the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the
issuance of a Temporary Restraining Order and Permanent Injunction to enjoin the House of Representatives from proceeding
with the second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the Code of Professional
Responsibility to uphold the Constitution, prays in its petition for Certiorari and Prohibition that Sections 16 and 17 of Rule V and
Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and Prohibition that the House
Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for Prohibition and Injunction
which they claim is a class suit filed in behalf of all citizens, citing Oposa v. Factoran
17
which was filed in behalf of succeeding
generations of Filipinos, pray for the issuance of a writ prohibiting respondents House of Representatives and the Senate from
conducting further proceedings on the second impeachment complaint and that this Court declare as unconstitutional the second
impeachment complaint and the acts of respondent House of Representatives in interfering with the fiscal matters of the
Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his petition for Prohibition
are of national and transcendental significance and that as an official of the Philippine Judicial Academy, he has a direct and
substantial interest in the unhampered operation of the Supreme Court and its officials in discharging their duties in accordance
with the Constitution, prays for the issuance of a writ prohibiting the House of Representatives from transmitting the Articles of
Impeachment to the Senate and the Senate from receiving the same or giving the impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition that respondents
Fuentebella and Teodoro at the time they filed the second impeachment complaint, were "absolutely without any legal power to
do so, as they acted without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief
Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that as professors of law they have
an abiding interest in the subject matter of their petition for Certiorari and Prohibition as it pertains to a constitutional issue "which
they are trying to inculcate in the minds of their students," pray that the House of Representatives be enjoined from endorsing
and the Senate from trying the Articles of Impeachment and that the second impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that the second
impeachment complaint is founded on the issue of whether or not the Judicial Development Fund (JDF) was spent in accordance
with law and that the House of Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in
his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that the second impeachment
complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of the second impeachment
complaint involve matters of transcendental importance, prays in its petition for Certiorari/Prohibition that (1) the second
impeachment complaint and all proceedings arising therefrom be declared null and void; (2) respondent House of
Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be
prohibited from accepting the Articles of Impeachment and from conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their petition for
Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement and impeachment by
the respondent House of Representatives be declared null and void and (2) respondents Senate and Senate President Franklin
Drilon be prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event that they have
accepted the same, that they be prohibited from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen which were filed before
this Court,
18
prayed for the issuance of a Temporary Restraining Order and/or preliminary injunction to prevent the House of
Representatives from transmitting the Articles of Impeachment arising from the second impeachment complaint to the Senate.
Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28, 2001 House
Impeachment Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October 28, 2003, sought similar
relief. In addition, petition bearing docket number G.R. No. 160292 alleged that House Resolution No. 260 (calling for a
legislative inquiry into the administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of separation of
powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of Representatives, a motion was put forth that the second
impeachment complaint be formally transmitted to the Senate, but it was not carried because the House of Representatives
adjourned for lack of quorum,
19
and as reflected above, to date, the Articles of Impeachment have yet to be forwarded to the
Senate.
Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary injunction which were filed on
or before October 28, 2003, Justices Puno and Vitug offered to recuse themselves, but the Court rejected their offer. Justice
Panganiban inhibited himself, but the Court directed him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003, resolved to (a) consolidate
the petitions; (b) require respondent House of Representatives and the Senate, as well as the Solicitor General, to comment on
the petitions not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00
a.m.; and (d) appointed distinguished legal experts as amici curiae.
20
In addition, this Court called on petitioners and respondents
to maintain the status quo, enjoining all the parties and others acting for and in their behalf to refrain from committing acts that
would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De Venecia, Jr. and/or its co-
respondents, by way of special appearance, submitted a Manifestation asserting that this Court has no jurisdiction to hear, much
less prohibit or enjoin the House of Representatives, which is an independent and co-equal branch of government under the
Constitution, from the performance of its constitutionally mandated duty to initiate impeachment cases. On even date, Senator
Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante Cautela)
21
and Comment, praying that "the
consolidated petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment proceedings
and that the sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide impeachment cases,
including the one where the Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of
the Constitution."
22
Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them with the earlier
consolidated petitions; (b) require respondents to file their comment not later than 4:30 p.m. of November 3, 2003; and (c) include
them for oral arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a Manifestation stating
that insofar as it is concerned, the petitions are plainly premature and have no basis in law or in fact, adding that as of the time of
the filing of the petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute itself as an
impeachment court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the principal issues
raised by the petitions pertain exclusively to the proceedings in the House of Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277,
160292, and 160295, questioning the status quo Resolution issued by this Court on October 28, 2003 on the ground that it would
unnecessarily put Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as the
matter in question is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for Leave of
Court to Intervene and to Admit the Herein Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a Motion for
Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the Philippines, Inc. also filed a
"Petition-in-Intervention with Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator Pimentels Comment and Attorneys Macalintal and Quadras Petition
in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners, intervenors Senator
Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the principal issues outlined in an Advisory issued
by this Court on November 3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what
time; and whether it should be exercised by this Court at this time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) Houses "exclusive" power to initiate all cases of impeachment;
e) Senates "sole" power to try and decide all cases of impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising from the instant petitions as well as the myriad
arguments and opinions presented for and against the grant of the reliefs prayed for, this Court has sifted and determined them
to be as follows: (1) the threshold and novel issue of whether or not the power of judicial review extends to those arising from
impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise of the power of judicial review have
been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be discussed in seriatim.
J udicial Review
As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine the validity of the second
impeachment complaint.
This Courts power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present
1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
(Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the definitive 1936 case
of Angara v. Electoral Commission
23
after the effectivity of the 1935 Constitution whose provisions, unlike the present
Constitution, did not contain the present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice
Laurel discoursed:
x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten
or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within
the power of our people, acting through their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government
along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where
no express constitutional grant is found in their constitution, the possession of this moderating power of the
courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a
period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of
such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way.
And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that instrument secures
and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is
the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases
and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does
not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of
the people as expressed through their representatives in the executive and legislative departments of the
government.
24
(Italics in the original; emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of powers" of the different branches
of government and "to direct the course of government along constitutional channels" is inherent in all courts
25
as a necessary
consequence of the judicial power itself, which is "the power of the court to settle actual controversies involving rights which are
legally demandable and enforceable."
26
Thus, even in the United States where the power of judicial review is not explicitly conferred upon the courts by its Constitution,
such power has "been set at rest by popular acquiescence for a period of more than one and a half centuries." To be sure, it was
in the 1803 leading case of Marbury v. Madison
27
that the power of judicial review was first articulated by Chief Justice Marshall,
to wit:
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution
itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance
of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle,
supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and
that courts, as well as other departments, are bound by that instrument.
28
(Italics in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the power of judicial review
was exercised by our courts to invalidate constitutionally infirm acts.
29
And as pointed out by noted political law professor and
former Supreme Court Justice Vicente V. Mendoza,
30
the executive and legislative branches of our government in fact effectively
acknowledged this power of judicial review in Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter
shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the
laws or the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,
31
judicial review is indeed an integral component of the delicate system of
checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican
form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our system of government. It obtains not through express
provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of the government. x x x And the judiciary in
turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its
power to determine the law, and hence to declare executive and legislative acts void if violative of the
Constitution.
32
(Emphasis and underscoring supplied)
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial review is essential for the
maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of
government through the definition and maintenance of the boundaries of authority and control between them."
33
To him, "[j]udicial
review is the chief, indeed the only, medium of participation or instrument of intervention of the judiciary in that balancing
operation."
34
To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any branch or instrumentalities of
government," the afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time into its history, into block
letter law the so-called "expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored in the
following excerpt from the sponsorship speech of its proponent, former Chief Justice Constitutional Commissioner Roberto
Concepcion:
x x x
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of
fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred
considerably by the circumstance that in a number of cases against the government, which then had no legal
defense at all, the solicitor general set up the defense of political questions and got away with it. As a
consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order
the release of political detainees, and other matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no
authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the
questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law regime. x x x
x x x
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as
well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a
branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so
capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to
settle matters of this nature, by claiming that such matters constitute a political question.
35
(Italics in the original;
emphasis and underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to the Constitution itself
which employs the well-settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except
where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration,
36
this Court, speaking
through Chief Justice Enrique Fernando, declared:
We look to the language of the document itself in our search for its meaning. We do not of course stop there, but
that is where we begin. It is to be assumed that the words in which constitutional provisions are couched
express the objective sought to be attained. They are to be given their ordinary meaning except where technical
terms are employed in which case the significance thus attached to them prevails. As the Constitution is not
primarily a lawyers document, it being essential for the rule of law to obtain that it should ever be present in the peoples
consciousness, its language as much as possible should be understood in the sense they have in common use. What it
says according to the text of the provision to be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are the cases
where the need for construction is reduced to a minimum.
37
(Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in accordance with
the intent of its framers. And so did this Court apply this principle in Civil Liberties Union v. Executive Secretary
38
in this wise:
A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it
has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its
adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of
the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to
ascertain the reason which induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to
that reason and calculated to effect that purpose.
39
(Emphasis and underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue
40
where, speaking through Madame Justice Amuerfina A. Melencio-
Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be given
effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose
of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in
ratifying the Constitution were guided mainly by the explanation offered by the framers.
41
(Emphasis and
underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in Chiongbian v. De Leon,
42
this
Court, through Chief Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution
merely for the benefit of one person without considering that it could also affect others. When they adopted
subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance
and its terms, not by itself alone, but in conjunction with all other provisions of that great document.
43
(Emphasis
and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,
44
this Court affirmed that:
It is a well-established rule in constitutional construction that no one provision of the Constitution is to be
separated from all the others, to be considered alone, but that all the provisions bearing upon a particular
subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the
instrument. Sections bearing on a particular subject should be considered and interpreted together as to
effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render
every word operative, rather than one which may make the words idle and nugatory.
45
(Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the same case of Civil
Liberties Union v. Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other
guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear.
Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating
the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the
mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer
to construe the constitution from what appears upon its face." The proper interpretation therefore depends more
on how it was understood by the people adopting it than in the framerss understanding thereof.
46
(Emphasis and
underscoring supplied)
It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the power of judicial
review that respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel argument that the
Constitution has excluded impeachment proceedings from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a political action which cannot
assume a judicial character. Hence, any question, issue or incident arising at any stage of the impeachment proceeding is
beyond the reach of judicial review.
47
For his part, intervenor Senator Pimentel contends that the Senates "sole power to try" impeachment cases
48
(1) entirely
excludes the application of judicial review over it; and (2) necessarily includes the Senates power to determine constitutional
questions relative to impeachment proceedings.
49
In furthering their arguments on the proposition that impeachment proceedings are outside the scope of judicial review,
respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American authorities, principally the
majority opinion in the case of Nixon v. United States.
50
Thus, they contend that the exercise of judicial review over impeachment
proceedings is inappropriate since it runs counter to the framers decision to allocate to different fora the powers to try
impeachments and to try crimes; it disturbs the system of checks and balances, under which impeachment is the only legislative
check on the judiciary; and it would create a lack of finality and difficulty in fashioning relief.
51
Respondents likewise point to
deliberations on the US Constitution to show the intent to isolate judicial power of review in cases of impeachment.
Respondents and intervenors reliance upon American jurisprudence, the American Constitution and American
authorities cannot be credited to support the proposition that the Senates "sole power to try and decide impeachment cases," as
provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable constitutional commitment of all issues
pertaining to impeachment to the legislature, to the total exclusion of the power of judicial review to check and restrain any grave
abuse of the impeachment process. Nor can it reasonably support the interpretation that it necessarily confers upon the Senate
the inherently judicial power to determine constitutional questions incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no
longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is
concerned. As held in the case of Garcia vs. COMELEC,
52
"[i]n resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different
constitutional settings and needs."
53
Indeed, although the Philippine Constitution can trace its origins to that of the United States,
their paths of development have long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while
the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the
Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and
it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any
government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the
House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to
the House of Representatives without limitation,
54
our Constitution, though vesting in the House of Representatives the exclusive
power to initiate impeachment cases,
55
provides for several limitations to the exercise of such power as embodied in Section 3(2),
(3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar
on the impeachment of one and the same official.
Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to conflicts
between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the principle that
"whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils
of judicial willfulness and pride."
56
But did not the people also express their will when they instituted the above-mentioned safeguards in the Constitution? This
shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it
provided for certain well-defined limits, or in the language of Baker v. Carr,
57
"judicially discoverable standards" for determining
the validity of the exercise of such discretion, through the power of judicial review.
The cases of Romulo v. Yniguez
58
and Alejandrino v. Quezon,
59
cited by respondents in support of the argument that the
impeachment power is beyond the scope of judicial review, are not in point. These cases concern the denial of petitions for writs
of mandamus to compel the legislature to perform non-ministerial acts, and do not concern the exercise of the power of judicial
review.
There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus,
in Santiago v. Guingona, Jr.,
60
this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the
Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and
prerogatives. In Tanada v. Angara,
61
in seeking to nullify an act of the Philippine Senate on the ground that it contravened the
Constitution, it held that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.
In Bondoc v. Pineda,
62
this Court declared null and void a resolution of the House of Representatives withdrawing the nomination,
and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17,
Article VI of the Constitution. In Coseteng v. Mitra,
63
it held that the resolution of whether the House representation in the
Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article
VI of the Constitution is subject to judicial review. In Daza v. Singson,
64
it held that the act of the House of Representatives in
removing the petitioner from the Commission on Appointments is subject to judicial review. In Tanada v. Cuenco,
65
it held that
although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of
the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,
66
it ruled that confirmation
by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before
such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings
would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to
be allowed to defeat another."
67
Both are integral components of the calibrated system of independence and interdependence
that insures that no branch of government act beyond the powers assigned to it by the Constitution.
Essential Requisites for J udicial Review
As clearly stated in Angara v. Electoral Commission, the courts power of judicial review, like almost all powers conferred by the
Constitution, is subject to several limitations, namely: (1) an actual case or controversy calling for the exercise of judicial power;
(2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality
must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.
x x x Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of
the people as expressed through their representatives in the executive and legislative departments of the
government.
68
(Italics in the original)
Standing
Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of
standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional
questions.
69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have standing since only the
Chief Justice has sustained and will sustain direct personal injury. Amicus curiae former Justice Minister and Solicitor General
Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the past, accorded
standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount public interest
70
and transcendental
importance,
71
and that procedural matters are subordinate to the need to determine whether or not the other branches of the
government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion
given to them.
72
Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental
importance and the well-entrenched rule exception that, when the real party in interest is unable to vindicate his rights by seeking
the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this
Court, the courts will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the former is a concept of
civil procedure
73
while the latter has constitutional underpinnings.
74
In view of the arguments set forth regarding standing, it
behooves the Court to reiterate the ruling in Kilosbayan, Inc. v. Morato
75
to clarify what is meant by locus standi and to distinguish
it from real party-in-interest.
The difference between the rule on standing and real party in interest has been noted by authorities thus: "It is important
to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions
relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements
are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial
consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have
been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters
who actually sue in the public interest. Hence the question in standing is whether such parties have "alleged such a
personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."
x x x
On the other hand, the question as to "real party in interest" is whether he is "the party who would be benefited or injured
by the judgment, or the party entitled to the avails of the suit."
76
(Citations omitted)
While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the House of
Representatives, none of the petitioners before us asserts a violation of the personal rights of the Chief Justice. On the contrary,
they invariably invoke the vindication of their own rights as taxpayers; members of Congress; citizens, individually or in a class
suit; and members of the bar and of the legal profession which were supposedly violated by the alleged unconstitutional acts of
the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have
been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He
must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger
of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It
must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled
or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.
77
In fine, when the
proceeding involves the assertion of a public right,
78
the mere fact that he is a citizen satisfies the requirement of personal
interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public
money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an
invalid or unconstitutional law.
79
Before he can invoke the power of judicial review, however, he must specifically prove that he
has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as
a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common
to all members of the public.
80
At all events, courts are vested with discretion as to whether or not a taxpayers suit should be entertained.
81
This Court opts to
grant standing to most of the petitioners, given their allegation that any impending transmittal to the Senate of the Articles of
Impeachment and the ensuing trial of the Chief Justice will necessarily involve the expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as
a legislator.
82
Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in his office.
83
While an association has legal personality to represent its members,
84
especially when it is composed of substantial taxpayers
and the outcome will affect their vital interests,
85
the mere invocation by the Integrated Bar of the Philippines or any member of
the legal profession of the duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to
clothe it with standing. Its interest is too general. It is shared by other groups and the whole citizenry. However, a reading of the
petitions shows that it has advanced constitutional issues which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents.
86
It, therefore, behooves this Court to relax the rules on standing and to resolve the issues
presented by it.
In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be sufficiently numerous to
fully protect the interests of all concerned
87
to enable the court to deal properly with all interests involved in the suit,
88
for a
judgment in a class suit, whether favorable or unfavorable to the class, is, under theres judicata principle, binding on all members
of the class whether or not they were before the court.
89
Where it clearly appears that not all interests can be sufficiently
represented as shown by the divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit
ought to fail. Since petitioners additionallyallege standing as citizens and taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental importance, while Atty. Dioscoro
U. Vallejos, in G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former
Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case;
(2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the
questions being raised.
90
Applying these determinants, this Court is satisfied that the issues raised herein are indeed of
transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able
to craft an issue of transcendental significance to the people, as when the issues raised are of paramount importance to the
public.
91
Such liberality does not, however, mean that the requirement that a party should have an interest in the matter is totally
eliminated. A party must, at the very least, still plead the existence of such interest, it not being one of which courts can take
judicial notice. In petitioner Vallejos case, he failed to allege any interest in the case. He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an intervenor to possess a legal
interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. While
intervention is not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy the
requirements of the law authorizing intervention.
92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadras case, they seek to join petitioners Candelaria, et. al. in
G.R. No. 160262. Since, save for one additional issue, they raise the same issues and the same standing, and no objection on
the part of petitioners Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court
to Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join petitioner Francisco in G.R.
No. 160261. Invoking their right as citizens to intervene, alleging that "they will suffer if this insidious scheme of the minority
members of the House of Representatives is successful," this Court found the requisites for intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310 were
of transcendental importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with
Leave to Intervene" to raise the additional issue of whether or not the second impeachment complaint against the Chief Justice is
valid and based on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World War II Veterans
Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the respective motions to intervene were
hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record and arguing a point
of view that differs with Senate President Drilons. He alleges that submitting to this Courts jurisdiction as the Senate President
does will undermine the independence of the Senate which will sit as an impeachment court once the Articles of Impeachment
are transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal interest in the matter in
litigation, he being a member of Congress against which the herein petitions are directed. For this reason, and to fully ventilate all
substantial issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to
argue.
Lastly, as to Jaime N. Sorianos motion to intervene, the same must be denied for, while he asserts an interest as a taxpayer, he
failed to meet the standing requirement for bringing taxpayers suits as set forth in Dumlao v. Comelec,
93
to wit:
x x x While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do
said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protection
against abuses of legislative power," or that there is a misapplication of such funds by respondent COMELEC, or that
public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting
public funds through the enforcement of an invalid or unconstitutional law.
94
(Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will result in illegal
disbursement of public funds or in public money being deflected to any improper purpose. Additionally, his mere interest as a
member of the Bar does not suffice to clothe him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,
95
this Court, through Chief Justice Fernando, held that for a case to be considered ripe for adjudication, "it
is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the
picture."
96
Only then may the courts pass on the validity of what was done, if and when the latter is challenged in an appropriate
legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second impeachment complaint against the Chief
Justice in accordance with the House Impeachment Rules adopted by the 12th Congress, the constitutionality of which is
questioned. The questioned acts having been carried out, i.e., the second impeachment complaint had been filed with the House
of Representatives and the 2001 Rules have already been already promulgated and enforced, the prerequisite that the alleged
unconstitutional act should be accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus curiaeformer Senate
President Jovito R. Salonga opines that there may be no urgent need for this Court to render a decision at this time, it being the
final arbiter on questions of constitutionality anyway. He thus recommends that all remedies in the House and Senate should first
be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court to take judicial notice of
on-going attempts to encourage signatories to the second impeachment complaint to withdraw their signatures and opines that
the House Impeachment Rules provide for an opportunity for members to raise constitutional questions themselves when the
Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The dean maintains that even
assuming that the Articles are transmitted to the Senate, the Chief Justice can raise the issue of their constitutional infirmity by
way of a motion to dismiss.
The deans position does not persuade. First, the withdrawal by the Representatives of their signatures would not, by itself, cure
the House Impeachment Rules of their constitutional infirmity. Neither would such a withdrawal, by itself, obliterate the
questioned second impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of
the Constitution
97
and, therefore, petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or both Houses of Congress before coming to this Court
is shown by the fact that, as previously discussed, neither the House of Representatives nor the Senate is clothed with the power
to rule with definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said
power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution. Remedy cannot be
sought from a body which is bereft of power to grant it.
J usticiability
In the leading case of Tanada v. Cuenco,
98
Chief Justice Roberto Concepcion defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of
policy. In other words, in the language of Corpus Juris Secundum, it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.
99
(Italics in the original)
Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this Court vacillated on its stance
of taking cognizance of cases which involved political questions. In some cases, this Court hid behind the cover of the political
question doctrine and refused to exercise its power of judicial review.
100
In other cases, however, despite the seeming political
nature of the therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed limits on powers
or functions conferred upon political bodies.
101
Even in the landmark 1988 case of Javellana v. Executive Secretary
102
which
raised the issue of whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political question doctrine
and took cognizance thereof. Ratification by the people of a Constitution is a political question, it being a question decided by the
people in their sovereign capacity.
The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction over certain cases during
the Marcos regime motivated Chief Justice Concepcion, when he became a Constitutional Commissioner, to clarify this Courts
power of judicial review and its application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the weakest
among the three major branches of the service. Since the legislature holds the purse and the executive the sword, the judiciary
has nothing with which to enforce its decisions or commands except the power of reason and appeal to conscience which, after
all, reflects the will of God, and is the most powerful of all other powers without exception. x x x And so, with the bodys
indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it
has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably
by the circumstance that in a number of cases against the government, which then had no legal defense at all,
the solicitor general set up the defense of political questions and got away with it. As a consequence, certain
principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release
of political detainees, and other matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have
no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the
questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law regime. I am sure the members of the Bar are familiar
with this situation. But for the benefit of the Members of the Commission who are not lawyers, allow me to explain. I will
start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am not
mistaken. Martial law was announced on September 22, although the proclamation was dated September 21. The
obvious reason for the delay in its publication was that the administration had apprehended and detained prominent
newsmen on September 21. So that when martial law was announced on September 22, the media hardly published
anything about it. In fact, the media could not publish any story not only because our main writers were already
incarcerated, but also because those who succeeded them in their jobs were under mortal threat of being the object of
wrath of the ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had
not finished the Constitution; it had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the
proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens of them, were picked up.
One of them was our very own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken
over by representatives of Malacaang. In 17 days, they finished what the delegates to the 1971 Constitutional
Convention had been unable to accomplish for about 14 months. The draft of the 1973 Constitution was presented to the
President around December 1, 1972, whereupon the President issued a decree calling a plebiscite which suspended the
operation of some provisions in the martial law decree which prohibited discussions, much less public discussions of
certain matters of public concern. The purpose was presumably to allow a free discussion on the draft of the Constitution
on which a plebiscite was to be held sometime in January 1973. If I may use a word famous by our colleague,
Commissioner Ople, during the interregnum, however, the draft of the Constitution was analyzed and criticized with such
a telling effect that Malacaang felt the danger of its approval. So, the President suspended indefinitely the holding of the
plebiscite and announced that he would consult the people in a referendum to be held from January 10 to January 15.
But the questions to be submitted in the referendum were not announced until the eve of its scheduled beginning, under
the supposed supervision not of the Commission on Elections, but of what was then designated as "citizens assemblies
or barangays." Thus the barangays came into existence. The questions to be propounded were released with proposed
answers thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given in the referendum
should be regarded as the votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme Court praying
that the holding of the referendum be suspended. When the motion was being heard before the Supreme Court, the
Minister of Justice delivered to the Court a proclamation of the President declaring that the new Constitution was already
in force because the overwhelming majority of the votes cast in the referendum favored the Constitution. Immediately
after the departure of the Minister of Justice, I proceeded to the session room where the case was being heard. I then
informed the Court and the parties the presidential proclamation declaring that the 1973 Constitution had been ratified by
the people and is now in force.
A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by the
government was that the issue was a political question and that the court had no jurisdiction to entertain the case.
x x x
The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the
Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified of
any referendum in their respective places of residence, much less did they participate in the alleged referendum. None of
them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had
been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a
plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon,
they dismissed the case. This is not the only major case in which the plea of "political question" was set up.
There have been a number of other cases in the past.
x x x The defense of the political question was rejected because the issue was clearly justiciable.
x x x
x x x When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is
judicial power? What is a political question?
The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights
which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a
judiciary party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The
Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot
force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but
they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I provides that:
Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or
enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of
government, the Supreme Court has, also another important function. The powers of government are generally
considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme
within its own sphere and independent of the others. Because of that supremacy power to determine whether a
given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as
well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a
branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so
capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction.
This is not only a judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty
to settle matters of this nature, by claiming that such matters constitute a political question.
I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the
subject of the judiciary.
103
(Italics in the original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified the concept of judicial
power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme
Court alone but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional
questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to
whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess
of jurisdiction, that is not a political question. Therefore, the court has the duty to decide.
x x x
FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new
numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political question
doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will
notice it says, "judicial power includes" and the reason being that the definition that we might make may not
cover all possible areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond the pale of
judicial power.
104
(Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a
power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political question
doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with
"truly political questions." From this clarification it is gathered that there are two species of political questions: (1) "truly political
questions" and (2) those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of powers to be
maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not
truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number of
cases taken jurisdiction over questions which are not truly political following the effectivity of the present Constitution.
In Marcos v. Manglapus,
105
this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into
areas which the Court, under previous constitutions, would have normally left to the political departments to decide.
106
x x
x
In Bengzon v. Senate Blue Ribbon Committee,
107
through Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as
held in a recent case, "(t)he political question doctrine neither interposes an obstacle to judicial determination of
the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away
with the applicability of the principle in appropriate cases."
108
(Emphasis and underscoring supplied)
And in Daza v. Singson,
109
speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even
if we were to assume that the issue presented before us was political in nature, we would still not be precluded from
resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political
question.
110
x x x (Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-justiciable political questions,
however. Identification of these two species of political questions may be problematic. There has been no clear standard. The
American case of Baker v. Carr
111
attempts to provide some:
x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a courts undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political
decision already made; or thepotentiality of embarrassment from multifarious pronouncements by various departments on
one question.
112
(Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional commitment of the
issue to a coordinate political department; (2) the lack of judicially discoverable and manageable standards for resolving it; and
(3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion. These standards
are not separate and distinct concepts but are interrelated to each in that the presence of one strengthens the conclusion that the
others are also present.
The problem in applying the foregoing standards is that the American concept of judicial review is radically different from our
current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in determining whether
they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the answer to the
question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are,
then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such
limits. This Court shall thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable offenses under the
Constitution.
II. Whether the second impeachment complaint was filed in accordance with Section 3(4), Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice into the Judicial Development Fund is an
unconstitutional infringement of the constitutionally mandated fiscal autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress are
unconstitutional for violating the provisions of Section 3, Article XI of the Constitution.
V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.
The first issue goes into the merits of the second impeachment complaint over which this Court has no jurisdiction. More
importantly, any discussion of this issue would require this Court to make a determination of what constitutes an
impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional Commission.
113
Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely, other high
crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the records of the 1986 Constitutional
Commission shows that the framers could find no better way to approximate the boundaries of betrayal of public trust and other
high crimes than by alluding to both positive and negative examples of both, without arriving at their clear cut definition or even a
standard therefor.
114
Clearly, the issue calls upon this court to decide a non-justiciable political question which is beyond the
scope of its judicial power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be avoided
whenever possible. Thus, in the case of Sotto v. Commission on Elections,
115
this Court held:
x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be
unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also
presents some other ground upon which the court may rest its judgment, that course will be adopted and the
constitutional question will be left for consideration until a case arises in which a decision upon such question
will be unavoidable.
116
[Emphasis and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,
117
where this Court invalidated Sections 13 and 32
of Republic Act No. 6657 for being confiscatory and violative of due process, to wit:
It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown
that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an
actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional
question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably
necessary to the decision of the case itself.
118
[Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mota or crux of
the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment complaint,
collectively raise several constitutional issues upon which the outcome of this controversy could possibly be made to rest. In
determining whether one, some or all of the remaining substantial issues should be passed upon, this Court is guided by the
related cannon of adjudication that "the court should not form a rule of constitutional law broader than is required by the precise
facts to which it is applied."
119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second impeachment complaint is
invalid since it directly resulted from a Resolution
120
calling for a legislative inquiry into the JDF, which Resolution and legislative
inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in
aid of legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the constitutionally mandated fiscal
autonomy of the judiciary; and (d) an assault on the independence of the judiciary.
121
Without going into the merits of petitioners Alfonso, et. al.s claims, it is the studied opinion of this Court that the issue of the
constitutionality of the said Resolution and resulting legislative inquiry is too far removed from the issue of the validity of the
second impeachment complaint. Moreover, the resolution of said issue would, in the Courts opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of legislative inquiries in general, which would thus be broader
than is required by the facts of these consolidated cases. This opinion is further strengthened by the fact that said petitioners
have raised other grounds in support of their petition which would not be adversely affected by the Courts ruling.
En passant, this Court notes that a standard for the conduct of legislative inquiries has already been enunciated by this Court
in Bengzon, Jr. v. Senate Blue Ribbon Commttee,
122
viz:
The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of
legislation. Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute or unlimited. Its
exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation
must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons
appearing in or affected by such inquiries shall be respected." It follows then that the right rights of persons under the Bill
of Rights must be respected, including the right to due process and the right not be compelled to testify against ones
self.
123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the original petition of petitioners
Candelaria, et. al., introduce the new argument that since the second impeachment complaint was verified and filed only by
Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4),
Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of
the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives signed a Resolution of Endorsement/Impeachment,
the same did not satisfy the requisites for the application of the afore-mentioned section in that the "verified complaint or
resolution of impeachment" was not filed "by at least one-third of all the Members of the House." With the exception of
Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have verified the same merely as a
"Resolution of Endorsement." Intervenors point to the "Verification" of the Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of
Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x"
124
Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said second impeachment
complaint to automatically become the Articles of Impeachment and for trial in the Senate to begin "forthwith," is that
the verified complaint be "filed," not merely endorsed, by at least one-third of the Members of the House of Representatives. Not
having complied with this requirement, they concede that the second impeachment complaint should have been calendared and
referred to the House Committee on Justice under Section 3(2), Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by
any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
Intervenors foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI of the Constitution to
apply, there should be 76 or more representatives who signed and verified the second impeachment complaint as complainants,
signed and verified the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the members of the House of Representatives as endorsers is not the
resolution of impeachment contemplated by the Constitution, such resolution of endorsement being necessary only from at least
one Member whenever a citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope of the constitutional
issues to the provisions on impeachment, more compelling considerations militate against its adoption as the lis mota or crux of
the present controversy. Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262,
have raised this issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional ground as
the basis for deciding the instant consolidated petitions would not only render for naught the efforts of the original petitioners in
G.R. No. 160262, but the efforts presented by the other petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for the determination of the instant cases is made
easier by the fact that said intervenors Macalintal and Quadra have joined in the petition of Candelaria, et. al., adopting the
latters arguments and issues as their own. Consequently, they are not unduly prejudiced by this Courts decision.
In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the very lis mota of the instant
controversy: (1) whether Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by the 12th Congress are
unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the
second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.
J udicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as an impeachment court,
has the sole power to try and decide all cases of impeachment. Again, this Court reiterates that the power of judicial review
includes the power of review over justiciable issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral compulsion for the Court to not assume
jurisdiction over the impeachment because all the Members thereof are subject to impeachment."
125
But this argument is very
much like saying the Legislature has a moral compulsion not to pass laws with penalty clauses because Members of the House
of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be declined,
because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no other tribunal to which the
controversy may be referred."
126
Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the
Constitution. More than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant petitions.
127
In
the august words of amicus curiae Father Bernas, "jurisdiction is not just a power; it is a solemn duty which may not be
renounced. To renounce it, even if it is vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself and must rule upon
the challenge because no other office has the authority to do so.
128
On the occasion that this Court had been an interested party
to the controversy before it, it has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty and,
as always, with detachment and fairness."
129
After all, "by [his] appointment to the office, the public has laid on [a member of the
judiciary] their confidence that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For this reason,
they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or power and to
be equipped with a moral fiber strong enough to resist the temptations lurking in [his] office."
130
The duty to exercise the power of adjudication regardless of interest had already been settled in the case ofAbbas v. Senate
Electoral Tribunal.
131
In that case, the petitioners filed with the respondent Senate Electoral Tribunal a Motion for Disqualification
or Inhibition of the Senators-Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all of
them were interested parties to said case as respondents therein. This would have reduced the Tribunals membership to only its
three Justices-Members whose disqualification was not sought, leaving them to decide the matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his
other colleagues in the Senate without inviting the same objections to the substitutes competence, the proposed mass
disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other
court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership of
Senators.
To our mind, this is the overriding consideration that the Tribunal be not prevented from discharging a duty which it
alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being
expressly imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have been
unaware of the possibility of an election contest that would involve all Senatorselect, six of whom would inevitably have
to sit in judgment thereon. Indeed, such possibility might surface again in the wake of the 1992 elections when once
more, but for the last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or mode
for settling such unusual situations or for the substitution of Senators designated to the Tribunal whose disqualification
may be sought. Litigants in such situations must simply place their trust and hopes of vindication in the fairness and
sense of justice of the Members of the Tribunal. Justices and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify
himself from sitting in judgment on any case before said Tribunal. Every Member of the Tribunal may, as his conscience
dictates, refrain from participating in the resolution of a case where he sincerely feels that his personal interests or biases
would stand in the way of an objective and impartial judgment. What we are merely saying is that in the light of the
Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its entire membership of Senators and
that no amendment of its Rules can confer on the three Justices-Members alone the power of valid adjudication of a
senatorial election contest.
More recently in the case of Estrada v. Desierto,
132
it was held that:
Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short ofpro
tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a
deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction of
his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the
deprivation of the judicial power of the court itself. It affects the very heart of judicial independence. The proposed mass
disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot
lawfully discharge if shorn of the participation of its entire membership of Justices.
133
(Italics in the original)
Besides, there are specific safeguards already laid down by the Court when it exercises its power of judicial review.
In Demetria v. Alba,
134
this Court, through Justice Marcelo Fernan cited the "seven pillars" of limitations of the power of judicial
review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA
135
as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining
because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real,
earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party
beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.
2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. . . . It is not the
habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.
3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be
applied.
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also
present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus,
if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state
challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can
be sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its
operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one
who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his
official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a
citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the
challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its
citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its
benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is
raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by
which the question may be avoided (citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United
States Supreme Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.
136
Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility that "judicial review of
impeachments might also lead to embarrassing conflicts between the Congress and the [J]udiciary." They stress the need to
avoid the appearance of impropriety or conflicts of interest in judicial hearings, and the scenario that it would be confusing and
humiliating and risk serious political instability at home and abroad if the judiciary countermanded the vote of Congress to remove
an impeachable official.
137
Intervenor Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution
against Congress would result in the diminution of its judicial authority and erode public confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the possibility of the
occurrence of a constitutional crisis is not a reason for this Court to refrain from upholding the Constitution in all impeachment
cases. Justices cannot abandon their constitutional duties just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive act is not regarded as settled until the Supreme
Court has passed upon the constitutionality of the act involved, the judgment has not only juridical effects but also
political consequences. Those political consequences may follow even where the Court fails to grant the petitioners
prayer to nullify an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way or the other,
itself constitutes a decision for the respondent and validation, or at least quasi-validation, follows."
138
Thus, in Javellana v. Executive Secretary
139
where this Court was split and "in the end there were not enough votes either to
grant the petitions, or to sustain respondents claims,"
140
the pre-existing constitutional order was disrupted which paved the way
for the establishment of the martial law regime.
Such an argument by respondents and intervenor also presumes that the coordinate branches of the government would behave
in a lawless manner and not do their duty under the law to uphold the Constitution and obey the laws of the land. Yet there is no
reason to believe that any of the branches of government will behave in a precipitate manner and risk social upheaval, violence,
chaos and anarchy by encouraging disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is well guided by the doctrine in People v. Veneracion, towit:
141
Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under the guise of religious or
political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise
the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of
broad discretionary powers by those acting under its authority. Under this system, [public officers] are guided by the Rule
of Law, and ought "to protect and enforce it without fear or favor," resist encroachments by governments, political parties,
or even the interference of their own personal beliefs.
142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of Rule V of the House
Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution, contending that the term "initiate" does
not mean "to file;" that Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has the
exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to file" because filing can, as Section 3
(2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by
any member of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3) by at
least 1/3 of all the members of the House. Respondent House of Representatives concludes that the one year bar prohibiting the
initiation of impeachment proceedings against the same officials could not have been violated as the impeachment complaint
against Chief Justice Davide and seven Associate Justices had not been initiated as the House of Representatives, acting as
the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory construction is, therefore, in
order.
That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually became
an Associate Justice of this Court, agreed on the meaning of "initiate" as "to file," as proffered and explained by Constitutional
Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus
curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he added that the act of
"initiating" included the act of taking initial action on the complaint, dissipates any doubt that indeed the word "initiate" as it twice
appears in Article XI (3) and (5) of the Constitution means to file the complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Websters
Third New International Dictionary of the English Language concisely puts it, it means "to perform or facilitate the first action,"
which jibes with Justice Regalados position, and that of Father Bernas, who elucidated during the oral arguments of the instant
petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle
and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those
deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing
of the complaint and its referral to the Committee on Justice.
Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella says that
impeachment is "deemed initiated" when the Justice Committee votes in favor of impeachment or when the House
reverses a contrary vote of the Committee. Note that the Rule does not say "impeachment proceedings" are initiated but
rather are "deemed initiated." The language is recognition that initiation happened earlier, but by legal fiction there is an
attempt to postpone it to a time after actual initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law. Fortunately, the intent of
the framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on impeachment,
I understand there have been many proposals and, I think, these would need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings, copies
of which have been furnished the Members of this body. This is borne out of my experience as a member of the
Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed
before the First Batasang Pambansa. For the information of the Committee, the resolution covers several steps in
the impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of
report, voting on the report, transmittal referral to the Senate, trial and judgment by the Senate.
x x x
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment
submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of
the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts
with the filing of the complaint. And what is actually done on the floor is that the committee resolution
containing the Articles of Impeachment is the one approved by the body.
As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on
the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard
Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of
Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only
approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging
these words because we have to be very technical about this. I have been bringing with me The Rules of the House of
Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are
with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this
on record.
x x x
MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will
not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of
Representatives of the United States regarding impeachment.
I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from lines
17 to 18, we delete the words which read: "to initiate impeachment proceedings"and the comma (,) and insert on
line 19 after the word "resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in "impeachment"
and replace the word "by" with OF, so that the whole section will now read: "A vote of at least one-third of all the
Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF the
Committee or to override its contrary resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States
is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries
with it the Articles of Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on line 25 in
the case of the direct filing of a verified compliant of one-third of all the Members of the House. I will mention again,
Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform
procedure of the House of Representatives of the United States Congress. Thank you, Madam President.
143
(Italics in the
original; emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the Accountability of
Public Officers.
144
It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In his amicus curiaebrief,
Commissioner Maambong explained that "the obvious reason in deleting the phrase "to initiate impeachment proceedings" as
contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for all that the initiation
of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of
impeachment does not initiate the impeachment proceedings which was already initiated by the filing of a verified
complaint under Section 3, paragraph (2), Article XI of the Constitution."
145
Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a member of the
1986 Constitutional Commission, that the word "initiate" as used in Article XI, Section 3(5) means to file, both adding, however,
that the filing must be accompanied by an action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the word "initiate," appearing in the constitutional
provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.
x x x
(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year,
(Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in the first sentence is
"impeachment case." The object in the second sentence is "impeachment proceeding." Following the principle of reddendo
singuala sinuilis, the term "cases" must be distinguished from the term "proceedings." An impeachment case is the legal
controversy that must be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-third of
all its members, can bring a case to the Senate. It is in that sense that the House has "exclusive power" to initiate all cases of
impeachment. No other body can do it. However, before a decision is made to initiate a case in the Senate, a "proceeding" must
be followed to arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin word initium,
means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle, and an end. It takes place
not in the Senate but in the House and consists of several steps: (1) there is the filing of a verified complaint either by a Member
of the House of Representatives or by a private citizen endorsed by a Member of the House of the Representatives; (2) there is
the processing of this complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the
resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further
processing; and (4) there is the processing of the same complaint by the House of Representatives which either affirms a
favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one
third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this
point that the House "initiates an impeachment case." It is at this point that an impeachable public official is successfully
impeached. That is, he or she is successfully charged with an impeachment "case" before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is transmitted to the Senate for
trial because that is the end of the House proceeding and the beginning of another proceeding, namely the trial. Neither is the
"impeachment proceeding" initiated when the House deliberates on the resolution passed on to it by the Committee, because
something prior to that has already been done. The action of the House is already a further step in the proceeding, not its
initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the
Committee on Justice for action. This is the initiating step which triggers the series of steps that follow.
The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor
proposing that "A vote of at least one-third of all the Members of the House shall be necessary toinitiate impeachment
proceedings," this was met by a proposal to delete the line on the ground that the vote of the House does not initiate
impeachment proceeding but rather the filing of a complaint does.
146
Thus the line was deleted and is not found in the present
Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated against the same official
more than once within a period of one year," it means that no second verified complaint may be accepted and referred to the
Committee on Justice for action. By his explanation, this interpretation is founded on the common understanding of the meaning
of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people, both ordinary and sophisticated,
as they understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify
words as they understand it and not as sophisticated lawyers confuse it.
To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1)
says "The House of Representatives shall have the exclusive power to initiate all cases of impeachment," This is a misreading of
said provision and is contrary to the principle of reddendo singula singulisby equating "impeachment cases" with "impeachment
proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is
without a doubt that the term "to initiate" refers to the filing of the impeachment complaint coupled with Congress taking initial
action of said complaint.
Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to
the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the
Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has
been initiated, another impeachment complaint may not be filed against the same official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if
there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2)
once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is
not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a
verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene
Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning from filing and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous construction as an aid in
the interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino
147
wherein this Court stated that "their personal opinions
(referring to Justices who were delegates to the Constitution Convention) on the matter at issue expressed during this Courts our
deliberations stand on a different footing from the properly recorded utterances of debates and proceedings." Further citing said
case, he states that this Court likened the former members of the Constitutional Convention to actors who are so absorbed in
their emotional roles that intelligent spectators may know more about the real meaning because of the latters balanced
perspectives and disinterestedness.
148
Justice Gutierrezs statements have no application in the present petitions. There are at present only two members of this Court
who participated in the 1986 Constitutional Commission Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide
has not taken part in these proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal opinions
now given by members of the Constitutional Commission, but has examined the records of the deliberations and proceedings
thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it
has the power to make and interpret its rules governing impeachment. Its argument is premised on the assumption that Congress
has absolute power to promulgate its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section." Clearly, its power to promulgate its rules on impeachment is limited by the phrase "to effectively carry
out the purpose of this section." Hence, these rules cannot contravene the very purpose of the Constitution which said rules were
intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to
make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing,
and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral,
together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary to either affirm a favorable resolution
with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be
recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the
House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress
had absolute rule making power, then it would by necessary implication have the power to alter or amend the meaning of the
Constitution without need of referendum.
In Osmea v. Pendatun,
149
this Court held that it is within the province of either House of Congress to interpret its rules and that it
was the best judge of what constituted "disorderly behavior" of its members. However, in Paceta v. Secretary of the Commission
on Appointments,
150
Justice (later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis
in United States v. Smith,
151
declared that where the construction to be given to a rule affects persons other than members of the
Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia,
152
quoting United States v. Ballin, Joseph &
Co.,
153
Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers each house to determine its
rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further that there
should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is
sought to be attained. It is only within these limitations that all matters of method are open to the determination of the Legislature.
In the same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more
emphatic as he stressed that in the Philippine setting there is even more reason for courts to inquire into the validity of the Rules
of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are non-justiciable. Nor do I agree that
we will trivialize the principle of separation of power if we assume jurisdiction over he case at bar. Even in the
United States, the principle of separation of power is no longer an impregnable impediment against the interposition of
judicial power on cases involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the issues before the Court. It is
in Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review congressional
rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may determine the rules of its proceedings." It appears
that in pursuance of this authority the House had, prior to that day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a
quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to
the Speaker with the names of the members voting, and be counted and announced in determining the presence of a
quorum to do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and
not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what
matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or
disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the
question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It
may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a
reasonable relation between the mode or method of proceedings established by the rule and the result which is
sought to be attained. But within these limitations all matters of method are open to the determination of the House, and
it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no
objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to
make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the
House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e, whether
they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1) that it did not ignore
any constitutional restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable relationship
with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the
mere invocation of the principle of separation of powers.
154
x x x
In the Philippine setting, there is a more compelling reason for courts to categorically reject the political
question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our
Constitution was intentionally cobbled to empower courts "x x x to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." This power is new and was not granted to our courts in the 1935 and 1972
Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM
granted this enormous power to our courts in view of our experience under martial law where abusive exercises
of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the
eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the
judiciary vis--vis the Executive and the Legislative departments of government.
155
x x x
The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to
exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down
any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion
amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of
this Court against the other branches of government despite their more democratic character, the President and the
legislators being elected by the people.
156
x x x
The provision defining judicial power as including the duty of the courts of justice. . . to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government constitutes the capstone of the efforts of the Constitutional Commission to upgrade
the powers of this court vis--vis the other branches of government. This provision was dictated by our experience under
martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. x x
x
x x x
In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of
discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our
distinct experience as nation, is not merely evolutionary but revolutionary.Under the 1935 and the 1973 Constitutions, this
Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there
is a shift in stress this Court is mandated to approach constitutional violations not by finding out what it
should not do but what itmust do. The Court must discharge this solemn duty by not resuscitating a past that petrifies
the present.
I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at
bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not
be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if
we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the judicial sword that has
increasingly emboldened other branches of government to denigrate, if not defy, orders of our
courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of
judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable
foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the
experience of foreigners.
157
(Italics in the original emphasis and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third parties alleging the violation of
private rights and the Constitution are involved.
Neither may respondent House of Representatives rely on Nixon v. US
158
as basis for arguing that this Court may not decide on
the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already observed, the U.S. Federal Constitution
simply provides that "the House of Representatives shall have the sole power of impeachment." It adds nothing more. It gives no
clue whatsoever as to how this "sole power" is to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court
concluded that there was a textually demonstrable constitutional commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives
since our Constitution, as earlier enumerated, furnishes several provisions articulating how that "exclusive power" is to be
exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that impeachment proceedings are
deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is
sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified
complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the
House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House
thus clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House
Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an
impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a
one year period following Article XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G.
Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice
on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of
impeachment proceedings against the same impeachable officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a phenomenon that takes the center stage of our
individual and collective consciousness as a people with our characteristic flair for human drama, conflict or tragedy. Of course
this is not to demean the seriousness of the controversy over the Davide impeachment. For many of us, the past two weeks have
proven to be an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a dialectical
struggle to articulate what they respectively believe to be the correct position or view on the issues involved. Passions had ran
high as demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets armed with their familiar
slogans and chants to air their voice on the matter. Various sectors of society - from the business, retired military, to the academe
and denominations of faith offered suggestions for a return to a state of normalcy in the official relations of the governmental
branches affected to obviate any perceived resulting instability upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment had been constituted, this Court was specifically
asked, told, urged and argued to take no action of any kind and form with respect to the prosecution by the House of
Representatives of the impeachment complaint against the subject respondent public official. When the present petitions were
knocking so to speak at the doorsteps of this Court, the same clamor for non-interference was made through what are now the
arguments of "lack of jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting the Court from any move that
may have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the
impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been already explained, the Court
found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial
review over an issue whose resolution precisely called for the construction or interpretation of a provision of the fundamental law
of the land. What lies in here is an issue of a genuine constitutional material which only this Court can properly and competently
address and adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-face thus
with a matter or problem that squarely falls under the Courts jurisdiction, no other course of action can be had but for it to pass
upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime
of judicial supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the
impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule.
Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of
decidedly political questions. Because it is not at all the business of this Court to assert judicial dominance over the other two
great branches of the government. Rather, the raison detre of the judiciary is to complement the discharge by the executive and
legislative of their own powers to bring about ultimately the beneficent effects of having founded and ordered our society upon
the rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment proceedings against the Chief
Justice, the members of this Court have actually closed ranks to protect a brethren. That the members interests in ruling on said
issue is as much at stake as is that of the Chief Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has long held and been entrusted with the judicial power to
resolve conflicting legal rights regardless of the personalities involved in the suits or actions. This Court has dispensed justice
over the course of time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or
speculations could be made to it, so long as it rendered judgment according to the law and the facts. Why can it not now be
trusted to wield judicial power in these petitions just because it is the highest ranking magistrate who is involved when it is an
incontrovertible fact that the fundamental issue is not him but the validity of a government branchs official act as tested by the
limits set by the Constitution? Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case
in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the Supreme Court as likely
incapable of impartiality when one of its members is a party to a case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all men
before the law as essential to the laws moral authority and that of its agents to secure respect for and obedience to its
commands. Perhaps, there is no other government branch or instrumentality that is most zealous in protecting that principle of
legal equality other than the Supreme Court which has discerned its real meaning and ramifications through its application to
numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice is not above the law and
neither is any other member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law
than anybody else. The law is solicitous of every individuals rights irrespective of his station in life.
The Filipino nation and its democratic institutions have no doubt been put to test once again by this impeachment case against
Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other than the Constitution in search for a solution to what
many feared would ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to have found
answers in our bedrock of legal principles, it is equally important that it went through this crucible of a democratic process, if only
to discover that it can resolve differences without the use of force and aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by
the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint
against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is barred under
paragraph 5, section 3 of Article XI of the Constitution.
SO ORDERED.
Bellosillo and Tinga, JJ., see separate opinion.
Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.
Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.
Footnotes
1
Rollo, G.R. No. 160261 at 180-182; Annex "H."
2
Per Special Appearance with Manifestation of House Speaker Jose C. De Venecia, Jr. (Rollo, G.R. No. 160261 at 325-
363) the pertinent House Resolution is HR No. 260, but no copy of the same was submitted before this Court.
3
Id. at 329. Created through PD No. 1949 (July 18, 1984), the JDF was established "to help ensure and guarantee the
independence of the Judiciary as mandated by the Constitution and public policy and required by the impartial
administration of justice" by creating a special fund to augment the allowances of the members and personnel of the
Judiciary and to finance the acquisition, maintenance and repair of office equipment and facilities."
4
Rollo, G.R. No. 160261 at 120-139; Annex "E."
5
The initial complaint impleaded only Justices Artemio V. Panganiban, Josue N. Bellosillo, Reynato S. Puno, Antonio T.
Carpio and Renato C. Corona, and was later amended to include Justices Jose C. Vitug, and Leonardo A. Quisumbing.
6
Supra note 4 at 123-124.
7
Rollo, G.R. No. 160403 at 48-53; Annex "A."
8
http://www.congress.gov.ph/search/bills/hist_show.php?bill_no=RPT9999
9
Rollo, G.R. No. 160262 at 8.
10
Rollo, G.R. No. 160295 at 11.
11
Rollo, G.R. No. 160262 at 43-84; Annex "B."
12
Supra note 2.
13
A perusal of the attachments submitted by the various petitioners reveals the following signatories to the second
impeachment complaint and the accompanying Resolution/Endorsement. 1. Gilbert Teodoro, Jr., NPC, Tarlac (principal
complainant) 2. Felix Fuentebella, NPC, Camarines Sur (second principal complainant) 3. Julio Ledesma, IV, NPC,
Negros Occidental 4. Henry Lanot, NPC, Lone District of Pasig City 5. Kim Bernardo-Lokin, Party List-CIBAC 6.
Marcelino Libanan, NPC, Lone District of Eastern Samar, (Chairman, House Committee on Justice) 7. Emmylou Talino-
Santos, Independent, 1st District, North Cotobato 8. Douglas RA. Cagas, NPC, 1st District, Davao del Sur 9. Sherwin
Gatchalian, NPC, 1st District, Valenzuela City 10. Luis Bersamin, Jr., PDSP-PPC, Lone District of Abra 11. Nerissa Soon-
Ruiz Alayon, 6th District, Cebu 12. Ernesto Nieva, Lakas, 1st District, Manila 13. Edgar R. Erice, Lakas, 2nd District,
Kalookan City 14. Ismael Mathay III, Independent, 2nd District, Quezon City 15. Samuel Dangwa, Reporma, Lone District
of Benguet 16. Alfredo Maraon, Jr., NPC, 2nd District, Negros Occidental 17. Cecilia Jalosjos-Carreon, Reporma, 1st
District, Zamboanga del Norte 18. Agapito A. Aquino, LDP, 2nd District, Makati City 19. Fausto L. Seachon, Jr., NPC, 3rd
District, Masbate 20. Georgilu Yumul-Hermida, Pwersa ng Masa, 4th District, Quezon 21. Jose Carlos Lacson, Lakas, 3rd
District, Negros Occidental 22. Manuel C. Ortega, NPC, 1st District, La Union 23. Uliran Joaquin, NPC, 1st District,
Laguna 24. Soraya C. Jaafar, Lakas, Lone District of Tawi-Tawi 25. Wilhelmino Sy-Alvarado, Lakas, 1st District, Bulacan
26. Claude P. Bautista, NPC, 2nd District, Davao Del Sur 27. Del De Guzman, Lakas, Lone District of Marikina City 28.
Zeneida Cruz-Ducut, NPC, 2nd District, Pampanga 29. Augusto Baculio, Independent-LDP, 2nd District, Misamis Oriental
30. Faustino Dy III, NPC-Lakas, 3rd District, Isabela 31. Agusto Boboy Syjuco, Lakas, 2nd District, Iloilo 32. Rozzano
Rufino B. Biazon, LDP, Lone District of Muntinlupa City 33. Leovigildo B. Banaag, NPC-Lakas, 1st District, Agusan del
Norte 34. Eric Singson, LP, 2nd District, Ilocos Sur 35. Jacinto Paras, Lakas, 1st District, Negros Oriental 36. Jose Solis,
Independent, 2nd District, Sorsogon 37. Renato B. Magtubo, Party List-Partido ng Manggagawa 38. Herminio G. Teves,
Lakas, 3rd District, Negros Oriental 39. Amado T. Espino, Jr., Lakas, 2nd District, Pangasinan 40. Emilio Macias, NPC,
2nd District, Negros Oriental 41. Arthur Y. Pingoy, Jr., NPC, 2nd District, South Cotobato 42. Francis Nepomuceno, NPC,
1st District, Pampanga 43. Conrado M. Estrella III, NPC, 6th District, Pangasinan 44. Elias Bulut, Jr., NPC, Lone District
of Apayao 45. Jurdin Jesus M. Romualdo, NPC, Lone District of Camiguin 46. Juan Pablo Bondoc, NPC, 4th District,
Pampanga 47. Generoso DC. Tulagan, NPC, 3rd District, Pangasinan 48. Perpetuo Ylagan, Lakas, Lone District of
Romblon 49. Michael Duavit, NPC, 1st District, Rizal 50. Joseph Ace H. Durano, NPC, 5th District, Cebu 51. Jesli Lapus,
NPC, 3rd District, Tarlac 52. Carlos Q. Cojuangco, NPC, 4th District, Negros Occidental 53. Georgidi B. Aggabao, NPC,
4th District, Santiago, Isabela 54. Francis Escudero, NPC, 1st District, Sorsogon 55. Rene M. Velarde, Party List-Buhay
56. Celso L. Lobregat, LDP, Lone District of Zamboanga City 57. Alipio Cirilo V. Badelles, NPC, 1st District, Lanao del
Norte 58. Didagen P. Dilangalen, Pwersa ng Masa, Lone District of Maguindanao 59. Abraham B. Mitra, LDP, 2nd
District, Palawan 60. Joseph Santiago, NPC, Lone District of Catanduanes 61. Darlene Antonino-Custodio, NPC, 1st
District of South Cotobato & General Santos City 62. Aleta C. Suarez, LP, 3rd District, Quezon 63. Rodolfo G. Plaza,
NPC, Lone District of Agusan del Sur 64. JV Bautista, Party List-Sanlakas 65. Gregorio Ipong, NPC, 2nd District, North
Cotabato 66. Gilbert C. Remulla, LDP, 2nd District, Cavite 67. Rolex T. Suplico, LDP, 5th District, Iloilo 68. Celia Layus,
NPC, Cagayan 69. Juan Miguel Zubiri, Lakas, 3rd District, Bukidnon 70. Benasing Macarambon Jr,. NPC, 2nd District,
Lanao del Sur 71. Josefina Joson, NPC, Lone District of Nueva Ecija 72. Mark Cojuangco, NPC, 5th District, Pangasinan
73. Mauricio Domogan, Lakas, Lone District of Baguio City 74. Ronaldo B. Zamora, Pwersa ng Masa, Lone District of
San Juan 75. Angelo O. Montilla, NPC, Lone District of Sultan Kudarat 76. Roseller L. Barinaga, NPC, 2nd District,
Zamboanga del Norte 77. Jesnar R. Falcon, NPC, 2nd District, Surigao del Sur 78. Ruy Elias Lopez, NPC, 3rd District,
Davao City.
14
Rollo, G.R. No. 160261 at 5. Petitioner had previously filed two separate impeachment complaints before the House of
Representatives against Ombudsman Aniano Desierto.
15
299 SCRA 744 (1998). In Chavez v. PCGG, petitioner Chavez argued that as a taxpayer and a citizen, he had the legal
personality to file a petition demanding that the PCGG make public any and all negotiations and agreements pertaining to
the PCGGs task of recovering the Marcoses ill-gotten wealth. Petitioner Chavez further argued that the matter of
recovering the ill-gotten wealth of the Marcoses is an issue of transcendental importance to the public. The Supreme
Court, citing Taada v. Tuvera, 136 SCRA 27 (1985), Legaspi v. Civil Service Commission, 150 SCRA 530 (1987)
and Albano v. Reyes, 175 SCRA 264 (1989) ruled that petitioner had standing. The Court, however, went on to elaborate
that in any event, the question on the standing of petitioner Chavez was rendered moot by the intervention of the Jopsons
who are among the legitimate claimants to the Marcos wealth.
16
384 SCRA 152 (2002). In Chavez v. PEA-Amari Coastal Bay Development Corporation, wherein the petition sought to
compel the Public Estates Authority (PEA) to disclose all facts on its then on-going negotiations with Amari Coastal
Development Corporation to reclaim portions of Manila Bay, the Supreme Court said that petitioner Chavez had the
standing to bring a taxpayers suit because the petition sought to compel PEA to comply with its constitutional duties.
17
224 SCRA 792 (1993).
18
Subsequent petitions were filed before this Court seeking similar relief. Other than the petitions, this Court also
received Motions for Intervention from among others, Sen. Aquilino Pimentel, Jr., and Special Appearances by House
Speaker Jose C. de Venecia, Jr., and Senate President Franklin Drilon.
19
Supra note 2 at 10.
20
Justice Florenz D. Regalado, Former Constitutional Commissioners Justice Regalado E. Maambong and Father
Joaquin G. Bernas, SJ, Justice Hugo E. Gutierrez, Jr., Former Minister of Justice and Solicitor General Estelito P.
Mendoza, Deans Pacifico Agabin and Raul C. Pangalangan, and Former Senate President Jovito R. Salonga,.
21
Rollo, G.R. No. 160261 at 275-292.
22
Id. at 292.
23
63 Phil 139 (1936).
24
Id. at 157-159.
25
Vide Alejandrino v. Quezon, 46 Phil 83 (1924); Taada v. Cuenco, 103 Phil 1051 (1957); Ynot v. Intermediate
Appellate Court, 148 SCRA 659, 665 (1987).
26
Const., art. VIII, sec. 1.
27
5 US 137 (1803).
28
Id. at 180.
29
In In re Prautch, 1 Phil 132 (1902), this Court held that a statute allowing for imprisonment for non-payment of a debt
was invalid. In Casanovas v. Hord, 8 Phil 125 (1907), this Court invalidated a statute imposing a tax on mining claims on
the ground that a government grant stipulating that the payment of certain taxes by the grantee would be in lieu of other
taxes was a contractual obligation which could not be impaired by subsequent legislation. In Concepcion v. Paredes, 42
Phil 599 (1921), Section 148 (2) of the Administrative Code, as amended, which provided that judges of the first instance
with the same salaries would, by lot, exchange judicial districts every five years, was declared invalid for being a
usurpation of the power of appointment vested in the Governor General. In McDaniel v. Apacible, 42 Phil 749 (1922), Act
No. 2932, in so far as it declares open to lease lands containing petroleum which have been validly located and held, was
declared invalid for being a depravation of property without due process of law. In U.S. v. Ang Tang Ho, 43 Phil 1 (1922),
Act No. 2868, in so far as it authorized the Governor-General to fix the price of rice by proclamation and to make the sale
of rice in violation of such a proclamation a crime, was declared an invalid delegation of legislative power.
30
Vicente V. Mendoza, Sharing The Passion and Action of our Time 62-53 (2003).
31
Supra note 23.
32
Id. at 156-157.
33
Florentino P. Feliciano, The Application of Law: Some Recurring Aspects Of The Process Of Judicial Review And
Decision Making, 37 AMJJUR 17, 24 (1992).
34
Ibid.
35
I Record of the Constitutional Commission 434-436 (1986).
36
31 SCRA 413 (1970)
37
Id. at 422-423; Vide Baranda v. Gustilo, 165 SCRA 757, 770 (1988); Luz Farms v. Secretary of the Department of
Agrarian Reform, 192 SCRA 51 (1990); Ordillo v. Commission on Elections, 192 SCRA 100 (1990).
38
194 SCRA 317 (1991).
39
Id. at 325 citing Maxwell v. Dow, 176 US 581.
40
152 SCRA 284 (1987).
41
Id. at 291 citing Gold Creek Mining v. Rodriguez, 66 Phil 259 (1938), J.M. Tuason & Co., Inc v. Land Tenure
Administration, supra note 36, and I Taada and Fernando, Constitution of the Philippines 21 ( Fourth Ed. ).
42
82 Phil 771 (1949).
43
Id. at 775.
44
Supra note 38.
45
Id. at 330-331.
46
Id. at 337-338 citing 16 CJS 2.31; Commonwealth v. Ralph, 111 Pa. 365, 3 Atl. 220 and Household Finance
Corporation v. Shaffner, 203, SW 2d, 734, 356 Mo. 808.
47
Supra note 2.
48
Citing Section 3 (6), Article VIII of the Constitution provides:
(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that
purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief
Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the
concurrence of two-thirds of all the Members of the Senate.
49
Supra note 21.
50
506 U.S. 224 (1993).
51
Supra note 2 at 349-350 citing Gerhardt, Michael J. The Federal Impeachment Process: A Constitutional and Historical
Analysis, 1996, p. 119.
52
227 SCRA 100 (1993).
53
Id. at 112.
54
US Constititon. Section 2. x x x The House of Representatives shall have the sole Power of Impeachment.
55
1987 Constitution, Article XI, Section 3 (1). The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.
56
Supra note 2 at 355 citing Agresto, The Supreme Court and Constitutional Democracy, 1984, pp. 112-113.
57
369 U.S. 186 (1962).
58
141 SCRA 263 (1986).
59
Supra note 25.
60
298 SCRA 756 (1998).
61
272 SCRA 18 (1997).
62
201 SCRA 792 (1991).
63
187 SCRA 377 (1990).
64
180 SCRA 496 (1989).
65
Supra note 25.
66
Supra note 23.
67
Civil Liberties Union v. Executive Secretary, supra note 38 at 330-331.
68
Id. at 158-159.
69
IBP v. Zamora, 338 SCRA 81 (2000) citing Joya v. PCGG, 225 SCRA 568 (1993); House International Building
Tenants Association, Inc. v. Intermediate Appellate Court, 151 SCRA 703 (1987); Baker v. Carr, supra note 57.
70
Citing Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995).
71
Citing Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997).
72
Citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, 163 SCRA 371, 378 (1988).
73
Rule 3, Section 2. Parties in interest. A real party in interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules,
every action must be prosecuted or defended in the name of the real party in interest.
74
JG Summit Holdings, Inc. v. Court of Appeals, 345 SCRA 143, 152 (2000).
75
246 SCRA 540 (1995).
76
Id. at 562-564.
77
Agan v. PIATCO, G.R. No. 155001, May 5, 2003 citing BAYAN v. Zamora, 342 SCRA 449, 562-563 (2000) and Baker
v. Carr, supra note 57; Vide Gonzales v. Narvasa, 337 SCRA 733 (2000); TELEBAP v. COMELEC, 289 SCRA 337
(1998).
78
Chavez v. PCGG, supra note 15.
79
Del Mar v. PAGCOR 346 SCRA 485, 501 (2000) citing Kilosbayan, Inc., et.al. v. Morato, supra note 70;Dumlao v.
COMELEC, 95 SCRA 392 (1980); Sanidad v. Comelec, 73 SCRA 333 (1976); Philconsa v. Mathay, 18 SCRA 300
(1966); Pascual v. Secretary of Public Works, 110 Phil 331 (1960); Vide Gonzales v. Narvasa, supra note 77; Pelaez v.
Auditor General, 15 SCRA 569 (1965); Philconsa v. Gimenez, 15 SCRA 479 (1965); Iloilo Palay & Corn Planters
Association v. Feliciano, 13 SCRA 377 (1965).
80
BAYAN v. Zamora, supra note 77 citing Bugnay v. Laron, 176 SCRA 240, 251-252 (1989); Vide Del Mar v. PAGCOR,
supra note 79; Gonzales v. Narvasa, supra note 77; TELEBAP v. COMELEC, supra note 77;Kilosbayan, Inc. v. Morato,
supra note 70; Joya v. PCGG, supra note 69; Dumlao v. COMELEC, supra note 79; Sanidad v. COMELEC, supra note
79; Philconsa v. Mathay, supra note 79; Pelaez v. Auditor General, supra note 79; Philconsa v. Gimenez, supra note
79; Iloilo Palay & Corn Planters Association v. Feliciano, supra note 79; Pascual v. Sec. of Public Works, supra note 79.
81
Gonzales v. Narvasa, supra note 77 citing Dumlao v. COMELEC, supra note 79; Sanidad v. COMELEC, supra note
79; Tan v. Macapagal, 43 SCRA 677 (1972).
82
Tatad v. Garcia, Jr., 243 SCRA 436 (1995); Kilosbayan, Inc. v. Morato, supra note 70 at 140-141 citing Philconsa v.
Enriquez, 235 SCRA 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales v. Macaraig, 191 SCRA 452
(1990); Tolentino v. COMELEC, 41 SCRA 702 (1971).
83
Del Mar v. PAGCOR, supra note 79 at 502-503 citing Philconsa v. Mathay, supra note 79.
84
Chinese Flour Importers Association v. Price Stabilization Board, 89 Phil 439, 461 (1951) citing Gallego et al. vs.
Kapisanan Timbulan ng mga Manggagawa, 46 Off. Gaz, 4245.
85
Philippine Constitution Association v. Gimenez, supra note 79 citing Gonzales v. Hechanova, 118 Phil. 1065
(1963); Pascual v. Secretary, supra note 79.
86
Integrated Bar of the Philippines v. Zamora, 338 SCRA 81 (2000).
87
MVRS Publications, Inc. v. Islamic Dawah Council of the Philippines, G.R. No. 135306, January 28, 2003,citing
Industrial Generating Co. v. Jenkins 410 SW 2d 658; Los Angeles County Winans, 109 P 640;Weberpals v. Jenny, 133
NE 62.
88
Mathay v. Consolidated Bank and Trust Company, 58 SCRA 559, 570-571 (1974), citing Moores Federal Practice 2d
ed., Vol. III, pages 3423-3424; 4 Federal Rules Service, pages 454-455; Johnson, et al., vs. Riverland Levee Dist., et
al., 117 2d 711, 715; Borlasa v. Polistico, 47 Phil. 345, 348 (1925).
89
MVRS Publications, Inc. v. Islamic Dawah Council of the Philippines, supra note 87, dissenting opinion of Justice
Carpio; Bulig-bulig Kita Kamag-Anak Assoc. v. Sulpicio Lines, 173 SCRA 514, 514-515 (1989); Re: Request of the Heirs
of the Passengers of Doa Paz, 159 SCRA 623, 627 (1988) citing Moore, Federal Practice, 2d ed., Vol. 3B, 23-257, 23-
258; Board of Optometry v. Colet, 260 SCRA 88 (1996), citing Section 12, Rule 3, Rules of Court; Mathay v.
Consolidated Bank and Trust Co., supra note 88; Oposa v. Factoran, supra note 17.
90
Kilosbayan v. Guingona, 232 SCRA 110 (1994).
91
Kilosbayan, Inc. v. Morato, supra note 70 citing Civil Liberties Union v. Executive Secretary, supra note 38; Philconsa v.
Gimnez, supra note 79; Iloilo Palay and Corn Planters Association v. Feliciano, supra note 79; Araneta v. Dinglasan, 84
Phil. 368 (1949); vide Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Santiago v.
COMELEC, 270 SCRA 106 (1997); KMU v. Garcia, Jr., 239 SCRA 386 (1994); Joya v. PCGG, 225 SCRA 368
(1993); Carpio v. Executive Secretary, 206 SCRA 290 (1992);Osmea v. COMELEC, 199 SCRA 750 (1991); Basco v.
PAGCOR, 197 SCRA 52 (1991); Guingona v. Carague, 196 SCRA 221 (1991); Daza v. Singson, supra note 64; Dumlao
v. COMELEC, supra note 79.
92
Firestone Ceramics, Inc. v. Court of Appeals, 313 SCRA 522, 531 (1999) citing Gibson vs. Revilla, 92 SCRA
219; Magsaysay-Labrador v. Court of Appeals, 180 SCRA 266, 271 (1989).
93
Supra note 79.
94
Id. at 403.
95
Supra note 81.
96
Id. at 681.
97
SECTION 3. x x x
(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any
citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of
Business within ten session days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each
Member shall be recorded.
98
Supra note 25.
99
Id. at 1067.
100
Vide Barcelon v. Baker, 5 Phil. 87 (1905); Montenegro v. Castaeda, 91 Phil. 882 (1952); De la Llana v.
COMELEC, 80 SCRA 525 (1977).
101
Vide Avelino v. Cuenco, 83 Phil. 17 (1949); Macias v. COMELEC, 3 SCRA 1 (1961); Cunanan v. Tan, Jr., 5 SCRA 1
(1962); Gonzales v. COMELEC, 21 SCRA 774 (1967); Lansang v. Garcia, 42 SCRA 448 (1971); Tolentino v. COMELEC,
supra note 82.
102
50 SCRA 30 (1973).
103
Record of the Constitution Commission, Vol. 1, July 10, 1986 at 434-436.
104
Id. at 439-443.
105
177 SCRA 668 (1989).
106
Id. at 695.
107
203 SCRA 767 (1991).
108
Id. at 776 citing Gonzales v. Macaraig, 191 SCRA 452, 463 (1990).
109
Supra note 64.
110
Id. at 501.
111
Supra note 57.
112
Id. at 217.
113
2 Record of the Constitutional Commission at 286.
114
Id. at 278, 316, 272, 283-284, 286.
115
76 Phil 516 (1946).
116
Id. at 522.
117
Supra note 37.
118
Id. at 58 citing Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,175 SCRA
343 (1989).
119
Vide concurring opinion of Justice Vicente Mendoza in Estrada v.Desierto, 353 SCRA 452, 550 (2001);Demetria v.
Alba, 148 SCRA 208, 210-211 (1987) citing Ashwander v. TVA, 297 U.S. 288 (1936).
120
As adverted to earlier, neither a copy the Resolution nor a record of the hearings conducted by the House Committee
on Justice pursuant to said Resolution was submitted to the Court by any of the parties.
121
Rollo, G.R. No. 160310 at 38.
122
Supra note 107.
123
Id. at 777 (citations omitted).
124
Rollo, G.R. No. 160262 at 73.
125
Supra note 2 at 342.
126
Perfecto v. Meer, 85 Phil 552, 553 (1950).
127
Estrada v. Desierto, 356 SCRA 108, 155-156 (2001); Vide Abbas v. Senate Electoral Tribunal, 166 SCRA 651
(1988); Vargas v. Rilloraza, et al., 80 Phil. 297, 315-316 (1948); Planas v. COMELEC, 49 SCRA 105 (1973), concurring
opinion of J. Concepcion.
128
Philippine Judges Association v. Prado, 227 SCRA 703, 705 (1993).
129
Ibid.
130
Ramirez v. Corpuz-Macandog, 144 SCRA 462, 477 (1986).
131
Supra note 127.
132
Estrada v. Desierto, supra note 127.
133
Id. at 155-156 citing Abbas, et al. v. Senate Electoral Tribunal, supra note 127; Vargas v. Rilloraza, et al., supra note
127.
134
Supra note 119 at 210-211.
135
Supra note 119.
136
Board of Optometry v. Colet, 260 SCRA 88, 103 (1996); Joya v. PCGG, supra note 69 at 575;Macasiano v. National
Housing Authority, 224 SCRA 236, 242 (1993); Santos III v. Northwestern Airlines,210 SCRA 256, 261-262
(1992), National Economic Protectionism Association v. Ongpin, 171 SCRA 657, 665 (1989).
137
Supra note 2 at 353.
138
Supra note 33 at 32.
139
Supra note 102.
140
Supra note 33.
141
249 SCRA 244, 251 (1995).
142
Id. at 251.
143
2 Records of the Constitutional Commission at 342-416.
144
Id. at 416.
145
Commissioner Maambongs Amicus Curiae Brief at 15.
146
2 Record of the Constitutional Commission at 375-376, 416
147
77 Phil. 192 (1946).
148
Justice Hugo Guiterrezs Amicus Curiae Brief at 7.
149
109 Phil. 863 (1960).
150
40 SCRA 58, 68 (1971).
151
286 U.S. 6, 33 (1932).
152
277 SCRA 268, 286 (1997).
153
144 U.S. 1 (1862).
154
Supra note 152 at 304-306.
155
Id. at 311.
156
Id. at 313.
157
Supra note 152 at 314-315.
158
Supra note 50.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 106483 May 22, 1995
ERNESTO L. CALLADO, petitioner,
vs.
INTERNATIONAL RICE RESEARCH INSTITUTE, respondent.
ROMERO, J .:
Did the International Rice Research Institute (IRRI) waive its immunity from suit in this dispute which arose from an employer-
employee relationship?
We rule in the negative and vote to dismiss the petition.
Ernesto Callado, petitioner, was employed as a driver at the IRRI from April 11, 1983 to December 14, 1990. On February 11,
1990, while driving an IRRI vehicle on an official trip to the Ninoy Aquino International Airport and back to the IRRI, petitioner
figured in an accident.
Petitioner was informed of the findings of a preliminary investigation conducted by the IRRIs Human Resource Development
Department Manager in a Memorandum dated March 5, 1990.
1
In view of the aforesaid findings, he was charged with:
(1) Driving an institute vehicle while on official duty under the influence of liquor;
(2) Serious misconduct consisting of your failure to report to your supervisors the failure of your vehicle to start
because of a problem with the car battery which, you alleged, required you to overstay in Manila for more than six
(6) hours, whereas, had you reported the matter to IRRI, Los Baos by telephone, your problem could have been
solved within one or two hours;
(3) Gross and habitual neglect of your duties.
2
In a Memorandum dated March 9, 1990, petitioner submitted his answer and defenses to the charges against him.
3
After
evaluating petitioners answer, explanations and other evidence, IRRI issued a Notice of Termination to petitioner on December 7,
1990.
4
Thereafter, petitioner filed a complaint on December 19, 1990 before the Labor Arbiter for illegal dismissal, illegal suspension
and indemnity pay with moral and exemplary damages and attorneys fees.
On January 2, 1991, private respondent IRRI, through counsel, wrote the Labor Arbiter to inform him that the Institute enjoys
immunity from legal process by virtue of Article 3 of Presidential Decree No. 1620,
5
and that it invokes such diplomatic immunity
and privileges as an international organization in the instant case filed by petitioner, not having waived the same.
6
IRRI likewise wrote in the same tenor to the Regional Director of the Department of Labor and Employment.
7
While admitting IRRIs defense of immunity, the Labor Arbiter, nonetheless, cited an Order issued by the Institute on August 13,
1991 to the effect that "in all cases of termination, respondent IRRI waives its immunity,"
8
and, accordingly, considered the
defense of immunity no longer a legal obstacle in resolving the case. The dispositive portion of the Labor arbiters decision dated
October 31, 1991, reads:
WHEREFORE, premises considered, judgment is hereby rendered ordering respondent to reinstate complainant
to his former position without loss or (sic) seniority rights and privileges within five (5) days from receipt hereof
and to pay his full backwages from March 7, 1990 to October 31, 1991, in the total amount of P83,048.75
computed on the basis of his last monthly salary.
9
The NLRC found merit in private respondent s appeal and, finding that IRRI did not waive its immunity, ordered the aforesaid
decision of the Labor Arbiter set aside and the complaint dismissed.
10
Hence, this petition where it is contended that the immunity of the IRRI as an international organization granted by Article 3 of
Presidential Decree No. 1620 may not be invoked in the case at bench inasmuch as it waived the same by virtue of its
Memorandum on "Guidelines on the handling of dismissed employees in relation to P.D. 1620."
11
It is also petitioners position that a dismissal of his complaint before the Labor Arbiter leaves him no other remedy through which
he can seek redress. He further states that since the investigation of his case was not referred to the Council of IRRI Employees
and Management (CIEM), he was denied his constitutional right to due process.
We find no merit in petitioners arguments.
IRRIs immunity from suit is undisputed.
Presidential Decree No. 1620, Article 3 provides:
Art. 3. Immunity from Legal Process. The Institute shall enjoy immunity from any penal, civil and administrative
proceedings, except insofar as that immunity has been expressly waived by the Director-General of the Institute
or his authorized representatives.
In the case of International Catholic Migration Commission v. Hon. Calleja, et al. and Kapisanan ng Manggagawa at TAC sa IRRI
v. Secretary of Labor and Employment and IRRI,
12
the Court upheld the constitutionality of the aforequoted law. After the Court
noted the letter of the Acting Secretary of Foreign Affairs to the Secretary of Labor dated June 17, 1987, where the immunity of IRRI
from the jurisdiction of the Department of Labor and Employment was sustained, the Court stated that this opinion constituted "a
categorical recognition by the Executive Branch of the Government that . . . IRRI enjoy(s) immunities accorded to international
organizations, which determination has been held to be a political question conclusive upon the Courts in order not to embarass a
political department of Government.
13
We cited the Courts earlier pronouncement in WHO v. Hon. Benjamin Aquino, et al.,
14
to wit:
It is a recognized principle of international law and under our system of separation of powers that diplomatic
immunity is essentially a political question and courts should refuse to look beyond a determination by the
executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the
executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of
immunity upon appropriate suggestion by the principal law officer of the government . . . or other officer acting
under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction .
. . as to embarass the executive arm of the government in conducting foreign relations, it is accepted doctrine that
in such cases the judicial department of (this) government follows the action of the political branch and will not
embarrass the latter by assuming an antagonistic jurisdiction.
15
Further, we held that "(t)he raison detre for these immunities is the assurance of unimpeded performance of their functions by
the agencies concerned.
The grant of immunity from local jurisdiction to . . . and IRRI is clearly necessitated by their international character
and respective purposes. The objective is to avoid the danger of partiality and interference by the host country in
their internal workings. The exercise of jurisdiction by the Department of Labor in these instances would defeat
the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with
international practice, from political pressure or control by the host country to the prejudice of member States of
the organization, and to ensure the unhampered the performance of their functions.
16
The grant of immunity to IRRI is clear and unequivocal and an express waiver by its Director-General is the only way by which it
may relinquish or abandon this immunity.
On the matter of waiving its immunity from suit, IRRI had, early on, made its position clear. Through counsel, the Institute wrote
the Labor Arbiter categorically informing him that the Institute will not waive its diplomatic immunity. In the second place,
petitioners reliance on the Memorandum with "Guidelines in handling cases of dismissal of employees in relation to P.D. 1620"
dated July 26, 1983, is misplaced. The Memorandum reads, in part:
Time and again the Institute has reiterated that it will not use its immunity under P.D. 1620 for the purpose of
terminating the services of any of its employees. Despite continuing efforts on the part of IRRI to live up to this
undertaking, there appears to be apprehension in the minds of some IRRI employees. To help allay these fears
the following guidelines will be followed hereafter by the Personnel/Legal Office while handling cases of
dismissed employees.
xxx xxx xxx
2. Notification/manifestation to MOLE or labor arbiter
If and when a dismissed employee files a complaint against the Institute contesting the legality of dismissal, IRRIs answer to the
complaint will:
1. Indicate in the identification of IRRI that it is an international organization operating under the laws of the
Philippines including P.D. 1620. and
2. Base the defense on the merits and facts of the case as well as the legality of the cause or causes for
termination.
3) Waiving immunity under P.D. 1620
If the plaintiffs attorney or the arbiter, asks if IRRI will waive its immunity we may reply that the Institute will be
happy to do so, as it has in the past in the formal manner required thereby reaffirming our commitment to abide
by the laws of the Philippines and our full faith in the integrity and impartially of the legal system.
17
(Emphasis in
this paragraphs ours)
From the last paragraph of the foregoing quotation, it is clear that in cases involving dismissed employees, the Institute may
waive its immunity, signifying that such waiver is discretionary on its part.
We agree with private respondent IRRI that this memorandum cannot, by any stretch of the imagination, be considered the
express waiver by the Director-General. Respondent Commission has quoted IRRIs reply thus:
The 1983 . . . is an internal memo addressed to Personnel and Legal Office and was issued for its guidance in
handling those cases where IRRI opts to waive its immunity. It is not a declaration of waiver for all cases. This is
apparent from the use of the permissive term "may" rather than the mandatory term "shall" in the last paragraph
of the memo. Certainly the memo cannot be considered as the express waiver by the Director General as
contemplated by P.D. 1620, especially since the memo was issued by a former Director-General. At the very
least, the express declaration of the incumbent Director-general supersedes the 1983 memo and should be
accorded greater respect. It would be equally important to point out that the Personnel and Legal Office has been
non-existent since 1988 as a result of major reorganization of the IRRI. Cases of IRRI before DOLE are handled
by an external Legal Counsel as in this particular
case.
18
(Emphasis supplied)
The memorandum, issued by the former Director-General to a now-defunct division of the IRRI, was meant for internal circulation
and not as a pledge of waiver in all cases arising from dismissal of employees. Moreover, the IRRIs letter to the Labor Arbiter in
the case at bench made in 1991 declaring that it has no intention of waiving its immunity, at the very least, supplants any
pronouncement of alleged waiver issued in previous cases.
Petitioners allegation that he was denied due process is unfounded and has no basis.
It is not denied that he was informed of the findings and charges resulting from an investigation conducted of his case in
accordance with IRRI policies and procedures. He had a chance to comment thereon in a Memorandum he submitted to the
Manager of the Human Resource and Development Department. Therefore, he was given proper notice and adequate
opportunity to refute the charges and findings, hereby fulfilling the basic requirements of due process.
Finally, on the issue of referral to the Council of IRRI Employees and Management (CIEM), petitioner similarly fails to persuade
the Court.
The Court, in the Kapisanan ng mga Manggagawa at TAC sa IRRI case,
19
held:
Neither are the employees of IRRI without remedy in case of dispute with management as, in fact, there had been
organized a forum for better management-employee relationship as evidenced by the formation of the Council of
IRRI Employees and Management (CIEM) wherein "both management and employees were and still are
represented for purposes of maintaining mutual and beneficial cooperation between IRRI and its employees." The
existence of this Union factually and tellingly belies the argument that Pres. Decree No. Decree No. 1620, which
grants to IRRI the status, privileges and immunities of an international organization, deprives its employees of the
right to self-organization.
We have earlier concluded that petitioner was not denied due process, and this, notwithstanding the non-referral to the Council of
IRRI Employees and Management. Private respondent correctly pointed out that petitioner, having opted not to seek the help of
the CIEM Grievance Committee, prepared his answer by his own self.
20
He cannot now fault the Institute for not referring his case
to the CIEM.
IN VIEW OF THE FOREGOING, the petition for certiorari is DISMISSED. No costs.
SO ORDERED.
Feliciano, Melo and Vitug, JJ., concur.
Francisco, J., is on leave.
Footnotes
1 Rollo, p. 83.
2 Rollo, pp. 84-85.
3 Rollo, p. 86.
4 Rollo, p. 90.
5 "Granting to the International Rice Research Institute (IRRI) the Status, Prerogatives, Privileges and Immunities
of an International Organization."
6 Letter to Hon. Numeriano D. Villena, dated January 2, 1991. Rollo, p. 92.
7 Rollo, p. 94.
8 Rollo, p. 99.
9 Rollo, p. 114.
10 Decision dated March 20, 1992; Penned by Commissioner Ireneo B. Bernardo, with Presiding Commissioner
Lourdes C. Javier and Commissioner Rogelio I. Rayala concurring. Rollo, p. 72.
11 Memorandum dated July 26, 1983, from the Director General to the Personnel and Legal OfficeRollo, at Rollo,
p. 47; Rollo, p. 31.
12 G.R. No. 85750 and G.R. No. 89331, September 28, 1990, 190 SCRA 130.
13 Supra at pp. 139-140.
14 G.R. No. L-35131, November 29, 1972, 48 SCRA 242.
15 190 SCRA 140.
16 Supra, p. 143.
17 Rollo, p. 47.
18 Rollo, p. 77.
19 G.R. No. 89331, September 28, 1990, 190 SCRA 130.
20 Rollo, p. 69.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. Nos. 97468-70 September 2, 1993
SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER represented by its Chief, DR. FLOR J.
LACANILAO, petitioner,
vs.
DANILO ACOSTA in his capacity as Labor Arbiter of the National Labor Relations Commission, Regional
Arbitration, Branch VI, CORAZON CANTO, DAN BALIAO, ELIZABETH SUPETRAN, CARMELITA FERRER,
CATHRYN CONTRADOR, and DORIC VELOSO, respondents.
Hector P. Teodosio for petitioner.
Cirilo Ganzon, Jr. for private respondents.
VITUG, J .:
This is an original petition for certiorari and prohibition, with a prayer for the issuance of a restraining order, to set
aside the order of respondent labor arbiter, dated 20 September 1990, denying herein petitioners motion to dismiss
the cases subject matter of the petition for lack of jurisdiction.
Two labor cases, docketed as RAB Case No. VI- 0156-86 and RAB case No. VI - 0214-86, were filed by the herein
private respondents against the petitioner, Southeast Asian Fisheries Development Center (SEAFDEC), before the
National Labor Relations Commission (NLRC), Regional Arbitration Branch, Iloilo City. In these cases, the private
respondents claim having been wrongfully terminated from their employment by the petitioner.
On 22 August 1990, the petitioner, contending to be an international inter-government organization, composed of
various Southeast Asian countries, filed a Motion to Dismiss, challenging the jurisdiction of the public respondent in
taking cognizance of the above cases.
On 20 September 1990, the public respondent issued the assailed order denying the Motion to Dismiss. In due
course, a Motion for Reconsideration was interposed but the same, in an order, dated 07 January 1991, was
likewise denied.
Hence, the instant petition. This Court, on 20 March 1991, issued the temporary restraining order prayed for.
The private respondents, as well as respondent labor arbiter, allege that the petitioner is not immune from suit and
assuming that if, indeed, it is an international organization, it has, however, impliedly, if not expressly, waived its
immunity by belatedly raising the issue of jurisdiction.
The Solicitor General, on his part, filed a Manifestation and Motion, which the Court granted, praying that he be
excused from filing his comment for respondent Labor Arbiter, he not being in agreement with the latters position on
this matter.
On 30 March 1992, this Court dismissed the instant petition in a resolution which reads:
. . . Considering the allegations, issues and arguments adduced in the petition for certiorari as
well as the separate comments thereon of the public and private respondents, and the consolidated
reply thereto of the petitioner, the Court RESOLVED to dismiss the petition for failure to sufficiently
show that the questioned judgment is tainted with grave abuse of discretion. The temporary
restraining order issued on March 20, 1991 is hereby LIFTED effective immediately.
In time, the petitioner moved for a reconsideration, arguing that the ground for its seeking the allowance of the
petition is the labor arbiters lack of jurisdiction over the dispute.
The court is now asked to rule upon the motion for reconsideration.
We rule for the petitioner.
It is beyond question that petitioner SEAFDEC is an international agency enjoying diplomatic immunity. This, we
have already held in Southeast Asian Fisheries Development Center-Aquaculture Department vs. National Labor
Relations Commission, G.R. No. 86773, 206 SCRA 283/1992; see also Lacanilao v. de Leon, G.R. No. 76532, 147
SCRA, 286/1987/, where we
said
Petitioner Southeast Asian Fisheries Development Center-Aquaculture Department (SEAFDEC-
AQD) is an international agency beyond the jurisdiction of public respondent NLRC.
It was established by the Governments of Burma, Kingdom of Cambodia, Republic of Indonesia,
Japan, Kingdom of Laos, Malaysia, Republic of the Philippines, Republic of Singapore, Kingdom of
Thailand and Republic of Vietnam . . . .
The Republic of the Philippines became a signatory to the Agreement establishing SEAFDEC on
January 16, 1968. Its purpose is as follows:
The purpose of the Center is to contribute to the promotion of the fisheries
development in Southeast Asia by mutual co-operation among the member
governments of the Center, hereinafter called the Members, and through
collaboration with international organizations and governments external to the
Center.
(Agreement Establishing the SEAFDEC, Art. 1; . . .).
SEAFDEC-AQD was organized during the Sixth Council Meeting of SEAFDEC on July 3-7, 1973 in
Kuala Lumpur, Malaysia as one of the principal departments of SEAFDEC. . . . to be established in
Iloilo for the promotion of research in aquaculture. Paragraph 1, Article 6 of the Agreement
establishing mandates:
1. The Council shall be the supreme organ of the Center and all powers of the Center
shall be vested in the Council.
Being an intergovernmental organization, SEAFDEC including its Departments (AQD), enjoys
functional independence and freedom from control of the state in whose territory its office is located.
As Senator Jovito R. Salonga and Former Chief Justice Pedro L. Yap stated in their book, Public
International Law (p. 83,1956 ed.):
Permanent international commissions and administrative bodies have been created
by the agreement of a considerable number of States for a variety of international
purposes, economic or social and mainly non-political. Among the notable instances
are the International Labor Organization, the International Institute of Agriculture, the
International Danube Commission. In so far as they are autonomous and beyond the
control of any one State, they have a distinct juridical personality independent of the
municipal law of the State where they are situated. As such, according to one leading
authority they must be deemed to possess a species of international personality of
their own. (Salonga and Yap, Public International Law, 83 [1956 ed.]
Pursuant to its being a signatory to the Agreement, the Republic of the Philippines agreed to be
represented by one Director in governing SEAFDEC Council (Agreement Establishing SEAFDEC,
Art. 5, Par. 1,. . .), and that its national laws and regulations shall apply only insofar as its
contributions to SEAFDEC of "an agreed amount of money, movable and immovable property and
services necessary for the establishment and operation of the Center" are concerned (Art. 11, ibid).
It expressly waived the application of the Philippine laws on the disbursement of funds of petitioner
SEAFDEC-AQD (Section 2, P.D. No. 292).
The then Minister of Justice likewise opined that Philippine Courts have no jurisdiction over
SEAFDEC-AQD in Opinion No. 139, Series of 1984
4. One of the basic immunities of an international organization is immunity from local jurisdiction, i.e.,
that it is immune from the legal writs and processes issued by the tribunals of the country where it is
found. (See Jenks, Id., pp. 37-44). The obvious reason for this is that the subjection of such an
organization to the authority of the local courts would afford a convenient medium thru which the
host government may interfere in their operations or even influence or control its policies and
decisions of the organization; besides, such objection to local jurisdiction would impair the capacity
of such body to discharge its responsibilities impartially on behalf of its member-states. In the case
at bar, for instance, the entertainment by the National Labor Relations Commission of Mr.
Madambas reinstatement cases would amount to interference by the Philippine Government in the
management decisions of the SEARCA governing board; even worse, it could compromise the
desired impartiality of the organization since it will have to suit its actuations to the requirements of
Philippine law, which may not necessarily coincide with the interests of the other member-states. It is
precisely to forestall these possibilities that in cases where the extent of the immunity is specified in
the enabling instruments of international organizations (jurisdictional immunity, is specified in the
enabling instruments of international organizations), jurisdictional immunity from the host country is
invariably among the first accorded. (See Jenks, Id.; See Bowett. The Law of International
Institutions. pp. 284-285).
At its Sixth Meeting held at Kuala Lumpur, Malaysia, on 3 to 7 July 1973, the SEAFDEC Council approved the
formal establishment of its Aquaculture Department in the province of Iloilo, Philippines, to promote research in
Aquaculture as so expressed in the "Whereas" Clauses of Presidential Decree No. 292 issued on 13 September
1973
1
. Furthermore, Section 2 of the same decree had provided for the autonomous character of SEAFDEC, thus:
. . . .All funds received by the Department shall be receipted and disbursed in accordance with the
Agreement establishing the Southeast Asian Fisheries Development Center and pertinent
resolutions duly approved by the SEAFDEC Council.
As aptly pointed out by Associate Justice Isagani Cruz of this Court
Certain administrative bodies created by agreement among states may be vested with international
personality when two conditions concur, to wit:, that their purposes are mainly non-political and that
they are autonomous, i.e., not subject to the control of any state.
2
Anent the issue of waiver of immunity, suffice it to say at the moment that the petitioner has timely raised the issue
of jurisdiction. While the petitioner did not question the public respondents lack of jurisdiction at the early stages of
the proceedings, it, nevertheless, did so before it rested its case and certainly well before the proceedings thereat
had terminated.
WHEREFORE, our resolution, dated 30 March 1992, dismissing the petition for certiorari, is hereby reconsidered,
and another is entered (a) granting due course to the petition; (b) setting aside the order, dated 20 September 1990,
of the public respondent; and (c) enjoining the public respondent from further proceeding with RAB Case No. VI-
0156-86 and RAB Case No. VI-0214-86. No costs.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
# Footnotes
1 WHEREAS, the Republic of the Philippines, on January 16, 1968, became a signatory to the
Agreement establishing the Southeast Asian Fisheries Development center (SEAFDEC);
WHEREAS, the SEAFDEC council, at its Sixth Meeting held at Kuala Lumpur (Malaysia) on July 3-7,
1973, approved the formal establishment of its Aquaculture Department in the province of Iloilo,
Philippines;
WHEREAS, the SEAFDEC Aquaculture Department is designed to promote research in aquaculture,
especially in the production of prawns and shrimps, undertake the corresponding training programs
for fisheries experts and technicians and disseminate information on fisheries research and
development for SEAFDEC member-countries in Southeast Asia;
WHEREAS, the establishment of the SEAFDEC Aquaculture Department in the Philippines will
directly and immediately stimulate the development of the fisheries industry in the country, as well as
in neighboring nations in Southeast Asia.
2 Isagani Cruz, International Law, 1977 Edition, p. 31.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 134577 November 18, 1998
SEN. MIRIAM DEFENSOR SANTIAGO and SEN. FRANCISCO S. TATAD, petitioners,
vs.
SEN. TEOFISTO T. GUINGONA, JR. and SEN. MARCELO B. FERNAN, respondents.
PANGANIBAN, J .:
The principle of separation of powers ordains that each of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own constitutionally allocated sphere. Constitutional
respect and a becoming regard for she sovereign acts, of a coequal branch prevents this Court from prying into the
internal workings of the Senate. Where no provision of the Constitution or the laws or even the Rules of the Senate
is clearly shown to have been violated, disregarded or overlooked, grave abuse of discretion cannot be imputed to
Senate officials for acts done within their competence and authority. This Court will be neither a tyrant nor a wimp;
rather, it will remain steadfast and judicious in upholding the rule and majesty of the law.
The Case
On July 31, 1998, Senators Miriam Defensor Santiago and Francisco S. Tatad instituted an original petition forquo
warranto under Rule 66, Section 5, Rules of Court, seeking the ouster of Senator Teofisto T. Guingona, Jr. as
minority leader of the Senate and the declaration of Senator Tatad as the rightful minority leader.
On August 4, 1998, the Court, upon receipt of the Petition, required the respondents and the solicitor general "to file
COMMENT thereon within a non-extendible period of fifteen (15) days from notice." On August 25, 1998, both
respondents and the solicitor general submitted their respective Comments. In compliance with a Resolution of the
Court dated September 1, 1998, petitioners filed their Consolidated Reply on September 23, 1998. Noting said
pleading, this Court gave due course to the petition and deemed the controversy submitted for decision, without
need of memoranda, on September 29, 1998.
In the regular course, the regional trial courts and this Court have concurrent jurisdiction
1
to hear and decide petitions
for quo warranto (as well as certiorari, prohibition and mandamus), and a basic deference to the hierarchy of courts impels
a filing of such petitions in the lower tribunals.
2
However, for special and important reasons or for exceptional and
compelling circumstances, as in the present case, this Court has allowed exceptions to this doctrine.
3
In fact, original
petitions for certiorari, prohibition, mandamus and quo warranto assailing acts of legislative officers like the Senate
President
4
and the Speaker of the House
5
have been recognized as exceptions to this rule.
The Facts
The Senate of the Philippines, with Sen. John Henry R. Osmea as presiding officer, convened on July 27, 1998 for
the first regular session of the eleventh Congress. At the time, in terms of party affiliation, the composition of the
Senate was as follows:
6
10 members Laban ng Masang Pilipino (LAMP)
7 members Lakas-National Union of Christian Democrats-United
Muslim Democrats of the Philippines (Lakas-NUCD-
UMDP)
1 member Liberal Party (LP)
1 member Aksyon Demokrasya
1 member Peoples Reform Party (PRP)
1 member Gabay Bayan
2 members Independent

23 total number of senators

7
(The last six members are all classified by petitioners as
"independent".)
On the agenda for the day was the election of officers. Nominated by Sen. Blas F. Ople to the position of Senate
President was Sen. Marcelo B. Fernan. Sen. Francisco S. Tatad was also nominated to the same position by Sen.
Miriam Defenser Santiago. By a vote of 20 to 2,
8
Senator Fernan was declared the duly elected President of the
Senate.
The following were likewise elected: Senator Ople as president pro tempore, and Sen. Franklin M. Drilon as majority
leader.
Senator Tatad thereafter manifested that, with the agreement of Senator Santiago, allegedly the only other member
of the minority, he was assuming the position of minority leader. He explained that those who had voted for Senator
Fernan comprised the "majority," while only those who had voted for him, the losing nominee, belonged to the
"minority."
During the discussion on who should constitute the Senate "minority," Sen. Juan M. Flavier manifested that the
senators belonging to the Lakas-NUCD-UMDP Party numbering seven (7) and, thus, also a minority had
chosen Senator Guingona as the minority leader. No consensus on the matter was arrived at. The following session
day, the debate on the question continued, with Senators Santiago and Tatad delivering privilege speeches. On the
third session day, the Senate met in caucus, but still failed to resolve the issue.
On July 30, 1998, the majority leader informed the body chat he was in receipt of a letter signed by the seven
Lakas-NUCD-UMDP senators,
9
stating that they had elected Senator Guingona as the minority leader. By virtue thereof,
the Senate President formally recognized Senator Guingona as the minority leader of the Senate.
The following day, Senators Santiago and Tatad filed before this Court the subject petition for quo warranto, alleging
in the main that Senator Guingona had been usurping, unlawfully holding and exercising the position of Senate
minority leader, a position that, according to them, rightfully belonged to Senator Tatad.
Issues
From the parties pleadings, the Court formulated the following issues for resolution:
1. Does the Court have jurisdiction over the petition?
2. Was there an actual violation of the Constitution?
3. Was Respondent Guingona usurping, unlawfully holding and exercising the position of Senate
minority leader?
4. Did Respondent Fernan act with grave abuse of discretion in recognizing Respondent Guingona
as the minority leader?
The Courts Ruling
After a close perusal of the pleadings
10
and a careful deliberation on the arguments, pro and con, the Court finds that
no constitutional or legal infirmity or grave abuse of discretion attended the recognition of and the assumption into office
by Respondent Guingona as the Senate minority leader.
First Issue:
The Courts Jurisdiction
Petitioners principally invoke Avelino v. Cuenco 11 in arguing that this Court has jurisdiction to settle the issue of who is the lawful Senate
minority leader. They submit that the definitions of "majority" and "minority" involve an interpretation of the Constitution, specifically Section 16 (1), Article VI
thereof, stating that "[t]he Senate shall elect its President and the House of Representatives its Speaker, by a majority vote of all its respective Members."
Respondents and the solicitor general, in their separate Comments, contend in common that the issue of who is the
lawful Senate minority leader is an internal matter pertaining exclusively to the domain of the legislature, over which
the Court cannot exercise jurisdiction without transgressing the principle of separation of powers. Allegedly, no
constitutional issue is involved, as the fundamental law does not provide for the office of a minority leader in the
Senate. The legislature alone has the full discretion to provide for such office and, in that event, to determine the
procedure of selecting its occupant.
Respondents also maintain that Avelino cannot apply, because there exists no question involving an interpretation
or application of the Constitution, the laws or even the Rules of the Senate; neither are there "peculiar
circumstances" impelling the Court to assume jurisdiction over the petition. The solicitor general adds that there is
not even any legislative practice to support the petitioners theory that a senator who votes for the winning Senate
President is precluded from becoming the minority leader.
To resolve the issue of jurisdiction, this Court carefully reviewed and deliberated on the various important cases
involving this very important and basic question, which it has ruled upon in the past.
The early case Avelino v. Cuenco cautiously tackled the scope of the Courts power of judicial review; that is,
questions involving an interpretation or application of a provision of the Constitution or the law, including the rules of
either house of Congress. Within this scope falls the jurisdiction of the Court over questions on the validity of
legislative or executive acts that are political in nature, whenever the tribunal "finds constitutionally imposed limits on
powers or functions conferred upon political bodies."
12
In the aforementioned case, the Court initially declined to resolve the question of who was the rightful Senate
President, since it was deemed a political controversy falling exclusively within the domain of the Senate. Upon a
motion for reconsideration, however, the Court ultimately assumed jurisdiction (1) "in the light of subsequent events
which justify its intervention;" and (2) because the resolution of the issue hinged on the interpretation of the
constitutional provision on the presence of a quorum to hold a session
13
and therein elect a Senate President.
Justice Feria elucidated in his Concurring Opinion: "[I] concur with the majority that this Court has jurisdiction over
cases like the present . . . so as to establish in this country the judicial supremacy, with the Supreme Court as the
final arbiter, to see that no one branch or agency of the government transcends the Constitution, not only in
justiceable but political questions as well."
14
Justice Perfecto, also concurring, said in part:
Indeed there is no denying that the situation, as obtaining in the upper chamber of Congress, is
highly explosive. It had echoed in the House of Representatives. It has already involved the
President of the Philippines. The situation has created a veritable national crisis, and it is apparent
that solution cannot be expected from any quarter other than this Supreme Court, upon which the
hopes of the people for an effective settlement are pinned.
15
. . . This case raises vital constitutional questions which no one can settle or decide if this Court should
refuse to decide them.
16
. . . The constitutional question of quorum should not be left unanswered.
17
In Taada v. Cueno,
18
this Court endeavored to define political question. And we said that "it refers to those questions
which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with
issues dependent upon the wisdom, not [the] legality, of a particular measure."
19
The Court ruled that the validity of the selection of members of the Senate Electoral Tribunal by the senators was
not a political question. The choice of these members did not depend on the Senates "full discretionary authority,"
but was subject to mandatory constitutional limitations.
20
Thus, the Court held that not only was it clearly within its
jurisdiction to pass upon the validity of the selection proceedings, but it was also its duty to consider and determine the
issue.
In another landmark case, Lansang v. Garcia,
21
Chief Justice Roberto Concepcion wrote that the Court "had authority
to and should inquire into the existence of the factual bases required by the Constitution for the suspension of the
privilege of the writ [of habeas corpus]." This ruling was made in spite of the previous pronouncements in Barcelon v.
Baker
22
andMontenegro v. Castaeda
23
that "the authority to decide whether the exigency has arisen requiring
suspension (of the privilege . . .) belongs to the President and his decision is final and conclusive upon the courts and
upon all other persons." But the Chief Justice cautioned: "the function of the Court is merely to check not to supplant
the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the wisdom of his act."
The eminent Chief Justice aptly explained later in Javellana v. Executive Secretary:
24
The reason why the issue under consideration and other issues of similar character are justiciable,
not political, is plain and simple. One of the principal bases of the non-justiciability of so-called
political questions is the principle of separation of powers characteristic of the presidential system
of government the functions of which are classified or divided, by reason of their nature, into three
(3) categories, namely, 1) those involving the making of laws, which are allocated to the legislative
department; 2) those concerning mainly with the enforcement of such laws and of judicial decisions
applying and/or interpreting the same, which belong to the executive department; and 3) those
dealing with the settlement of disputes, controversies or conflicts involving rights, duties or
prerogatives that are legally demandable and enforceable, which are apportioned to courts of justice.
Within its own sphere but only within such sphere each department is supreme and
independent of the others, and each is devoid of authority not only to encroach upon the powers or
field of action assigned to any of the other departments, but also to inquire into or pass upon the
advisability orwisdom of the acts performed, measures taken or decisions made by the other
departments provided that such acts, measures or decisions are within the area allocated thereto
by the Constitution.
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue of
whether or not the prescribed qualifications or conditions have been met, or the limitations respected
is justiciable or non-political, the crux of the problem being one of legality or validity of the contested
act, not its wisdom. Otherwise, said qualifications, conditions or limitations particularly those
prescribed by the Constitution would be set at naught. What is more, the judicial inquiry into such
issue and the settlement thereof are the main functions of the courts of justice under the presidential
form of government adopted in our 1935 Constitution, and the system of checks and balances, one
of its basic predicates. As a consequence, we have neither the authority nor the discretion to decline
passing upon said issue, but are under the ineluctable obligation made particularly more exacting
and peremptory by our oath, as members of the highest Court of the land, to support and defend the
Constitution to settle it. This explains why, in Miller v. Johnson [92 Ky. 589, 18 SW 522, 523], it
was held that courts have a "duty, rather than a power," to determine whether another branch of the
government has "kept within constitutional limits."
Unlike our previous constitutions, the 1987 Constitution is explicit in defining the scope of judicial power. The
present Constitution now fortifies the authority of the courts to determine in an appropriate action the validity of the
acts of the political departments. It speaks of judicial prerogative in terms of duty, viz.:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
25
This express definition has resulted in clearer and more resolute pronouncements of the Court. Daza v.
Singson,
26
Coseteng v. Mitra, Jr.
27
and Guingona Jr. v. Gonzales
28
similarly resolved issues assailing the acts of the
leaders of both houses of Congress in apportioning among political parties the seats to which each chamber was entitled
in the Commission on Appointments. The Court held that the issue was justiciable, "even if the question were political in
nature," since it involved "the legality, not the wisdom, of the manner of filling the Commission on Appointments as
prescribed by [Section 18, Article VI of] the Constitution."
The same question of jurisdiction was raised in Taada v. Angara,
29
wherein the petitioners sought to nullify the
Senates concurrence in the ratification of the World Trade Organization (WTO) Agreement. The Court ruled: "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 Court en banc unanimously stressed that in taking jurisdiction over
petitions questioning, an act of the political departments of government, it will not review the wisdom, merits or propriety of
such action, and will strike it down only on either of two grounds: (1) unconstitutionality or illegality and (2) grave abuse of
discretion.
Earlier in Co v. Electoral Tribunal of the House of Representatives
30
(HRET), the Court refused to reverse a decision
of the HRET, in the absence of a showing that said tribunal had committed grave abuse of discretion amounting to lack of
jurisdiction. The Court ruled that full authority had been conferred upon the electoral tribunals of the House of
Representatives and of the Senate as sole judges of all contests relating to the election, the returns, and the qualifications
of their respective members. Such jurisdiction is original and exclusive.
31
The Court may inquire into a decision or
resolution of said tribunals only if such "decision or resolution was rendered without or in excess of jurisdiction, or with
grave abuse of discretion"
32
Recently, the Court, in Arroyo v. De Venecia,
33
was asked to reexamine the enrolled bill doctrine and to look beyond
the certification of the Speaker of the House of Representatives that the bill, which was later enacted as Republic Act
8240, was properly approved by the legislative body. Petitioners claimed that certain procedural rules of the House had
been breached in the passage of the bill. They averred further that a violation of the constitutionally mandated House
rules was a violation of the Constitution itself.
The Court, however, dismissed the petition, because the matter complained of concerned the internal procedures of
the House, with which the Court had no concern. It enucleated:
34
It would-be an unwarranted invasion of the prerogative of a coequal department for this Court either
to set aside a legislative action as void because the Court thinks the House has disregarded its own
rules of procedure, or to allow those defeated in the political arena to seek a rematch in the judicial
forum when petitioners can find their remedy in that department itself. The Court has not been
invested with a roving commission to inquire into complaints, real or imagined, of legislative
skullduggery. It would be acting in excess of its power and would itself be guilty of grave abuse of
discretion were it to do so. . . . In the absence of anything to the contrary, the Court must assume
that Congress or any House thereof acted in the good faith belief that its conduct was permitted by
its rules, and deference rather than disrespect is due the judgment of that body.
In the instant controversy, the petitioners one of whom is Senator Santiago, a well-known constitutionalist try
to hew closely to these jurisprudential parameters. They claim that Section 16 (1), Article VI of the constitution, has
not been observed in the selection of the Senate minority leader. They also invoke the Courts "expanded" judicial
power "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction" on the part of respondents.
Dissenting in part, Mr. Justice Vicente V. Mendoza submits that the Court has no jurisdiction over the petition. Well-
settled is the doctrine, however, that jurisdiction over the subject matter of a case is determined by the allegations of
the complaint or petition, regardless of whether the plaintiff or petitioner is entitled to the relief asserted.
35
In light of
the aforesaid allegations of petitioners, it is clear that this Court has jurisdiction over the petition. It is well within the power
and jurisdiction of the Court to inquire whether indeed the Senate or its officials committed a violation of the Constitution
or gravely abused their discretion in the exercise of their functions and prerogatives.
Second Issue:
Violation of the Constitution
Having assumed jurisdiction over the petition, we now go to the next crucial question: In recognizing Respondent
Guingona as the Senate minority leader, did the Senate or its officials, particularly Senate President Fernan, violate
the Constitution or the laws?
Petitioners answer the above question in the affirmative. They contend that the constitutional provision requiring the
election of the Senate President "by majority vote of all members" carries with it a judicial duty to determine the
concepts of "majority" and "minority," as well as who may elect a minority leader. They argue that "majority" in the
aforequoted constitutional provision refers to that group of senators who (1) voted for the winning Senate President
and (2) accepted committee chairmanships. Accordingly, those who voted for the losing nominee and accepted no
such chairmanships comprise the minority, to whom the right to determine the minority leader belongs. As a result,
petitioners assert, Respondent Guingona cannot be the legitimate minority leader, since he voted for Respondent
Fernan as Senate President. Furthermore, the members of the Lakas-NUCD-UMDP cannot choose the minority
leader, because they did not belong to the minority, having voted for Fernan and accepted committee
chairmanships.
We believe, however, that the interpretation proposed by petitioners finds no clear support from the Constitution, the
laws, the Rules of the Senate or even from practices of the Upper House.
The term "majority" has been judicially defined a number of times. When referring to a certain number out of a total
or aggregate, it simply "means the number greater than half or more than half of any total."
36
The plain and
unambiguous words of the subject constitutional clause simply mean that the Senate President must obtain the votes of
more than one half of all the senators. Not by any construal does it thereby delineate who comprise the "majority," much
less the "minority," in the said body. And there is no showing that the framers of our Constitution had in mind other than
the usual meanings of these terms.
In effect, while the Constitution mandates that the President of the Senate must be elected by a number constituting
more than one half of all the members thereof, it does not provide that the members who will not vote for him
shall ipso facto constitute the "minority," who could thereby elect the minority leader. Verily, no law or regulation
states that the defeated candidate shall automatically become the minority leader.
The Comment
37
of Respondent Guingona furnishes some relevant precedents, which were not contested in petitioners
Reply. During the eighth Congress, which was the first to convene after the ratification of the 1987 Constitution, the
nomination of Sen. Jovito R Salonga as Senate President was seconded by a member of the minority, then Sen. Joseph
E. Estrada.
38
During the ninth regular session, when Sen. Edgardo J. Angara assumed the Senate presidency in 1993, a
consensus was reached to assign committee chairmanships to all senators, including those belonging to the
minority.
39
This practice continued during the tenth Congress, where even the minority leader was allowed to chair a
committee.
40
History would also show that the "majority" in either house of Congress has referred to the political party to
which the most number of lawmakers belonged, while the "minority" normally referred to a party with a lesser number of
members.
Let us go back to the definitions of the terms "majority" and "minority." Majority may also refer to "the group, party, or
faction with the larger number of votes,"
41
not necessarily more than one half. This is sometimes referred to as plurality.
In contrast, minority is "a group, party, or faction with a smaller number of votes or adherents than the
majority."
42
Between two unequal parts or numbers comprising a whole or totality, the greater number would obviously be
the majority while the lesser would be the minority. But where there are more than two unequal groupings, it is not as easy
to say which is the minority entitled to select the leader representing all the minorities. In a government with a multi-party
system such as in the Philippines (as pointed out by petitioners themselves), there could be several minority parties, one
of which has to be indentified by the Comelec as the "dominant minority party" for purposes of the general elections. In
the prevailing composition of the present Senate, members either belong to different political parties or are independent.
No constitutional or statutory provision prescribe which of the many minority groups or the independents or a combination
thereof has the right to select the minority leader.
While the Constitution is explicit on the manner of electing a Senate President and a House Speaker, it is, however,
dead silent on the manner of selecting the other officers in both chambers of Congress. All that the Charter says is
that "[e]ach House shall choose such other officers as it may deem necessary."
43
To our mind, themethod of
choosing who will be such other officers is merely a derivative of the exercise of the prerogative conferred by the
aforequoted constitutional provision. Therefore, such method must be prescribed by the Senate itself, not by this Court.
In this regard, the Constitution vests in each house of Congress the power "to determine the rules of its
proceedings."
44
Pursuant thereto, the Senate formulated and adopted a set of rules to govern its internal
affairs.
45
Pertinent to the instant case are Rules I and II thereof, which provide:
Rule I
ELECTIVE OFFICERS
Sec 1. The Senate shall elect, in the manner hereinafter provided, a President, a President Pro
Tempore, a Secretary, and a Sergeant-at-Arms.
These officers shall take their oath of office before entering into the discharge of their duties.
Rule II
ELECTION OF OFFICER
Sec. 2. The officers of the Senate shall be elected by the majority vote of all its Members. Should
there be more than one candidate for the same office, a nominal vote shall be taken; otherwise, the
elections shall be by viva voce or by resolution.
Notably, the Rules of the Senate do not provide for the positions of majority and minority leaders. Neither is there an
open clause providing specifically for such offices and prescribing the manner of creating them or of choosing the
holders thereof, At any rate, such offices, by tradition and long practice, are actually extant. But, in the absence of
constitutional or statutory guidelines or specific rules, this Court is devoid of any basis upon which to determine the
legality of the acts of the Senate relative thereto. On grounds of respect for the basic concept of separation of
powers, courts may not intervene in the internal affairs of the legislature; it is not within the province of courts to
direct Congress how to do its work.
46
Paraphrasing the words of Justice Florentino P. Feliciano, this Court is of the
opinion that where no specific, operable norms and standards are shown to exist, then the legislature must be given a real
and effective opportunity to fashion and promulgate as well as to implement them, before the courts may intervene.
47
Needless to state, legislative rules, unlike statutory laws, do not have the imprints of permanence and obligatoriness
during their effectivity. In fact, they "are subject to revocation, modification or waiver at the pleasure of the body
adopting them."
48
Being merely matters of procedure, their observance are of no concern to the courts, for said rules
may be waived or disregarded by the legislative body
49
at will, upon the concurrence of a majority.
In view of the foregoing, Congress verily has the power and prerogative to provide for such officers as it may deem.
And it is certainly within its own jurisdiction and discretion to prescribe the parameters for the exercise of this
prerogative. This Court has no authority to interfere and unilaterally intrude into that exclusive realm, without running
afoul of constitutional principles that it is bound to protect and uphold the very duty that justifies the Courts being.
Constitutional respect and a becoming regard for the sovereign acts of a coequal branch prevents this Court from
prying into the internal workings of the Senate. To repeat, this Court will be neither a tyrant nor a wimp; rather, it will
remain steadfast and judicious in upholding the rule and majesty of the law.
To accede, then, to the interpretation of petitioners would practically amount to judicial legislation, a clear breach of
the constitutional doctrine of separation of powers. If for this argument alone, the petition would easily fail.
While no provision of the Constitution or the laws or the rules and even the practice of the Senate was violated, and
while the judiciary is without power to decide matters over which full discretionary authority has been lodged in the
legislative department, this Court may still inquire whether an act of Congress or its officials has been made with
grave abuse of discretion.
50
This is the plain implication of Section 1, Article VIII of the Constitution, which expressly
confers upon the judiciary the power and the duty not only "to settle actual controversies involving rights which are legally
demandable and enforceable," but likewise "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."
Explaining the above-quoted clause, former Chief Justice Concepcion, who was a member of the 1986
Constitutional Commission, said in part:
51
. . . the powers of government are generally considered divided into three branches: the Legislative,
the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the
others. Because of that supremacy[, the] power to determine whether a given law is valid or not is
vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the
government as well as those of its officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its officials has acted without jurisdiction
or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to
excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter
evade the duty to settle matters of this nature, by claiming that such matters constitute a political
question.
With this paradigm, we now examine the two other issues challenging the actions, first, of Respondent Guingona
and, second, of Respondent Fernan.
Third Issue:
Usurpation of Office
Usurpation generally refers to unauthorized arbitrary assumption and exercise of power
52
by one without color of title
or who is not entitled by law thereto.
53
A quo warranto proceeding is the proper legal remedy to determine the right or title
to the contested public office and to oust the holder from its enjoyment.
54
The action may be brought by the solicitor
general or a public prosecutor
55
or any person claiming to be entitled to the public office or position usurped or unlawfully
held or exercised by another.
56
The action shall be brought against the person who allegedly usurped, intruded into or is
unlawfully holding of exercising such office.
57
In order for a quo warranto proceeding to be successful, the person suing must show that he or she has a clearright
to the contested office or to use or exercise the functions of the office allegedly usurped or unlawfully held by the
respondent.
58
In this case, petitioners present no sufficient proof of a clear and indubitable franchise to the office of the
Senate minority leader.
As discussed earlier, the specific norms or standards that may be used in determining who may lawfully occupy the
disputed position has not been laid down by the Constitution, the statutes, or the Senate itself in which the power
has been vested. Absent any clear-cut guideline, in no way can it be said that illegality or irregularity tainted
Respondent Guingonas assumption and exercise of the powers of the office of Senate minority leader.
Furthermore, no grave abuse of discretion has been shown to characterize any of his specific acts as minority
leader.
Fourth Issue:
Fernans Recognition of Guingona
The all-embracing and plenary power and duty of the Court "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" is restricted only by the definition and confines of the term "grave abuse of discretion."
By grave abuse of discretion is meant such capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to
an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason
of passion and hostility.
59
By the above standard, we hold that Respondent Fernan did not gravely abuse his discretion as Senate President in
recognizing Respondent Guingona as the minority leader. Let us recall that the latter belongs to one of the minority
parties in the Senate, the Lakas-NUCD-UMDP. By unanimous resolution of the members of this party that he be the
minority leader, he was recognized as such by the Senate President. Such formal recognition by Respondent
Fernan came only after at least two Senate sessions and a caucus, wherein both sides were liberally allowed to
articulate their standpoints.
Under these circumstances, we believe that the Senate President cannot be accused of "capricious or whimsical
exercise of judgment" or of "an arbitrary and despotic manner by reason of passion or hostility." Where no provision
of the Constitution, the laws or even the rules of the Senate has been clearly shown to have been violated,
disregarded or overlooked, grave abuse of discretion cannot be imputed to Senate officials for acts done within their
competence and authority.
WHEREFORE, for the above reasons, the petition is hereby DISMISSED.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo, Puno, Martinez, Quisumbing and Pardo, JJ., concur.
Romero, J., Please see separate opinion.
Bellosillo, J., No part. Did not take part in deliberation.
Vitug, J., Pls. see separate opinion.
Kapunan, J., I concur with Justice Mendozas concurring and dissenting opinion.
Mendoza, J., Please see concurring and dissenting opinion.
Purisima, J., Join concurring and dissenting opinion of Justice Mendoza.
Separate Opinions
MENDOZA, J ., concurring in the judgment and dissenting in part;
I concur in the judgment of the Court, but I disagree that "[it] has jurisdiction over the petition [in this case] to
determine whether the Senate or its officials committed a violation of the Constitution or gravely abused their
discretion in the exercise of their functions and prerogatives."
1
The Court has no jurisdiction over this case. The question who constitute the minority in the Senate entitled to elect
the minority leader of that chamber is political. It respects the internal affairs of a coequal department of the
government and is thus addressed solely to that august body.
Courts have no power to inquire into the internal organization and business of a house of Congress except as the
question affects the rights of third parties or a specific constitutional limitation is involved.
For this reason this Court has declined to take cognizance of cases involving the discipline of members
2
of the
legislature and the application and interpretation of the rules of procedure of a house.
3
For indeed, these matters pertain
to the internal government of Congress and are within its exclusive jurisdiction.
Dean Sinco has pointed out that the Speaker of the House of Representatives and the President of the Senate are
not state officers. They do not attain these positions by popular vote but only by the vote of their respective
chambers. They receive their mandate as such not from the voters but from their peers in the house. While their
offices are a constitutional creation, nevertheless they are only legislative officers. It is their position as members of
Congress which gives them the status of state officers. As presiding officers of their respective chambers, their
election as well as removal is determined by the vote of the majority of the members of the house to which they
belong.
4
Thus, Art VI, 16(1) of the Constitution provides:
The Senate shall elect its President and the of Representatives its Speaker, by a majority vote of all
its respective Members.
Each House shall choose such other officers as it may deem necessary.
This is likewise true of the "other officers" of each house whose election and removal rest solely within the
prerogative of the members and is no concern of the courts.
Indeed, in those cases in which this Court took cognizance of matters pertaining to the internal government of each
house, infringements of specific constitutional limitations were alleged.
In Avelino v. Cuenco,
5
the question was whether with only 12 senators present there was a quorum for the election of
the Senate President, considering that, of the 24 members, one was in the hospital while another one was abroad. The
case called for an interpretation of Art. VI, 10(2) of the 1935 Constitution which provided that "A majority of each House
shall constitute a quorum to do business. . . ." While initially declining to assume jurisdiction, this Court finally took
cognizance of the matter. As Justice Perfecto, whose separate opinion in support of the assumption of jurisdiction was
one of the reasons which persuaded the Court to intervene in the Senate imbroglio, stated, "Whether there was a quorum
or not in the meeting of twelve Senators . . . is a question that calls for the interpretation, application and enforcement of
an express and specific provision of the Constitution."
6
In his view, "The word quorum is a mathematical word. It has, as
such, a precise and exact mathematical meaning. A majority means more than one-half (1/2)."
7
In Taada v. Cuenco,
8
the question was whether the majority could fill the seats intended for the minority party in the
Senate Electoral Tribunal when there are not enough minority members in the Senate. Again, the question was governed
by a specific provision (Art. VI, 11) of the 1935 charter which provided that the Electoral Tribunals of each house should
be composed of "nine Members, three of whom shall be Justices of the Supreme Court . . . I and the remaining six shall
be Members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House,
three upon the nomination of the party having the largest number of votes and three of the party having the second largest
number of votes therein." There was, therefore, a specific constitutional provision to be applied.
The cases
9
concerning the composition of the Commission on Appointments likewise involved the mere application of a
constitutional provision, specifically Art. VI, 18 of the present Constitution which provides that the Commission shall be
composed of "twelve Senators and twelve Members of the House of Representatives, elected by each House on the basis
of proportional representation from the political parties and parties or organizations registered under the party-list system
represented therein." Undoubtedly, the Court had jurisdiction over the cases.
On the other hand, as long as the proportional representation of political parties and organizations is observed the
Court has held itself to be without jurisdiction over the choice of nominees. In Cabili v. Francisco,
10
it declined to take
cognizance of a quo warranto suit seeking to annul the recomposition of the Senate representation in the Commission
and to reinstate a particular senator after satisfying itself that such recomposition of the Senate representation was not a
"departure from the constitution mandate requiring proportional representation of the political organizations in the
Commission on Appointments."
It is true that in Cunanan v. Tan
11
this Court took cognizance of the case which involved the reorganization of the
Commission as a result of the realignment of political forces in the House of Representatives and the formation of a
temporary alliance. But the Courts decision was justified because the case actually involved the right of a third party
whose nomination by the President had been rejected by the reorganized Commission. As held in Pacete v. The
Secretary of the Commission on Appointments.
12
where the construction to be given to a rule affects persons other than
members of the legislative body, the question presented is judicial in character.
In contrast to the specific constitutional limitations involved in the foregoing cases, beyond providing that the Senate
and the House of Representatives shall elect a President and Speaker, respectively, and such other officers as each
house shall determine "by a majority vote of all [their] respective Members," the Constitution leaves everything else
to each house of Congress. Such matters are political and are left solely to the judgment of the legislative
department of the government.
This case involves neither an infringement of specific constitutional limitations nor a violation of the rights of a party
not a member of Congress. This Court has jurisdiction over this case only in the sense that determining whether the
question involved is reserved to Congress is itself an exercise of jurisdiction in the same way that a court which
dismisses a case for lack of jurisdiction must in a narrow sense have jurisdiction since it cannot dismiss the case if it
were otherwise. The determination of whether the question involved is justiciable or not is in itself a process of
constitutional interpretation. This is the great lesson of Marbury v. Madison
13
in which the U.S. Supreme Court, while
affirming its power of review, in the end held itself to be without jurisdiction because the Judiciary Act of 1789 granting it
jurisdiction over that case was unconstitutional. In other words, a court doing a Marbury v. Madison has no jurisdiction
except to declare itself without jurisdiction over the case.
I vote to dismiss the petition in this case for lack of jurisdiction.
ROMERO, J ., separate opinion;
"Loyalty to petrified opinion never yet broke a chain or freed a human soul."
These words vividly inscribed just beneath Mark Twains bust at the Hall of Fame veritably speaks about the
creativity and dynamism which ought to characterize our perspective of things. It instructs us to broaden our horizon
that we may not be held captive by ignorance. Free and robust thinking is the imperative.
But there are times when one has to render fealty to certain fundamental precepts and I believe that this occasion
presents an opportunity to do so. Thus, as I join the majority and cast my vote today for the denial of the instant
petition, may I just be allowed to reiterate jurisprudential postulates which I have long embraced, not for the sake of
"loyalty to petrified opinion" but to stress consistency in doctrine in the hope that all future disputes of this nature
may be similarly resolved in this manner.
This is not actually the first time that the Court has been invited to resolve a matter originating from the internal
processes undertaken by a co-equal branch of government, more particularly the Senate in this case. Earlier, in the
landmark case of Tolentino v. Secretary of Finance, et al.,
1
we were confronted, among other things, by the issue of
whether a significant tax measure namely, Republic Act. No. 7716 (Expanded Value-Added Tax Law), went through the
legislative mill in keeping with the constitutionally-mandated procedure for the passage of bills. Speaking through Justice
Vicente V. Mendoza, the majority upheld the tax measures validity, relying on the enrolled bill theory and the view that the
Court is not the appropriate forum to enforce internal legislative rules supposedly violated when the bill was being passed
by Congress. I took a different view, however, from the majority because of what I felt was a sweeping reliance on said
doctrines without giving due regard to the peculiar facts of the case. I underscored that these principles may not be
applied where the internal legislative rules would breach the Constitution which this Court has a solemn duty to uphold. It
was my position then that the introduction of several provisions in the Bicameral Committee Report violated the
constitutional proscription against any amendment to a bill upon the last reading thereof and which this Court, in the
exercise of its judicial power, can properly inquire into without running afoul of the principle of separation of powers.
Last year,
2
Arroyo, et al. v. de Venecia, et al.
3
presented an opportunity for me to clarify my position further. In that case,
Congressman Joker Arroyo filed a petition before the Court complaining that during a session by the House of
Representatives, he was effectively prevented from raising the question of quorum which to him tainted the validity of
Republic Act No. 8240, or the so-called "sin taxes" law. The Court, speaking again through Justice Mendoza, dismissed
Mr. Arroyos petition, arguing in the main that courts are denied the power to inquire into allegations that, in enacting a
law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a
constitutional provision or the rights of private individuals. Concurring with the majority opinion, I discerned a need to
explain my position then because of possible misinterpretation. I was very emphatic that I did not abandon my position
in Tolentino, the facts as presented in Arroyo being radically different from the former. In keeping with my view that judicial
review is permissible only to uphold the Constitution, I pointed out that the legislative rules allegedly violated were purely
internal and had no direct or reasonable nexus to the requirements and proscriptions of the Constitution in the passage of
a bill which would otherwise warrant the Courts intervention.
In the instant case, at the risk of being repetitious, I again take a similar stand as the ones I made in the two cited
cases.
Although this case involves the question of who is the rightful occupant of a Senate "office" and does not deal with
the passage of a bill or the observance of internal rules for the Senates conduct of its business, the same ground as
I previously invoked may justify the Courts refusal to pry into the procedures of the Senate. There is to me no
constitutional breach which has been made and, ergo, there is nothing for this Court to uphold. The interpretation
placed by petitioners on Section 16 (1), Article VI of the 1987 Constitution clearly does not find support in the text
thereof. Expressium facit cessare tacitum. What is expressed puts an end to that which is implied. The majority vote
required for the election of a Senate President and a Speaker of the House of Representatives speaks only of such
number or quantity of votes for an aspirant to be lawfully elected as such. There is here no declaration that by so
electing, each of the two Houses of Congress is thereby divided into camps called the "majority" and the "minority."
In fact, the "offices" of Majority Floor Leader and Minority Floor Leader are not explicitly provided for as
constitutional offices. As pointed out by my esteemed colleague, Justice Artemio V. Panganiban, who penned the
herein majority opinion, even on the theory that under paragraph 2, Section 16 (1) of Article VI of the Constitution,
each House shall choose such other officers as it may deem necessary, still "the method of choosing who will be
such officers is merely a derivative of the exercise of the prerogative conferred by the aforequoted constitutional
provision." With the prerogative being, therefore, bestowed upon the Senate, whatever differences the parties may
have against each other must be settled in their own turf and the Court, conscious as it is of its constitutionally-
delineated powers, will not take a perilous move to overstep the same.
VITUG, J ., separate opinion;
The 1987 Constitution, like the counterpart 1935 and 1973 Constitutions, has continued to be implicit in its
recognition of the time-honored precept of separation of powers which enjoins upon each of the three co-equal and
independent, albeit coordinate, branches of the government the Legislative, the Executive and the Judiciary
proper acknowledgment and respect for each other. The Supreme Court, said to be holding neither the "purse" (held
by Congress) nor the "sword" (held by the Executive) but serving as the balance wheel in the State governance,
functions both as the tribunal of last resort and as the Constitutional Court of the nation.
1
Peculiar, however, to the
present Constitution, specifically under Article VII, Section 1, thereof, is the extended jurisdiction of judicial power that now
explicitly allows the determination of "whether or not there has been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government."
2
This expanded concept of judicial
power seems to have been dictated by the martial law experience and to be an immediate reaction to the abuse in the
frequent recourse to the political question doctrine that in no small measure has emasculated the Court. The term
"political question," in this context, refers to matters which, under the Constitution, are to be decided by the people in their
sovereign capacity or in regard to which discretionary authority has been delegated to the legislative or executive branch
of the government.
The Supreme Court, nevertheless, should not be thought of as having been tasked with the awesome responsibility
of overseeing the entire bureaucracy. I find it here opportune to reiterate what I have stated inTolentino vs.
Secretary of Finance,
3
viz:
I cannot yet concede to the novel theory, so challengingly provocative as it might be, that under the
1987 Constitution the Court may now at good liberty intrude, in the guise of the peoples imprimatur,
into every affair of government. What significance can still then remain, I ask, of the time honored
and widely acclaimed principle of separation of powers if, at every turn, the Court allows itself to
pass upon at will the disposition of a co-equal, independent and coordinate branch in our system of
government. I dread to think of the so varied uncertainties that such an undue interference can lead
to. The respect for long standing doctrines in our jurisprudence, nourished through time, is one of
maturity, not timidity, of stability rather than quiescence.
Pervasive and limitless, such as it, may seem to be, judicial power still succumbs to the paramount doctrine
of separation of powers. Congress is the branch of government, composed of the representatives of the
people, that lays down the policies of government and provides the direction that the nation must take. The
Executive carries out that mandate. Certainly, the Court will not negate that which is done by these, co-equal
and co-ordinate branches merely because of a perceived case of grave abuse of discretion on their part,
clearly too relative a phrase to be its own sentinel against misuse, even as it will not hesitate to wield the
power if that abuse becomes all too clear. The exercise of judicial statesmanship, not judicial tyranny, is
what has been envisioned by and institutionalized in the 1987 Constitution.
There is no harnbook rule by which grave abuse of discretion may be determined. The provision was evidently
couched in general terms to make it malleable to judicial interpretation in the light of any contemporary or emerging
millieu. In its normal concept, the term has been said to imply capricious and whimsical exercise of judgment,
amounting, to lack or excess of jurisdiction, or at the power is exercised in an arbitrary or despotic manner such as
by reason of passion or personal hostility. When the question, however, pertains to an affair internal to either of
Congress or the Executive, I would subscribe to the dictum, somewhat made implicit in my understanding of Arroyo
vs. De Venecia,
4
that unless an infringement of any specific Constitutional proscription thereby inheres the Court will not
deign substitute its own judgment over that of any of the other two branches of government. Verily, in this situation, it is an
impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial
intervention.
In the instant settings, I find insufficient indication to have the case hew to the above rule.
Accordingly, I vote for the dismissal of the petition.
Separate Opinions
MENDOZA, J ., concurring in the judgment and dissenting in part;
I concur in the judgment of the Court, but I disagree that "[it] has jurisdiction over the petition [in this case] to
determine whether the Senate or its officials committed a violation of the Constitution or gravely abused their
discretion in the exercise of their functions and prerogatives."
1
The Court has no jurisdiction over this case. The question who constitute the minority in the Senate entitled to elect
the minority leader of that chamber is political. It respects the internal affairs of a coequal department of the
government and is thus addressed solely to that august body.
Courts have no power to inquire into the internal organization and business of a house of Congress except as the
question affects the rights of third parties or a specific constitutional limitation is involved.
For this reason this Court has declined to take cognizance of cases involving the discipline of members
2
of the
legislature and the application and interpretation of the rules of procedure of a house.
3
For indeed, these matters pertain
to the internal government of Congress and are within its exclusive jurisdiction.
Dean Sinco has pointed out that the Speaker of the House of Representatives and the President of the Senate are
not state officers. They do not attain these positions by popular vote but only by the vote of their respective
chambers. They receive their mandate as such not from the voters but from their peers in the house. While their
offices are a constitutional creation, nevertheless they are only legislative officers. It is their position as members of
Congress which gives them the status of state officers. As presiding officers of their respective chambers, their
election as well as removal is determined by the vote of the majority of the members of the house to which they
belong.
4
Thus, Art VI, 16(1) of the Constitution provides:
The Senate shall elect its President and the of Representatives its Speaker, by a majority vote of all
its respective Members.
Each House shall choose such other officers as it may deem necessary.
This is likewise true of the "other officers" of each house whose election and removal rest solely within the
prerogative of the members and is no concern of the courts.
Indeed, in those cases in which this Court took cognizance of matters pertaining to the internal government of each
house, infringements of specific constitutional limitations were alleged.
In Avelino v. Cuenco,
5
the question was whether with only 12 senators present there was a quorum for the election of
the Senate President, considering that, of the 24 members, one was in the hospital while another one was abroad. The
case called for an interpretation of Art. VI, 10(2) of the 1935 Constitution which provided that "A majority of each House
shall constitute a quorum to do business. . . ." While initially declining to assume jurisdiction, this Court finally took
cognizance of the matter. As Justice Perfecto, whose separate opinion in support of the assumption of jurisdiction was
one of the reasons which persuaded the Court to intervene in the Senate imbroglio, stated, "Whether there was a quorum
or not in the meeting of twelve Senators . . . is a question that calls for the interpretation, application and enforcement of
an express and specific provision of the Constitution."
6
In his view, "The word quorum is a mathematical word. It has, as
such, a precise and exact mathematical meaning. A majority means more than one-half (1/2)."
7
In Taada v. Cuenco,
8
the question was whether the majority could fill the seats intended for the minority party in the
Senate Electoral Tribunal when there are not enough minority members in the Senate. Again, the question was governed
by a specific provision (Art. VI, 11) of the 1935 charter which provided that the Electoral Tribunals of each house should
be composed of "nine Members, three of whom shall be Justices of the Supreme Court . . . I and the remaining six shall
be Members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House,
three upon the nomination of the party having the largest number of votes and three of the party having the second largest
number of votes therein." There was, therefore, a specific constitutional provision to be applied.
The cases
9
concerning the composition of the Commission on Appointments likewise involved the mere application of a
constitutional provision, specifically Art. VI, 18 of the present Constitution which provides that the Commission shall be
composed of "twelve Senators and twelve Members of the House of Representatives, elected by each House on the basis
of proportional representation from the political parties and parties or organizations registered under the party-list system
represented therein." Undoubtedly, the Court had jurisdiction over the cases.
On the other hand, as long as the proportional representation of political parties and organizations is observed the
Court has held itself to be without jurisdiction over the choice of nominees. In Cabili v. Francisco,
10
it declined to take
cognizance of a quo warranto suit seeking to annul the recomposition of the Senate representation in the Commission
and to reinstate a particular senator after satisfying itself that such recomposition of the Senate representation was not a
"departure from the constitution mandate requiring proportional representation of the political organizations in the
Commission on Appointments."
It is true that in Cunanan v. Tan
11
this Court took cognizance of the case which involved the reorganization of the
Commission as a result of the realignment of political forces in the House of Representatives and the formation of a
temporary alliance. But the Courts decision was justified because the case actually involved the right of a third party
whose nomination by the President had been rejected by the reorganized Commission. As held in Pacete v. The
Secretary of the Commission on Appointments.
12
where the construction to be given to a rule affects persons other than
members of the legislative body, the question presented is judicial in character.
In contrast to the specific constitutional limitations involved in the foregoing cases, beyond providing that the Senate
and the House of Representatives shall elect a President and Speaker, respectively, and such other officers as each
house shall determine "by a majority vote of all [their] respective Members," the Constitution leaves everything else
to each house of Congress. Such matters are political and are left solely to the judgment of the legislative
department of the government.
This case involves neither an infringement of specific constitutional limitations nor a violation of the rights of a party
not a member of Congress. This Court has jurisdiction over this case only in the sense that determining whether the
question involved is reserved to Congress is itself an exercise of jurisdiction in the same way that a court which
dismisses a case for lack of jurisdiction must in a narrow sense have jurisdiction since it cannot dismiss the case if it
were otherwise. The determination of whether the question involved is justiciable or not is in itself a process of
constitutional interpretation. This is the great lesson of Marbury v. Madison
13
in which the U.S. Supreme Court, while
affirming its power of review, in the end held itself to be without jurisdiction because the Judiciary Act of 1789 granting it
jurisdiction over that case was unconstitutional. In other words, a court doing a Marbury v. Madison has no jurisdiction
except to declare itself without jurisdiction over the case.
I vote to dismiss the petition in this case for lack of jurisdiction.
ROMERO, J ., separate opinion;
"Loyalty to petrified opinion never yet broke a chain or freed a human soul."
These words vividly inscribed just beneath Mark Twains bust at the Hall of Fame veritably speaks about the
creativity and dynamism which ought to characterize our perspective of things. It instructs us to broaden our horizon
that we may not be held captive by ignorance. Free and robust thinking is the imperative.
But there are times when one has to render fealty to certain fundamental precepts and I believe that this occasion
presents an opportunity to do so. Thus, as I join the majority and cast my vote today for the denial of the instant
petition, may I just be allowed to reiterate jurisprudential postulates which I have long embraced, not for the sake of
"loyalty to petrified opinion" but to stress consistency in doctrine in the hope that all future disputes of this nature
may be similarly resolved in this manner.
This is not actually the first time that the Court has been invited to resolve a matter originating from the internal
processes undertaken by a co-equal branch of government, more particularly the Senate in this case. Earlier, in the
landmark case of Tolentino v. Secretary of Finance, et al.,
1
we were confronted, among other things, by the issue of
whether a significant tax measure namely, Republic Act. No. 7716 (Expanded Value-Added Tax Law), went through the
legislative mill in keeping with the constitutionally-mandated procedure for the passage of bills. Speaking through Justice
Vicente V. Mendoza, the majority upheld the tax measures validity, relying on the enrolled bill theory and the view that the
Court is not the appropriate forum to enforce internal legislative rules supposedly violated when the bill was being passed
by Congress. I took a different view, however, from the majority because of what I felt was a sweeping reliance on said
doctrines without giving due regard to the peculiar facts of the case. I underscored that these principles may not be
applied where the internal legislative rules would breach the Constitution which this Court has a solemn duty to uphold. It
was my position then that the introduction of several provisions in the Bicameral Committee Report violated the
constitutional proscription against any amendment to a bill upon the last reading thereof and which this Court, in the
exercise of its judicial power, can properly inquire into without running afoul of the principle of separation of powers.
Last year,
2
Arroyo, et al. v. de Venecia, et al.
3
presented an opportunity for me to clarify my position further. In that case,
Congressman Joker Arroyo filed a petition before the Court complaining that during a session by the House of
Representatives, he was effectively prevented from raising the question of quorum which to him tainted the validity of
Republic Act No. 8240, or the so-called "sin taxes" law. The Court, speaking again through Justice Mendoza, dismissed
Mr. Arroyos petition, arguing in the main that courts are denied the power to inquire into allegations that, in enacting a
law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a
constitutional provision or the rights of private individuals. Concurring with the majority opinion, I discerned a need to
explain my position then because of possible misinterpretation. I was very emphatic that I did not abandon my position
in Tolentino, the facts as presented in Arroyo being radically different from the former. In keeping with my view that judicial
review is permissible only to uphold the Constitution, I pointed out that the legislative rules allegedly violated were purely
internal and had no direct or reasonable nexus to the requirements and proscriptions of the Constitution in the passage of
a bill which would otherwise warrant the Courts intervention.
In the instant case, at the risk of being repetitious, I again take a similar stand as the ones I made in the two cited
cases.
Although this case involves the question of who is the rightful occupant of a Senate "office" and does not deal with
the passage of a bill or the observance of internal rules for the Senates conduct of its business, the same ground as
I previously invoked may justify the Courts refusal to pry into the procedures of the Senate. There is to me no
constitutional breach which has been made and, ergo, there is nothing for this Court to uphold. The interpretation
placed by petitioners on Section 16 (1), Article VI of the 1987 Constitution clearly does not find support in the text
thereof. Expressium facit cessare tacitum. What is expressed puts an end to that which is implied. The majority vote
required for the election of a Senate President and a Speaker of the House of Representatives speaks only of such
number or quantity of votes for an aspirant to be lawfully elected as such. There is here no declaration that by so
electing, each of the two Houses of Congress is thereby divided into camps called the "majority" and the "minority."
In fact, the "offices" of Majority Floor Leader and Minority Floor Leader are not explicitly provided for as
constitutional offices. As pointed out by my esteemed colleague, Justice Artemio V. Panganiban, who penned the
herein majority opinion, even on the theory that under paragraph 2, Section 16 (1) of Article VI of the Constitution,
each House shall choose such other officers as it may deem necessary, still "the method of choosing who will be
such officers is merely a derivative of the exercise of the prerogative conferred by the aforequoted constitutional
provision." With the prerogative being, therefore, bestowed upon the Senate, whatever differences the parties may
have against each other must be settled in their own turf and the Court, conscious as it is of its constitutionally-
delineated powers, will not take a perilous move to overstep the same.
VITUG, J ., separate opinion;
The 1987 Constitution, like the counterpart 1935 and 1973 Constitutions, has continued to be implicit in its
recognition of the time-honored precept of separation of powers which enjoins upon each of the three co-equal and
independent, albeit coordinate, branches of the government the Legislative, the Executive and the Judiciary
proper acknowledgment and respect for each other. The Supreme Court, said to be holding neither the "purse" (held
by Congress) nor the "sword" (held by the Executive) but serving as the balance wheel in the State governance,
functions both as the tribunal of last resort and as the Constitutional Court of the nation.
1
Peculiar, however, to the
present Constitution, specifically under Article VII, Section 1, thereof, is the extended jurisdiction of judicial power that now
explicitly allows the determination of "whether or not there has been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government."
2
This expanded concept of judicial
power seems to have been dictated by the martial law experience and to be an immediate reaction to the abuse in the
frequent recourse to the political question doctrine that in no small measure has emasculated the Court. The term
"political question," in this context, refers to matters which, under the Constitution, are to be decided by the people in their
sovereign capacity or in regard to which discretionary authority has been delegated to the legislative or executive branch
of the government.
The Supreme Court, nevertheless, should not be thought of as having been tasked with the awesome responsibility
of overseeing the entire bureaucracy. I find it here opportune to reiterate what I have stated inTolentino vs.
Secretary of Finance,
3
viz:
I cannot yet concede to the novel theory, so challengingly provocative as it might be, that under the
1987 Constitution the Court may now at good liberty intrude, in the guise of the peoples imprimatur,
into every affair of government. What significance can still then remain, I ask, of the time honored
and widely acclaimed principle of separation of powers if, at every turn, the Court allows itself to
pass upon at will the disposition of a co-equal, independent and coordinate branch in our system of
government. I dread to think of the so varied uncertainties that such an undue interference can lead
to. The respect for long standing doctrines in our jurisprudence, nourished through time, is one of
maturity, not timidity, of stability rather than quiescence.
Pervasive and limitless, such as it, may seem to be, judicial power still succumbs to the paramount doctrine
of separation of powers. Congress is the branch of government, composed of the representatives of the
people, that lays down the policies of government and provides the direction that the nation must take. The
Executive carries out that mandate. Certainly, the Court will not negate that which is done by these, co-equal
and co-ordinate branches merely because of a perceived case of grave abuse of discretion on their part,
clearly too relative a phrase to be its own sentinel against misuse, even as it will not hesitate to wield the
power if that abuse becomes all too clear. The exercise of judicial statesmanship, not judicial tyranny, is
what has been envisioned by and institutionalized in the 1987 Constitution.
There is no harnbook rule by which grave abuse of discretion may be determined. The provision was evidently
couched in general terms to make it malleable to judicial interpretation in the light of any contemporary or emerging
millieu. In its normal concept, the term has been said to imply capricious and whimsical exercise of judgment,
amounting, to lack or excess of jurisdiction, or at the power is exercised in an arbitrary or despotic manner such as
by reason of passion or personal hostility. When the question, however, pertains to an affair internal to either of
Congress or the Executive, I would subscribe to the dictum, somewhat made implicit in my understanding of Arroyo
vs. De Venecia,
4
that unless an infringement of any specific Constitutional proscription thereby inheres the Court will not
deign substitute its own judgment over that of any of the other two branches of government. Verily, in this situation, it is an
impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial
intervention.
In the instant settings, I find insufficient indication to have the case hew to the above rule.
Accordingly, I vote for the dismissal of the petition.
Footnotes
1 21 (1), BP 129; 5 (1), Art. VIII, Constitution.
2 See Manalo v. Gloria, 236 SCRA 130, 138-139, September 1, 1994; citing People v. Cuaresma,
172 SCRA 415, 423-24, April 18, 1989, and Defensor-Santiago v. Vasquez, 217 SCRA 633, 651-
652, January 27, 1993.
3 Uy v. Contreras, 237 SCRA 167, September 26, 1994; Vergara Sr. v. Suelto, 156 SCRA 753,
December 21, 1987.
4 Avelino v. Cueno, 83 Phil 17 (1949); Guingona, Jr. v. Gonzales, 214 SCRA 789, October 20, 1992.
5 Arroyo vs. De Venecia, 277 SCRA 268, August 14, 1997.
6 The solicitor general, in his Comment dated August 21, 1998, attributed to the 23 members of the
Senate the following party affiliations:
"Senate President Marcelo B. Fernan Laban ng Masang Pilipino(LAMP)
Sen. Raul S. Roco Aksyon Demokratiko
Sen. Ramon B. Magsaysay, Jr. Lakas-National Union of
Christian Democrats-
United Muslim Democrats
of the Philippines, (Lakas-
NUCD-UMDP)
Sen. Franklin M. Drilon LAMP
Sen. Juan M. Flavier Lakas-NUCD-UMDP
Sen. Miriam Defensor-Santiago Peoples Reform Party (PRP)
Sen. Sergio R. Osmea Liberal Party (LP)
Sen. Francisco S. Tatad PRP
Sen. Gregorio B. Honasan LP (Independent)
Sen. Juan Ponce Enrile LP (Independent)
Sen. Anna Dominique M.L. Coseteng LAMP
Sen. Loren Legarda-Leviste Lakas-NUCD-UMDP
Sen. Renato L. Cayetano Lakas-NUCD-UMDP
Sen. Vicente C. Sotto III LAMP
Sen. Aquilino Q. Pimemtel, Jr. LAMP
Sen. Robert Z. Barbers Lakas-NUCD-UMDP
Sen. Rodolfo G. Biazon LAMP
Sen. Blas F. Ople LAMP
Sen. John Henry R. Osmea LAMP
Sen. Robert S. Jaworski LAMP
Sen. Ramon B. Revilla Lakas-NUCD-UMDP
Sen. Teofisto T. Guingona, Jr. Lakas-NUCD-UMDP
Sen. Tessie Aquino-Oreta LAMP"
(Rollo, pp. 63-64. See also Comment of Respondent Guingona, Jr., rollo, p. 41.)
7 One position was vacant, because of the election of the incumbent, Gloria Macapagal Arroyo, as
the Vice President of the Philippines.
8 Senator Fernan abstained from voting. (Petition, p. 4; rollo, p. 6. Comment of the solicitor general,
p. 2; rollo, p. 63.)
9 Senators Robert Z. Barbers, Renato L. Cayetano, Juan M. Flavier, Teofisto T. Guingona Jr., Loren
Legarda-Leviste, Ramon B. Magsaysay Jr., and Ramon B. Revilla.
10 The Petition was signed by both petitioners; the Comment of Senate President Fernan, by
Senator Fernan himself and Attys. Mary Jane L. Zantua and Lani Grace R. Songco; the Comment of
Senator Guingona, by Atty. Ricardo G. Nepomuceno Jr.; the Comment of the OSG, by Sol. Gen.
Ricardo P. Galvez, Asst. Sol. Gen. Carlos N. Ortega and Associate Solicitor Rico Sebastian D.
Liwanag; while the Consolidated Reply, by Sen. Miriam Defenser Santiago.
11 83 Phil 17 (1949).
12 Bernas, The Constitution of the Republic of the Philippines: A Commentary, Vol. II, 1988 ed., p.
282.
13 10 (2), Art. VI of the 1935 Constitution, reads:
"(2) A majority of each House shall constitute a quorum to do business, but a smaller number may
adjourn from day to day and may compel the attendance of absent Members in such manner and
under such penalties as such House may provide."
14 Supra, p. 72.
15 At p. 76.
16 At p. 78.
17 At p. 79.
18 103 Phil 1051, 1068 (1957), per Concepcion, J.
19 Ibid., p. 1067, citing 16 CJS 413.
20 11, Art. VI of the 1935 Constitution.
21 42 SCRA 448, December 11, 1971.
22 5 Phil 87 (1905).
23 91 Phil 882 (1952).
24 50 SCRA 30, 84, 87, March 31, 1973.
25 Art. VIII, 1, par. 2.
26 180 SCRA 496, December 21, 1989, per Cruz, J.
27 187 SCRA 377, July 12, 1990, per Grio-Aquino, J.
28 214 SCRA 789, October 20, 1992, per Campos Jr., J.
29 272 SCRA 18, 47, May 2, 1997, per Panganiban, J.
30 199 SCRA 692, July 30, 1991, per Gutierrez Jr., J.
31 Citing Lazatin v. HRET, 168 SCRA 391, 1988.
32 Citing Robles v. HRET, 181 SCRA 780, 1990.
33 277 SCRA 268, August 14, 1997, per Mendoza, J.
34 At p. 299.
35 Alleje v. Court of Appeals, 240 SCRA 495, January 25, 1995; Sarmiento v. Court of Appeals, 250
SCRA 108, November 16, 1995; Times Broadcasting Network v. Court of Appeals, 274 SCRA 366,
June 19, 1997; Chico v. Court of Appeals, G.R. No. 122704, January 5, 1998.
36 Perez v. De la Cruz, 27 SCRA 587, 603 (1969), citing Websters International Dictionary,
Unabridged; Concurring Opinion of J. Perfecto in Avelino v. Cueno, supra, p. 80. See
also Petition,rollo, p. 12, citing Blacks Law Dictionary, 6th ed., 1990.
37 P. 15; rollo, p. 55.
38 Citing Record of the Senate, 8th Congress, Vol. I, No. 14, p. 9.
39 Citing Record of the Senate, 9th Congress, Vol. III, No. 47-A, pp. 88-94.
40 Then Minority Leader Ernesto C. Maceda chaired the Committees on Constitutional
Amendments, Revision of Codes and Laws; and on Foreign Relations. Senator Honasan chaired the
Committees on Agrarian Reform; on Peace, Unification and Reconciliation; and on Urban Planning,
Housing and Resettlement. Senator Coseteng was the chair of the Committees on Civil Service and
Government Reorganization; and on Labor, Employment and Human Resources. (See footnote 40
of Respondent Guingonas Comment, supra.)
41 Websters New World Dictionary, 2nd college ed., 1972.
42 Ibid.
43 16 (1), second par., Art. VI of the Constitution.
44 16 (3), Art. VI of the Constitution.
45 Rules of the Senate (see Appendix "A," Guide to the Senate by Reginald M. Pastrana and
Demaree J.B. Raval).
46 New York Public Interest Research Group, Inc. v. Steingut, 353 NE2d 558.
47 Concurring Opinion in Oposa v. Factoran Jr., 224 SCRA 792, 818, July 30, 1993.
48 Osmea Jr. v. Pendatun, 109 Phil 863, 870-871 (1960), citing 76 CJS 870. See also Arroyo v. De
Venecia, supra.
49 Ibid. See also Enrique M. Fernando, Constitution of the Philippines Annotated, 1977, pp. 188-
189.
50 Ledesma v. Court of Appeals, 278 SCRA 656, 681, September 5, 1997.
51 I RECORD OF THE CONSTITUTIONAL COMMISSION 436.
52 91 CJS 551, citing State ex rel Daniel v. Village of Mound, 48 NW2d 855, 863.
53 67 CJS 317, citing Wheat v. Smith, 7 SW 161.
54 Lota v. Court of Appeals, 2 SCRA 715, 718, June 30, 1961.
55 2, Rule 66, Rules of Court.
56 5, ibid. See also Municipality of San Narciso, Quezon v. Mendez Sr., 239 SCRA 11, 18,
December 6, 1994; Tarrosa v. Singson, 232 SCRA 553, 557, May 25, 1994.
In this regard, the Court notes that Petitioner Santiago has no standing to bring the instant petition
forquo warranto, for she does not claim to be rightfully entitled to the position of Senate minority
leader. We have ruled in the past:
"Nothing is better settled than that a petitioner, in a quo warranto proceeding to try
title to a public office, must be able to show that he is entitled to said office. Absent
such an element, the petition must be dismissed. This is a principle that goes back to
Acosta v. Flor [5 Phil 18, 22], a 1905 decision. There, the doctrine has been laid
down that: No individual can bring a civil action relating to usurpation of a public
office without averring that he has a right to the same; and at any stage of the
proceedings, if it be shown that such individual has no right, the action may be
dismissed because there is no legal ground upon which it may proceed when the
fundamental basis of such action is destroyed. This has been the exacting rule,
since then, followed with stricter firmness in Cuyegkeng v. Cruz [108 Phil 1147],
where this Court held that one who does not claim to be entitled to the office
allegedly usurped or unlawfully held or exercised by, another, but who merely
asserts a right to be appointed thereto, cannot question the latters title to the same
by quo warranto. In other words, one whose, claim is predicated solely upon a more
or less remote possibility, that he may be the recipient of the appointment, has no
cause of action against the office holder." (Garcia v. Perez, 99 SCRA 628, 633-34,
September 11, 1980, per De Castro, J.)
However, any question on standing has been rendered moot by the inclusion of Petitioner Tatad,
who claims to have the right to the contested office.
57 1, Rule 66, Rules of Court. In relation to this rule, Respondent Fernan claims that he is not a
proper party to the case, because he did not usurp nor is he unlawfully holding or exercising the
office of minority leader. While the action commenced by petitioners was denominated a quo
warrantopetition under Rule 66, the Court notes that among the principal averments made was that
Respondent Fernan committed grave abuse of discretion in recognizing Respondent Guingona as
the Senate minority leader. Such averment brings the petition within the purview of
a certiorari proceeding under Rule 65. A basic principle in remedial law states that it is not the title
given by the parties to the action which determines its nature, but the averments made in the
pleadings. The case may, thus, be treated as a joint certiorari and quo warranto action and, as such,
Respondent Fernan is a proper, if not necessary, party thereto.
58 Batario Jr. v. Parentela Jr., 9 SCRA 601, November 29, 1963; Caraon-Medina v. Quizon, 18
SCRA 562, October 29, 1966.
59 Commissioner of Internal Revenue v. Court of Appeals, 257 SCRA 200, 209, June 4, 1996, per
Kapunan, J.; citing Philippine Airlines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994, and other
cases. See also Imutan v. Court of Appeals, 102 SCRA 286, 292 January 27, 1981.
MENDOZA, J., concurring and dissenting opinion;
1 Majority Opinion. p. 18.
2 Alejandrino v. Quezon, 46 Phil. 83 (1924) (suspension of senator for disorderly conduct for
assaulting a fellow senator): Osmea v. Pendatun, 109 Phil. 863 (1960) (suspension of senator for
disorderly behavior for imputing bribery to President Garcia)
3 Arroyo v. De Venecia, 277 SCRA 268 (1997) (power of each house to determine its rules of
proceedings)
4 VICENTE G. SINCO, PHILIPPINE POLITICAL LAW 171-172 (11th ed. 1962).
5 83 Phil. 17 (1949).
6 Id., at 50.
7 Id., at 79.
8 103 Phil. 1051 (1957).
9 Daza v. Singson, 180 SCRA 496 (1989); Coseteng v. Mitra, Jr., 187 SCRA. 377 (1990); Guingona,
Jr. v. Gonzales, 214 SCRA 789 (1992).
10 88 Phil. 654 (1951).
11 115 Phil. vii (1962).
12 40 SCRA 58 (1971).
13 Cranch 137, 2L.Ed. 60 (1803).
ROMERO, J., separate opinion;
1 235 SCRA 630.
2 August 14, 1997.
3 G.R. No. 127255; 277 SCRA 268 (1997).
VITUG, J., separate opinion;
1 Justice Jose C. Vitug, The court and its Ways, The Court System Journal, June 1998, Volume 3
No. 2.
2 Sec. 1, Article VIII.
3 235 SCRA 630, 720.
4 277 SCRA 268, 289.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-34150 October 16, 1971
ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE DISBURSING
OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G.
BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA,
LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA, Intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the 1971
Constitutional Convention.
Intervenors in their own behalf.
BARREDO, J .:
Petition for prohibition principally to restrain the respondent Commission on Elections "from undertaking to hold a
plebiscite on November 8, 1971," at which the proposed constitutional amendment "reducing the voting age" in
Section 1 of Article V of the Constitution of the Philippines to eighteen years "shall be, submitted" for ratification by
the people pursuant to Organic Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent
implementing resolutions, by declaring said resolutions to be without the force and effect of law in so far as they
direct the holding of such plebiscite and by also declaring the acts of the respondent Commission (COMELEC)
performed and to be done by it in obedience to the aforesaid Convention resolutions to be null and void, for being
violative of the Constitution of the Philippines.
As a preliminary step, since the petition named as respondent only the COMELEC, the Count required that copies
thereof be served on the Solicitor General and the Constitutional Convention, through its President, for such action
as they may deem proper to take. In due time, respondent COMELEC filed its answer joining issues with petitioner.
To further put things in proper order, and considering that the fiscal officers of the Convention are indispensable
parties in a proceeding of this nature, since the acts sought to be enjoined involve the expenditure of funds
appropriated by law for the Convention, the Court also ordered that the Disbursing Officer, Chief Accountant and
Auditor of the Convention be made respondents. After the petition was so amended, the first appeared thru Senator
Emmanuel Pelaez and the last two thru Delegate Ramon Gonzales. All said respondents, thru counsel, resist
petitioners action.
For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible confusion, and
considering that with the principal parties being duly represented by able counsel, their interests would be
adequately protected already, the Court had to limit the number of intervenors from the ranks of the delegates to the
Convention who, more or less, have legal interest in the success of the respondents, and so, only Delegates Raul S.
Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo
Siguion Reyna, Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right, have been allowed to
intervene jointly. The Court feels that with such an array of brilliant and dedicated counsel, all interests involved
should be duly and amply represented and protected. At any rate, notwithstanding that their corresponding motions
for leave to intervene or to appear as amicus curiae 1 have been denied, the pleadings filed by the other delegates
and some private parties, the latter in representation of their minor children allegedly to be affected by the result of
this case with the records and the Court acknowledges that they have not been without value as materials in the
extensive study that has been undertaken in this case.
The background facts are beyond dispute. The Constitutional Convention of 1971 came into being by virtue of two
resolutions of the Congress of the Philippines approved in its capacity as a constituent assembly convened for the
purpose of calling a convention to propose amendments to the Constitution namely, Resolutions 2 and 4 of the joint
sessions of Congress held on March 16, 1967 and June 17, 1969 respectively. The delegates to the said
Convention were all elected under and by virtue of said resolutions and the implementing legislation thereof,
Republic Act 6132. The pertinent portions of Resolution No 2 read as follows:
SECTION 1. There is hereby called a convention to propose amendments to the Constitution of the
Philippines, to be composed of two elective Delegates from each representative district who shall
have the same qualifications as those required of Members of the House of Representatives.
xxx xxx xxx
SECTION 7. The amendments proposed by the Convention shall be valid and considered part of the
Constitution when approved by a majority of the votes cast in an election at which they are submitted
to the people for their ratification pursuant to Article XV of the Constitution.
Resolution No. 4 merely modified the number of delegates to represent the different cities and provinces fixed
originally in Resolution No 2.
After the election of the delegates held on November 10, 1970, the Convention held its inaugural session on June 1,
1971. Its preliminary labors of election of officers, organization of committees and other preparatory works over, as
its first formal proposal to amend the Constitution, its session which began on September 27, 1971, or more
accurately, at about 3:30 in the morning of September 28, 1971, the Convention approved Organic Resolution No. 1
reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION OF THE
PHILIPPINES SO AS TO LOWER THE VOTING AGE TO 18
BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:
Section 1. Section One of Article V of the Constitution of the Philippines is amended to as follows:
Section 1. Suffrage may be exercised by (male) citizens of the Philippines not
otherwise disqualified by law, who are (twenty-one) EIGHTEEN years or over and
are able to read and write, and who shall have resided in the Philippines for one year
and in the municipality wherein they propose to vote for at least six months preceding
the election.
Section 2. This amendment shall be valid as part of the Constitution of the Philippines when
approved by a majority of the votes cast in a plebiscite to coincide with the local elections in
November 1971.
Section 3. This partial amendment, which refers only to the age qualification for the exercise of
suffrage shall be without prejudice to other amendments that will be proposed in the future by the
1971 Constitutional Convention on other portions of the amended Section or on other portions of the
entire Constitution.
Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its savings or
from its unexpended funds for the expense of the advanced plebiscite; provided, however that
should there be no savings or unexpended sums, the Delegates waive P250.00 each or the
equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent Comelec "to help
the Convention implement (the above) resolution." The said letter reads:
September 28, 1971
The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the
Constitutional Convention Act of 1971, may we call upon you to help the Convention implement this
resolution:
Sincerely,
(Sgd.) DIOSDADO P. MACAPAGAL
DIOSDADO P. MACAPAGAL
President
On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will hold the
plebiscite on condition that:
(a) The Constitutional Convention will undertake the printing of separate official ballots, election
returns and tally sheets for the use of said plebiscite at its expense;
(b) The Constitutional Convention will adopt its own security measures for the printing and shipment
of said ballots and election forms; and
(c) Said official ballots and election forms will be delivered to the Commission in time so that they
could be distributed at the same time that the Commission will distribute its official and sample
ballots to be used in the elections on November 8, 1971.
What happened afterwards may best be stated by quoting from intervenors Governors statement of the genesis of
the above proposal:
The President of the Convention also issued an order forming an Ad Hoc Committee to implement
the Resolution.
This Committee issued implementing guidelines which were approved by the President who then
transmitted them to the Commission on Elections.
The Committee on Plebiscite and Ratification filed a report on the progress of the implementation of
the plebiscite in the afternoon of October 7,1971, enclosing copies of the order, resolution and letters
of transmittal above referred to (Copy of the report is hereto attached as Annex 8-Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of October 7, 1971, the Convention approved a resolution
authored by Delegate Antonio Olmedo of Davao Oriental, calling for a recess of the Convention from
November 1, 1971 to November 9, 1971 to permit the delegates to campaign for the ratification of
Organic Resolution No. 1. (Copies of the resolution and the transcript of debate thereon are hereto
attached as Annexes 9 and 9-A Memorandum, respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate Jose
Ozamiz confirming the authority of the President of the Convention to implement Organic Resolution
No. 1, including the creation of the Ad Hoc Committee ratifying all acts performed in connection with
said implementation.
Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other implementing
resolutions thereof subsequently approved by the Convention have no force and effect as laws in so far as they
provide for the holding of a plebiscite co-incident with the elections of eight senators and all city, provincial and
municipal officials to be held on November 8, 1971, hence all of Comelecs acts in obedience thereof and tending to
carry out the holding of the plebiscite directed by said resolutions are null and void, on the ground that the calling
and holding of such a plebiscite is, by the Constitution, a power lodged exclusively in Congress, as a legislative
body, and may not be exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the
proposed amendment in question cannot be presented to the people for ratification separately from each and all of
the other amendments to be drafted and proposed by the Convention. On the other hand, respondents and
intervenors posit that the power to provide for, fix the date and lay down the details of the plebiscite for the
ratification of any amendment the Convention may deem proper to propose is within the authority of the Convention
as a necessary consequence and part of its power to propose amendments and that this power includes that of
submitting such amendments either individually or jointly at such time and manner as the Convention may direct in
discretion. The Courts delicate task now is to decide which of these two poses is really in accord with the letter and
spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They contend that the issue
before Us is a political question and that the Convention being legislative body of the highest order is sovereign, and
as such, its acts impugned by petitioner are beyond the control of the Congress and the courts. In this connection, it
is to be noted that none of the respondent has joined intervenors in this posture. In fact, respondents Chief
Accountant and Auditor of the convention expressly concede the jurisdiction of this Court in their answer
acknowledging that the issue herein is a justifiable one.
Strangely, intervenors cite in support of this contention portions of the decision of this Court in the case of Gonzales
v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being divided in their opinions as to the
other matters therein involved, were precisely unanimous in upholding its jurisdiction. Obviously, distinguished
counsel have either failed to grasp the full impact of the portions of Our decision they have quoted or would
misapply them by taking them out of context.
There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the constitutionality
of the acts of the Congress, acting as a constituent assembly, and, for that matter, those of a constitutional
convention called for the purpose of proposing amendments to the Constitution, which concededly is at par with the
former. A simple reading of Our ruling in that very case of Gonzales relied upon by intervenors should dispel any
lingering misgivings as regards that point. Succinctly but comprehensively, Chief Justice Concepcion held for the
Court thus: .
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court speaking through one
of the leading members of the Constitutional Convention and a respected professor of Constitutional
Law, Dr. Jose P. Laurel declared that "the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue submitted thereto
as a political one declined to pass upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution which was being submitted to the
people for ratification satisfied the three-fourths vote requirement of the fundamental law. The
force of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate
(81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Taada v. Cuenco, (L-10520, Feb.
28, 1957) and Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In the first we held
that the officers and employees of the Senate Electoral Tribunal are under its supervision and
control, not of that of the Senate President, as claimed by the latter; in the second, this Court
proceeded to determine the number of Senators necessary for quorum in the Senate; in the third, we
nullified the election, by Senators belonging to the party having the largest number of votes in said
chamber, purporting to act, on behalf of the party having the second largest number of votes therein
of two (2) Senators belonging to the first party, as members, for the second party, of the Senate
Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to
apportion the representatives districts for the House of Representatives, upon the ground that the
apportionment had not been made as may be possible according to the number of inhabitants of
each province. Thus we rejected the theory, advanced in these four (4) cases that the issues therein
raised were political questions the determination of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments thereto is not included in
the general grant of legislative powers to Congress (Section 1, Art. VI, Constitution of the
Philippines). It is part of the inherent powers of the people as the repository sovereignty in a
republican state, such as ours (Section 1, Art. 11, Constitution of the Philippines) to make, and,
hence, to amend their own Fundamental Law. Congress may propose amendments to the
Constitution merely because the same explicitly grants such power. (Section 1, Art. XV, Constitution
of the Philippines) Hence, when exercising the same, it is said that Senators and members of the
House of Representatives act, not as members of Congress, but as component elements of
a constituent assembly. When acting as such, the members of Congress derive their authority from
the Constitution, unlike the people, when performing the same function, (Of amending the
Constitution) for their authority does not emanate from the Constitution they are the very
source of all powers of government including the Constitution itself.
Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of
Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not
have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise,
they could brush aside and set the same at naught, contrary to the basic tenet that ours is a
government of laws, not of men, and to the rigid nature of our Constitution. Such rigidity is stressed
by the fact that the Constitution expressly confers upon the Supreme Court, (And, inferentially, to
lower courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the Constitution),
despite the eminently political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress acting as a constituent assembly
violates the Constitution is essentially justiciable not political, and, hence, subject to judicial review,
and, to the extent that this view may be inconsistent with the stand taken in Mabanag v. Lopez Vito,
(supra) the latter should be deemed modified accordingly. The Members of the Court are unanimous
on this point.
No one can rightly claim that within the domain of its legitimate authority, the Convention is not supreme. Nowhere
in his petition and in his oral argument and memoranda does petitioner point otherwise. Actually, what respondents
and intervenors are seemingly reluctant to admit is that the Constitutional Convention of 1971, as any other
convention of the same nature, owes its existence and derives all its authority and power from the existing
Constitution of the Philippines. This Convention has not been called by the people directly as in the case of a
revolutionary convention which drafts the first Constitution of an entirely new government born of either a war of
liberation from a mother country or of a revolution against an existing government or of a bloodless seizure of
power a la coup detat. As to such kind of conventions, it is absolutely true that the convention is completely without
restrain and omnipotent all wise, and it is as to such conventions that the remarks of Delegate Manuel Roxas of the
Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can belie the fact
that the current convention came into being only because it was called by a resolution of a joint session of Congress
acting as a constituent assembly by authority of Section 1, Article XV of the present Constitution which provides:
ARTICLE XV AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the Members
of the Senate and of the House of Representatives voting separately, may propose amendments to
this Constitution or call a convention for the purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification.
True it is that once convened, this Convention became endowed with extra ordinary powers generally beyond the
control of any department of the existing government, but the compass of such powers can be co-extensive only
with the purpose for which the convention was called and as it may propose cannot have any effect as part of the
Constitution until the same are duly ratified by the people, it necessarily follows that the acts of convention, its
officers and members are not immune from attack on constitutional grounds. The present Constitution is in full force
and effect in its entirety and in everyone of its parts the existence of the Convention notwithstanding, and operates
even within the walls of that assembly. While it is indubitable that in its internal operation and the performance of its
task to propose amendments to the Constitution it is not subject to any degree of restraint or control by any other
authority than itself, it is equally beyond cavil that neither the Convention nor any of its officers or members can
rightfully deprive any person of life, liberty or property without due process of law, deny to anyone in this country the
equal protection of the laws or the freedom of speech and of the press in disregard of the Bill of Rights of the
existing Constitution. Nor, for that matter, can such Convention validly pass any resolution providing for the taking of
private property without just compensation or for the imposition or exacting of any tax, impost or assessment, or
declare war or call the Congress to a special session, suspend the privilege of the writ of habeas corpus, pardon a
convict or render judgment in a controversy between private individuals or between such individuals and the state, in
violation of the distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may not and cannot validly assert, much less exercise,
in the light of the existing Constitution, the simple question arises, should an act of the Convention be assailed by a
citizen as being among those not granted to or inherent in it, according to the existing Constitution, who can decide
whether such a contention is correct or not? It is of the very essence of the rule of law that somehow somewhere the
Power and duty to resolve such a grave constitutional question must be lodged on some authority, or we would have
to confess that the integrated system of government established by our founding fathers contains a wide vacuum no
intelligent man could ignore, which is naturally unworthy of their learning, experience and craftsmanship in
constitution-making.
We need not go far in search for the answer to the query We have posed. The very decision of Chief Justice
Concepcion in Gonzales, so much invoked by intervenors, reiterates and reinforces the irrefutable logic and wealth
of principle in the opinion written for a unanimous Court by Justice Laurel in Angara vs. Electoral Commission, 63
Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the several departments, however,
sometimes makes it hard to say where the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmark of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers between
the several departments and among the integral or constituent units thereof.
As any human production our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a republican
government intended to operate and function as a harmonious whole, under a system of check and
balances and subject to specific limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it would be inconceivable
if the Constitution had not provided for a mechanism by which to direct the course of government
along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment and the principles of good government mere political
apothegms. Certainly the limitations and restrictions embodied in our Constitution are real as they
should be in any living Constitution. In the United States where no express constitutional grant is
found in their constitution, the possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by popular acquiescence for a period of
more than one and half centuries. In our case, this moderating power is granted, if not expressly, by
clear implication from section 2 of Article VIII of our Constitution.
The Constitution is a definition of the powers or government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it does not in reality nullify or invalidate
an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power
of judicial review under the Constitution. Even then, this power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of argument by the parties, and limited
further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to strike conclusions unrelated to
actualities. Narrowed as its functions is in this manner the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed to abide by
the Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the government.
But much as we might postulate on the internal checks of power provided in our Constitution, it
ought not the less to be remembered that, in the language of James Madison, the system itself is not
"the chief palladium of constitutional liberty ... the people who are authors of this blessing must also
be its guardians ... their eyes must be ever ready to mark, their voices to pronounce ... aggression
on the authority of their Constitution." In the last and ultimate analysis then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than
in consultation rooms and court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of December 3, 1935, confirmed
the election of the herein petitioner to the said body. On the other hand, the Electoral Commission
has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of
protests against the election, returns and qualifications of members of the National Assembly;
notwithstanding the previous confirmations made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the
power of the Electoral Commission to entertain protests against the election, returns and
qualifications of members of the National Assembly, submitted after December 3, 1935 then the
resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect.
But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating
its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935,
by which the Electoral Commission fixed said date as the last day for filing protests against the
election, returns and qualifications of members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a grave constitutional
nature between the National Assembly on the one hand and the Electoral Commission on the other.
From the very nature of the republican government established in our country in the light of
American experience and of our own, upon the judicial department is thrown the solemn and
inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The
Electoral Commission as we shall have occasion to refer hereafter, is a constitutional organ, created
for a specific purpose, namely, to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the Electoral Commission may not
be interfered with, when and while acting within the limits of its authority, it does not follow that it is
beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to
constitutional restriction. The Electoral Commission is not a separate department of the government,
and even if it were, conflicting claims of authority under the fundamental law between departmental
powers and agencies of the government are necessarily determined by the judiciary in justiciable
and appropriate cases. Discarding the English type and other European types of constitutional
government, the framers of our Constitution adopted the American type where the written
constitution is interpreted and given effect by the judicial department. In some countries which have
declined to follow the American example, provisions have been inserted in their constitutions
prohibiting the courts from exercising the power to interpret the fundamental law. This is taken as a
recognition of what otherwise would be the rule that in the absence of direct prohibition, courts are
bound to assume what is logically their function. For instance, the Constitution of Poland of 1921
expressly provides that courts shall have no power to examine the validity of statutes (art. 81, Chap.
IV). The former Austrian Constitution contained a similar declaration. In countries whose constitution
are silent in this respect, courts have assumed this power. This is true in Norway, Greece, Australia
and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional
Charter of the Czechoslavak, Republic, February 29, 1920) and Spain (arts. 121-123, Title IX,
Constitution of the Republic of 1931) especial constitutional courts are established to pass upon the
validity of ordinary laws. In our case, the nature of the present controversy shows the necessity of a
final constitutional arbiter to determine the conflict of authority between two agencies created by the
Constitution. Were we to decline to take cognizance of the controversy, who will determine the
conflict? And if the conflict were left undecided and undetermined, would not a void be thus created
in our constitutional system which may in the long run prove destructive of the entire framework? To
ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our
constitutional system. Upon principle, reason, and authority, we are clearly of the opinion that upon
the admitted facts of the present case, this court has jurisdiction over the Electoral Commission and
the subject matter of the present controversy for the purpose of determining the character, scope
and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests
relating to the election, returns and qualifications of the members of the National Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these postulates just quoted do
not apply only to conflicts of authority between the three existing regular departments of the government but to all
such conflicts between and among these departments, or, between any of them, on the one hand, and any other
constitutionally created independent body, like the electoral tribunals in Congress, the Comelec and the Constituent
assemblies constituted by the House of Congress, on the other. We see no reason of logic or principle whatsoever,
and none has been convincingly shown to Us by any of the respondents and intervenors, why the same ruling
should not apply to the present Convention, even if it is an assembly of delegate elected directly by the people,
since at best, as already demonstrated, it has been convened by authority of and under the terms of the present
Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the present case. It goes
without saying that We do this not because the Court is superior to the Convention or that the Convention is subject
to the control of the Court, but simply because both the Convention and the Court are subject to the Constitution and
the rule of law, and "upon principle, reason and authority," per Justice Laurel, supra, it is within the power as it is the
solemn duty of the Court, under the existing Constitution to resolve the issues in which petitioner, respondents and
intervenors have joined in this case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of the
Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the ratification of the
proposed amendment reducing to eighteen years the age for the exercise of suffrage under Section 1 of Article V of
the Constitution proposed in the Conventions Organic Resolution No. 1 in the manner and form provided for in said
resolution and the subsequent implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand the most accurate and unequivocal
statement of the real issue which the Court is called upon to resolve. Petitioner has very clearly stated that he is not
against the constitutional extension of the right of suffrage to the eighteen-year-olds, as a matter of fact, he has
advocated or sponsored in Congress such a proposal, and that, in truth, the herein petition is not intended by him to
prevent that the proposed amendment here involved be submitted to the people for ratification, his only purpose in
filing the petition being to comply with his sworn duty to prevent, Whenever he can, any violation of the Constitution
of the Philippines even if it is committed in the course of or in connection with the most laudable undertaking.
Indeed, as the Court sees it, the specific question raised in this case is limited solely and only to the point of whether
or not it is within the power of the Convention to call for a plebiscite for the ratification by the people of the
constitutional amendment proposed in the abovequoted Organic Resolution No. 1, in the manner and form provided
in said resolution as well as in the subject question implementing actions and resolution of the Convention and its
officers, at this juncture of its proceedings, when as it is a matter of common knowledge and judicial notice, it is not
set to adjourn sine die, and is, in fact, still in the preliminary stages of considering other reforms or amendments
affecting other parts of the existing Constitution; and, indeed, Organic Resolution No. 1 itself expressly provides,
that the amendment therein proposed "shall be without prejudice to other amendments that will be proposed in the
future by the 1971 Constitutional Convention on other portions of the amended section or on other portions of the
entire Constitution." In other words, nothing that the Court may say or do, in this case should be understood as
reflecting, in any degree or means the individual or collective stand of the members of the Court on the fundamental
issue of whether or not the eighteen-year-olds should be allowed to vote, simply because that issue is not before Us
now. There should be no doubt in the mind of anyone that, once the Court finds it constitutionally permissible, it will
not hesitate to do its part so that the said proposed amendment may be presented to the people for their approval or
rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not blinded them to
the absolute necessity, under the fundamental principles of democracy to which the Filipino people is committed, of
adhering always to the rule of law. Surely, their idealism, sincerity and purity of purpose cannot permit any other line
of conduct or approach in respect of the problem before Us. The Constitutional Convention of 1971 itself was born,
in a great measure, because of the pressure brought to bear upon the Congress of the Philippines by various
elements of the people, the youth in particular, in their incessant search for a peaceful and orderly means of bringing
about meaningful changes in the structure and bases of the existing social and governmental institutions, including
the provisions of the fundamental law related to the well-being and economic security of the underprivileged classes
of our people as well as those concerning the preservation and protection of our natural resources and the national
patrimony, as an alternative to violent and chaotic ways of achieving such lofty ideals. In brief, leaving aside the
excesses of enthusiasm which at times have justifiably or unjustifiably marred the demonstrations in the streets,
plazas and campuses, the youth of the Philippines, in general, like the rest of the people, do not want confusion and
disorder, anarchy and violence; what they really want are law and order, peace and orderliness, even in the pursuit
of what they strongly and urgently feel must be done to change the present order of things in this Republic of ours. It
would be tragic and contrary to the plain compulsion of these perspectives, if the Court were to allow itself in
deciding this case to be carried astray by considerations other than the imperatives of the rule of law and of the
applicable provisions of the Constitution. Needless to say, in a larger measure than when it binds other departments
of the government or any other official or entity, the Constitution imposes upon the Court the sacred duty to give
meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate cases with the
proper parties, and by striking down any act violative thereof. Here, as in all other cases, We are resolved to
discharge that duty.
During these twice when most anyone feels very strongly the urgent need for constitutional reforms, to the point of
being convinced that meaningful change is the only alternative to a violent revolution, this Court would be the last to
put any obstruction or impediment to the work of the Constitutional Convention. If there are respectable sectors
opining that it has not been called to supplant the existing Constitution in its entirety, since its enabling provision,
Article XV, from which the Convention itself draws life expressly speaks only of amendments which shall form part of
it, which opinion is not without persuasive force both in principle and in logic, the seemingly prevailing view is that
only the collective judgment of its members as to what is warranted by the present condition of things, as they see it,
can limit the extent of the constitutional innovations the Convention may propose, hence the complete substitution of
the existing constitution is not beyond the ambit of the Conventions authority. Desirable as it may be to resolve, this
grave divergence of views, the Court does not consider this case to be properly the one in which it should discharge
its constitutional duty in such premises. The issues raised by petitioner, even those among them in which
respondents and intervenors have joined in an apparent wish to have them squarely passed upon by the Court do
not necessarily impose upon Us the imperative obligation to express Our views thereon. The Court considers it to be
of the utmost importance that the Convention should be untrammelled and unrestrained in the performance of its
constitutionally as signed mission in the manner and form it may conceive best, and so the Court may step in to
clear up doubts as to the boundaries set down by the Constitution only when and to the specific extent only that it
would be necessary to do so to avoid a constitutional crisis or a clearly demonstrable violation of the existing
Charter. Withal, it is a very familiar principle of constitutional law that constitutional questions are to be resolved by
the Supreme Court only when there is no alternative but to do it, and this rule is founded precisely on the principle of
respect that the Court must accord to the acts of the other coordinate departments of the government, and certainly,
the Constitutional Convention stands almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it clear that the Convention came into being by
a call of a joint session of Congress pursuant to Section I of Article XV of the Constitution, already quoted earlier in
this opinion. We reiterate also that as to matters not related to its internal operation and the performance of its
assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of proposing
amendments to the Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it
is plain to Us that the framers of the Constitution took care that the process of amending the same should not be
undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most
valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers
have chosen for this nation, and which we of the succeeding generations generally cherish. And because the
Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within
the country and those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A
constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation
and study. It is obvious that correspondingly, any amendment of the Constitution is of no less importance than the
whole Constitution itself, and perforce must be conceived and prepared with as much care and deliberation. From
the very nature of things, the drafters of an original constitution, as already observed earlier, operate without any
limitations, restraints or inhibitions save those that they may impose upon themselves. This is not necessarily true of
subsequent conventions called to amend the original constitution. Generally, the framers of the latter see to it that
their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but
more importantly, because written constitutions are supposed to be designed so as to last for some time, if not for
ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence, they must
be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies.
Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so
by the people themselves, in regard to the process of their amendment. And when such limitations or conditions are
so incorporated in the original constitution, it does not lie in the delegates of any subsequent convention to claim
that they may ignore and disregard such conditions because they are as powerful and omnipotent as their original
counterparts.
Nothing of what is here said is to be understood as curtailing in any degree the number and nature and the scope
and extent of the amendments the Convention may deem proper to propose. Nor does the Court propose to pass on
the issue extensively and brilliantly discussed by the parties as to whether or not the power or duty to call a
plebiscite for the ratification of the amendments to be proposed by the Convention is exclusively legislative and as
such may be exercised only by the Congress or whether the said power can be exercised concurrently by the
Convention with the Congress. In the view the Court takes of present case, it does not perceive absolute necessity
to resolve that question, grave and important as it may be. Truth to tell, the lack of unanimity or even of a consensus
among the members of the Court in respect to this issue creates the need for more study and deliberation, and as
time is of the essence in this case, for obvious reasons, November 8, 1971, the date set by the Convention for the
plebiscite it is calling, being nigh, We will refrain from making any pronouncement or expressing Our views on this
question until a more appropriate case comes to Us. After all, the basis of this decision is as important and decisive
as any can be.
The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1 of Article XV of
the Constitution which is violated by the act of the Convention of calling for a plebiscite on the sole amendment
contained in Organic Resolution No. 1? The Court holds that there is, and it is the condition and limitation that all the
amendments to be proposed by the same Convention must be submitted to the people in a single "election" or
plebiscite. It being indisputable that the amendment now proposed to be submitted to a plebiscite is only the first
amendment the Convention propose We hold that the plebiscite being called for the purpose of submitting the same
for ratification of the people on November 8, 1971 is not authorized by Section 1 of Article XV of the Constitution,
hence all acts of the Convention and the respondent Comelec in that direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly that either Congress
sitting as a constituent assembly or a convention called for the purpose "may propose amendments to this
Constitution," thus placing no limit as to the number of amendments that Congress or the Convention may propose.
The same provision also as definitely provides that "such amendments shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election at which the amendments are submitted to the people
for their ratification," thus leaving no room for doubt as to how many "elections" or plebiscites may be held to ratify
any amendment or amendments proposed by the same constituent assembly of Congress or convention, and the
provision unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this provision. As already
stated, amending the Constitution is as serious and important an undertaking as constitution making itself. Indeed,
any amendment of the Constitution is as important as the whole of it if only because the Constitution has to be an
integrated and harmonious instrument, if it is to be viable as the framework of the government it establishes, on the
one hand, and adequately formidable and reliable as the succinct but comprehensive articulation of the rights,
liberties, ideology, social ideals, and national and nationalistic policies and aspirations of the people, on the other. lt
is inconceivable how a constitution worthy of any country or people can have any part which is out of tune with its
other parts..
A constitution is the work of the people thru its drafters assembled by them for the purpose. Once the original
constitution is approved, the part that the people play in its amendment becomes harder, for when a whole
constitution is submitted to them, more or less they can assumed its harmony as an integrated whole, and they can
either accept or reject it in its entirety. At the very least, they can examine it before casting their vote and determine
for themselves from a study of the whole document the merits and demerits of all or any of its parts and of the
document as a whole. And so also, when an amendment is submitted to them that is to form part of the existing
constitution, in like fashion they can study with deliberation the proposed amendment in relation to the whole
existing constitution and or any of its parts and thereby arrive at an intelligent judgment as to its acceptability.
This cannot happen in the case of the amendment in question. Prescinding already from the fact that under Section
3 of the questioned resolution, it is evident that no fixed frame of reference is provided the voter, as to what finally
will be concomitant qualifications that will be required by the final draft of the constitution to be formulated by the
Convention of a voter to be able to enjoy the right of suffrage, there are other considerations which make it
impossible to vote intelligently on the proposed amendment, although it may already be observed that under Section
3, if a voter would favor the reduction of the voting age to eighteen under conditions he feels are needed under the
circumstances, and he does not see those conditions in the ballot nor is there any possible indication whether they
will ever be or not, because Congress has reserved those for future action, what kind of judgment can he render on
the proposal?
But the situation actually before Us is even worse. No one knows what changes in the fundamental principles of the
constitution the Convention will be minded to approve. To be more specific, we do not have any means of
foreseeing whether the right to vote would be of any significant value at all. Who can say whether or not later on the
Convention may decide to provide for varying types of voters for each level of the political units it may divide the
country into. The root of the difficulty in other words, lies in that the Convention is precisely on the verge of
introducing substantial changes, if not radical ones, in almost every part and aspect of the existing social and
political order enshrined in the present Constitution. How can a voter in the proposed plebiscite intelligently
determine the effect of the reduction of the voting age upon the different institutions which the Convention may
establish and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution
may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of
the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to
form a harmonious whole. In the context of the present state of things, where the Convention has hardly started
considering the merits of hundreds, if not thousands, of proposals to amend the existing Constitution, to present to
the people any single proposal or a few of them cannot comply with this requirement. We are of the opinion that the
present Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people are
in the dark as to frame of reference they can base their judgment on. We reject the rationalization that the present
Constitution is a possible frame of reference, for the simple reason that intervenors themselves are stating that the
sole purpose of the proposed amendment is to enable the eighteen year olds to take part in the election for the
ratification of the Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be,
in the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper
submission".
III
The Court has no desire at all to hamper and hamstring the noble work of the Constitutional Convention. Much less
does the Court want to pass judgment on the merits of the proposal to allow these eighteen years old to vote. But
like the Convention, the Court has its own duties to the people under the Constitution which is to decide in
appropriate cases with appropriate parties Whether or not the mandates of the fundamental law are being complied
with. In the best light God has given Us, we are of the conviction that in providing for the questioned plebiscite
before it has finished, and separately from, the whole draft of the constitution it has been called to formulate, the
Conventions Organic Resolution No. 1 and all subsequent acts of the Convention implementing the same violate
the condition in Section 1, Article XV that there should only be one "election" or plebiscite for the ratification of all the
amendments the Convention may propose. We are not denying any right of the people to vote on the proposed
amendment; We are only holding that under Section 1, Article XV of the Constitution, the same should be submitted
to them not separately from but together with all the other amendments to be proposed by this present Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the Constitutional
Convention of 1971 and the implementing acts and resolutions of the Convention, insofar as they provide for the
holding of a plebiscite on November 8, 1971, as well as the resolution of the respondent Comelec complying
therewith (RR Resolution No. 695) are hereby declared null and void. The respondents Comelec, Disbursing Officer,
Chief Accountant and Auditor of the Constitutional Convention are hereby enjoined from taking any action in
compliance with the said organic resolution. In view of the peculiar circumstances of this case, the Court declares
this decision immediately executory. No costs.
Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.
Separate Opinions
MAKALINTAL, J ., reserves his vote
I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on just one ground,
which to be sure achieves the result from the legal and constitutional viewpoint. I entertain grave doubts as to the
validity of the premises postulated and conclusions reached in support of the dispositive portion of the decision.
However, considering the urgent nature of this case, the lack of time to set down at length my opinion on the
particular issue upon which the decision is made to rest, and the fact that a dissent on the said issue would
necessarily be inconclusive unless the other issues raised in the petition are also considered and ruled upon a
task that would be premature and pointless at this time I limit myself to this reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, J J ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and vigorous style.
Like him, we do not express our individual views on the wisdom of the proposed constitutional amendment, which is
not in issue here because it is a matter that properly and exclusively addresses itself to the collective judgment of
the people.
We must, however, articulate two additional objections of constitutional dimension which, although they would seem
to be superfluous because of the reach of the basic constitutional infirmity discussed in extenso in the main opinion,
nevertheless appear to us to be just as fundamental in character and scope.
Assuming that the Constitutional Convention has power to propose piecemeal amendments and submit each
separately to the people for ratification, we are nonetheless persuaded that (1) that there is no proper submissionof
title proposed amendment in question within the meaning and intendment of Section 1 of Article XV of the
Constitution, and (2) that the forthcoming election is not the proper election envisioned by the same provision of the
Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on
Elections
1
and Philippine Constitution Association vs. Commission on Elections,
2
expounded his view, with which we
essentially agree, on the minimum requirements that must be met in order that there can be a proper submission to the
people of a proposed constitutional amendment. This is what he said:
... amendments must be fairly laid before the people for their blessing or spurning. The people are
not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity
to mull over the original provisions, compare them with the proposed amendments, and try to reach
a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform citizen of the provisions to be
amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we
are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as intended by the framers of
the Constitution. What the Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within its structural framework
to enlighten the people, educate them with respect to their act of ratification or rejection. For we have
earlier stated, one thing is submission and another is ratification. There must be fair submission,
intelligent consent or rejection." .
The second constitutional objection was given expression by one of the writers of this concurring opinion, in the
following words:
I find it impossible to believe that it was ever intended by its framers that such amendment should be
submitted and ratified by just "a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification", if the concentration of the peoples attention thereon
is to be diverted by other extraneous issues, such as the choice of local and national officials. The
framers of the Constitution, aware of the fundamental character thereof, and of the need of giving it
as much stability as is practicable, could have only meant that any amendments thereto should be
debated, considered and voted upon an election wherein the people could devote undivided
attention to the subject.
4
True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-year old to be
allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of lifes verities that things which
appear to be simple may turn out not to be so simple after all.
A number of doubts or misgivings could conceivably and logically assail the average voter. Why should the voting
age be lowered at all, in the first place? Why should the new voting age be precisely 18 years, and not 19 or 20?
And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-year old so that there is no need of an
educational qualification to entitle him to vote? In this age of permissiveness and dissent, can the 18-year old be
relied upon to vote with judiciousness when the 21-year old, in the past elections, has not performed so well? If the
proposed amendment is voted down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having this particular
proposed amendment ratified at this particular time? Do some of the members of the Convention have future
political plans which they want to begin to subserve by the approval this year of this amendment? If this amendment
is approved, does it thereby mean that the 18-year old should now also shoulder the moral and legal responsibilities
of the 21-year old? Will he be required to render compulsory military service under the colors? Will the age of
contractual consent be reduced to 18 years? If I vote against this amendment, will I not be unfair to my own child
who will be 18 years old, come 1973? .
The above are just samplings from here, there and everywhere from a domain (of searching questions) the
bounds of which are not immediately ascertainable. Surely, many more questions can be added to the already long
litany. And the answers cannot be had except as the questions are debated fully, pondered upon purposefully, and
accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and by election time will not be, sufficiently
informed of the meaning, nature and effects of the proposed constitutional amendment. They have not been
afforded ample time to deliberate thereon conscientiously. They have been and are effectively distracted from a full
and dispassionate consideration of the merits and demerits of the proposed amendment by their traditional
pervasive involvement in local elections and politics. They cannot thus weigh in tranquility the need for and the
wisdom of the proposed amendment.
Upon the above disquisition, it is our considered view that the intendment of the words, "at an election at which the
amendments are submitted to the people for their ratification," embodied in Section 1 of Article XV of the
Constitution, has not been met.
FERNANDO, J ., concurring and dissenting:
There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by clarity and vigor,
its manifestation of fealty to the rule of law couched in eloquent language, that commands assent. As the
Constitution occupies the topmost rank in the hierarchy of legal norms, Congress and Constitutional Convention
alike, no less than this Court, must bow to its supremacy. Thereby constitutionalism asserts itself. With the view I
entertain of what is allowable, if not indeed required by the Constitution, my conformity does not extend as far as the
acceptance of the conclusion reached. The question presented is indeed novel, not being controlled by
constitutional prescription, definite and certain. Under the circumstances, with the express recognition in the
Constitution of the powers of the Constitutional Convention to propose amendments, I cannot discern any objection
to the validity of its action there being no legal impediment that would call for its nullification. Such an approach all
the more commends itself to me considering that what was sought to be done is to refer the matter to the people in
whom, according to our Constitution, sovereignty resides. It is in that sense that, with due respect, I find myself
unable to join my brethren.
I. It is understandable then why the decisive issue posed could not be resolved by reliance on, implicit in the petition
and the answer of intervenors, such concepts as legislative control of the constitutional convention referred to by
petitioner on the one hand or, on the other, the theory of conventional sovereignty favored by intervenors. It is
gratifying to note that during the oral argument of petitioner and counsel for respondents and intervenors, there
apparently was a retreat from such extreme position, all parties, as should be the case, expressly avowing the
primacy of the Constitution, the applicable provision of which as interpreted by this Court, should be controlling on
both Congress and the Convention. It cannot be denied though that in at least one American state, that is
Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised by a constitutional
convention are dependent on a legislative grant, in the absence of any authority conferred directly by the
fundamental law. The result is a convention that is subordinate to the lawmaking body. Its field of competence is
circumscribed. It has to look to the latter for the delimitation of its permissible scope of activity. It is thus made
subordinate to the legislature. Nowhere has such a view been more vigorously expressed than in the Pennsylvania
case of Woods Appeal.
1
Its holding though finds no support under our constitutional provision.
It does not thereby follow that while free from legislative control, a constitutional convention may lay claim to an
attribute sovereign in character. The Constitution is quite explicit that it is to the people, and to the people alone, in
whom sovereignty resides.
2
Such a prerogative is therefore withheld from a convention. It is an agency entrusted with
the responsibility of high import and significance it is true; it is denied unlimited legal competence though. That is what
sovereignty connotes. It has to yield to the superior force of the Constitution. There can then be no basis for the
exaggerated pretension that it is an alter ego of the people. It is to be admitted that there are some American state
decisions, the most notable of which is Sproule v. Fredericks,
3
a Mississippi case, that dates back to 1892, that yield a
different conclusion. The doctrine therein announced cannot bind us. Our Constitution makes clear that the power of a
constitutional convention is not sovereign. It is appropriately termed constituent, limited as it is to the purpose of drafting a
constitution or proposing revision or amendments to one in existence, subject in either case to popular approval.
The view that commends itself for acceptance is that legislature and constitutional convention, alike recognized by
the Constitution, are coordinate, there being no superiority of one over the other. Insofar as the constituent power of
proposing amendments to the Constitution is concerned, a constitutional convention enjoys a wide sphere of
autonomy consistently with the Constitution which can be the only source of valid restriction on its competence. It is
true it is to the legislative body that the call to a convention must proceed, but once convened, it cannot in any wise
be interfered with, much less controlled by Congress. A contrary conclusion would impair its usefulness for the
delicate, and paramount task assigned to it. A convention then is to be looked upon as if it were one of the three
coordinate departments which under the principle of separation of powers is supreme within its field and has
exclusive cognizance of matters properly subject to its jurisdiction. A succinct statement of the appropriate principle
that should govern the relationship between a constitutional convention and a legislative body under American law is
that found in Orfields work. Thus: "The earliest view seems to have been that a convention was absolute. The
convention was sovereign and subject to no restraint. On the other hand, Jameson, whose views have been most
frequently cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd that a
convention, though not sovereign, is a body independent of the legislature; it is bound by the existing constitution,
but not by the acts of the legislature, as to the extent of its constituent power. This view has become increasingly
prevalent in the state decisions."
4
2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion of the Court,
that any limitation on the power the Constitutional, Convention must find its source. I turn to its Article XV. It reads:
"The Congress in joint session assembled, by a vote of three fourths of all the Members of the Senate and of the
House of Representatives voting separately, may propose amendments to this Constitution or call a convention for
that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people for their ratification."
Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal and thereafter
ratification. Thus as to the former, two constituent bodies are provided for, the Congress of the Philippines in the
mode therein provided, and a constitutional convention that may be called into being. Once assembled, a
constitutional convention, like the Congress of the Philippines, possesses in all its plenitude the constituent power.
Inasmuch as Congress may determine what amendments it would have the people ratify and thereafter take all the
steps necessary so that the approval or disapproval of the electorate may be obtained, the convention likewise, to
my mind, should be deemed possessed of all the necessary authority to assure that whatever amendments it seeks
to introduce would be submitted to the people at an election called for that purpose. It would appear to me that to
view the convention as being denied a prerogative which is not withheld from Congress as a constituent body would
be to place it in an inferior category. Such a proposition I do not find acceptable. Congress and constitutional
convention are agencies for submitting proposals under the fundamental law. A power granted to one should not be
denied the other. No justification for such a drastic differentiation either in theory or practice exists.
Such a conclusion has for me the added reinforcement that to require ordinary legislation before the convention
could be enabled to have its proposals voted on by the people would be to place a power in the legislative and
executive branches that could, whether by act or omission, result in the frustration of the amending process. I am
the first to admit that such likelihood is remote, but if such a risk even if minimal could be avoided, it should be,
unless the compelling force of an applicable constitutional provision requires otherwise. Considering that a
constitutional convention is not precluded from imposing additional restrictions on the powers of either the executive
or legislative branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article XV
in such a way that would not sanction such restraint on the authority that must be recognized as vested in a
constitutional convention. There is nothing in such a view that to my mind would collide with a reasonable
interpretation of Article XV. It certainly is one way by which freed from pernicious abstractions, it would be easier to
accommodate a constitution to the needs of an unfolding future. That is to facilitate its being responsive to the
challenge that time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the conclusion that the challenged resolution was well within the
power of the convention. That would be to brush aside the web of unreality spun from a too-restrictive mode of
appraising the legitimate scope of its competence. That would be, for me, to give added vigor and life to the
conferment of authority vested in it, attended by such grave and awesome responsibility.
3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such amendment shall
be valid when submitted and thereafter approved by the majority of the votes cast by the people at an election is a
bar to the proposed submission. It is the conclusion arrived at by my brethren that there is to be only one election
and that therefore the petition must be sustained as only when the convention has finished its work should all
amendments proposed be submitted for ratification. That is not for me, and I say this with respect, the appropriate
interpretation. It is true that the Constitution uses the word "election" in the singular, but that is not decisive. No
undue reliance should be accorded rules of grammar; they do not exert a compelling force in constitutional
interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic of significance
derived from the total context. It could be, if it were not thus, self-defeating. Such a mode of construction does not
commend itself. The words used in the Constitution are not inert; they derive vitality from the obvious purposes at
which they are aimed. Petitioners stress on linguistic refinement, while not implausible does not, for me, carry the
day.
It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not such as was
contemplated in this article. I do not find such contention convincing. The fact that the Constitutional Convention did
seek to consult the wishes of the people by the proposed submission of a tentative amendatory provision is an
argument for its validity. It might be said of course that until impressed with finality, an amendment is not to be
passed upon by the electorate. There is plausibility in such a view. A literal reading of the Constitution would support
it. The spirit that informs it though would not, for me, be satisfied. From its silence I deduce the inference that there
is no repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will. In that
sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent but silently vocal.
What I deem the more important consideration is that while a public official, as an agent, has to locate his source of
authority in either Constitution or statute, the people, as the principal, can only be limited in the exercise of their
sovereign powers by the express terms of the Constitution. A concept to the contrary would to my way of thinking be
inconsistent with the fundamental principle that it is in the people, and the people alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope of its authority, an action to restrain or prohibit
respondent Commission on Elections from conducting the plebiscite does not lie. It should not be lost sight of that
the Commission on Elections in thus being charged with such a duty does not act in its capacity as the constitutional
agency to take charge of all laws relative to the conduct of election. That is a purely executive function vested in it
under Article X of the Constitution.
5
It is not precluded from assisting the Constitutional Convention if pursuant to its
competence to amend the fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to
the electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional Convention Act, it is
not to turn a deaf ear to a summons from the Convention to aid it in the legitimate discharge of its functions.
6
The aforesaid considerations, such as they are, but which for me have a force that I mind myself unable to
overcome, leave me no alternative but to dissent from my brethren, with due acknowledgement of course that from
their basic premises, the conclusion arrived at by them cannot be characterized as in any wise bereft of a
persuasive quality of a high order.
Separate Opinions
MAKALINTAL, J ., reserves his vote
I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on just one ground,
which to be sure achieves the result from the legal and constitutional viewpoint. I entertain grave doubts as to the
validity of the premises postulated and conclusions reached in support of the dispositive portion of the decision.
However, considering the urgent nature of this case, the lack of time to set down at length my opinion on the
particular issue upon which the decision is made to rest, and the fact that a dissent on the said issue would
necessarily be inconclusive unless the other issues raised in the petition are also considered and ruled upon a
task that would be premature and pointless at this time I limit myself to this reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, J J ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and vigorous style.
Like him, we do not express our individual views on the wisdom of the proposed constitutional amendment, which is
not in issue here because it is a matter that properly and exclusively addresses itself to the collective judgment of
the people.
We must, however, articulate two additional objections of constitutional dimension which, although they would seem
to be superfluous because of the reach of the basic constitutional infirmity discussed in extenso in the main opinion,
nevertheless appear to us to be just as fundamental in character and scope.
Assuming that the Constitutional Convention has power to propose piecemeal amendments and submit each
separately to the people for ratification, we are nonetheless persuaded that (1) that there is no proper submissionof
title proposed amendment in question within the meaning and intendment of Section 1 of Article XV of the
Constitution, and (2) that the forthcoming election is not the proper election envisioned by the same provision of the
Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on
Elections
1
and Philippine Constitution Association vs. Commission on Elections,
2
expounded his view, with which we
essentially agree, on the minimum requirements that must be met in order that there can be a proper submission to the
people of a proposed constitutional amendment. This is what he said:
... amendments must be fairly laid before the people for their blessing or spurning. The people are
not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity
to mull over the original provisions, compare them with the proposed amendments, and try to reach
a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform citizen of the provisions to be
amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we
are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as intended by the framers of
the Constitution. What the Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency within its structural framework
to enlighten the people, educate them with respect to their act of ratification or rejection. For we have
earlier stated, one thing is submission and another is ratification. There must be fair submission,
intelligent consent or rejection." .
The second constitutional objection was given expression by one of the writers of this concurring opinion, in the
following words:
I find it impossible to believe that it was ever intended by its framers that such amendment should be
submitted and ratified by just "a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification", if the concentration of the peoples attention thereon
is to be diverted by other extraneous issues, such as the choice of local and national officials. The
framers of the Constitution, aware of the fundamental character thereof, and of the need of giving it
as much stability as is practicable, could have only meant that any amendments thereto should be
debated, considered and voted upon an election wherein the people could devote undivided
attention to the subject.
4
True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-year old to be
allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of lifes verities that things which
appear to be simple may turn out not to be so simple after all.
A number of doubts or misgivings could conceivably and logically assail the average voter. Why should the voting
age be lowered at all, in the first place? Why should the new voting age be precisely 18 years, and not 19 or 20?
And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-year old so that there is no need of an
educational qualification to entitle him to vote? In this age of permissiveness and dissent, can the 18-year old be
relied upon to vote with judiciousness when the 21-year old, in the past elections, has not performed so well? If the
proposed amendment is voted down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having this particular
proposed amendment ratified at this particular time? Do some of the members of the Convention have future
political plans which they want to begin to subserve by the approval this year of this amendment? If this amendment
is approved, does it thereby mean that the 18-year old should now also shoulder the moral and legal responsibilities
of the 21-year old? Will he be required to render compulsory military service under the colors? Will the age of
contractual consent be reduced to 18 years? If I vote against this amendment, will I not be unfair to my own child
who will be 18 years old, come 1973? .
The above are just samplings from here, there and everywhere from a domain (of searching questions) the
bounds of which are not immediately ascertainable. Surely, many more questions can be added to the already long
litany. And the answers cannot be had except as the questions are debated fully, pondered upon purposefully, and
accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and by election time will not be, sufficiently
informed of the meaning, nature and effects of the proposed constitutional amendment. They have not been
afforded ample time to deliberate thereon conscientiously. They have been and are effectively distracted from a full
and dispassionate consideration of the merits and demerits of the proposed amendment by their traditional
pervasive involvement in local elections and politics. They cannot thus weigh in tranquility the need for and the
wisdom of the proposed amendment.
Upon the above disquisition, it is our considered view that the intendment of the words, "at an election at which the
amendments are submitted to the people for their ratification," embodied in Section 1 of Article XV of the
Constitution, has not been met.
FERNANDO, J ., concurring and dissenting:
There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by clarity and vigor,
its manifestation of fealty to the rule of law couched in eloquent language, that commands assent. As the
Constitution occupies the topmost rank in the hierarchy of legal norms, Congress and Constitutional Convention
alike, no less than this Court, must bow to its supremacy. Thereby constitutionalism asserts itself. With the view I
entertain of what is allowable, if not indeed required by the Constitution, my conformity does not extend as far as the
acceptance of the conclusion reached. The question presented is indeed novel, not being controlled by
constitutional prescription, definite and certain. Under the circumstances, with the express recognition in the
Constitution of the powers of the Constitutional Convention to propose amendments, I cannot discern any objection
to the validity of its action there being no legal impediment that would call for its nullification. Such an approach all
the more commends itself to me considering that what was sought to be done is to refer the matter to the people in
whom, according to our Constitution, sovereignty resides. It is in that sense that, with due respect, I find myself
unable to join my brethren.
I. It is understandable then why the decisive issue posed could not be resolved by reliance on, implicit in the petition
and the answer of intervenors, such concepts as legislative control of the constitutional convention referred to by
petitioner on the one hand or, on the other, the theory of conventional sovereignty favored by intervenors. It is
gratifying to note that during the oral argument of petitioner and counsel for respondents and intervenors, there
apparently was a retreat from such extreme position, all parties, as should be the case, expressly avowing the
primacy of the Constitution, the applicable provision of which as interpreted by this Court, should be controlling on
both Congress and the Convention. It cannot be denied though that in at least one American state, that is
Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised by a constitutional
convention are dependent on a legislative grant, in the absence of any authority conferred directly by the
fundamental law. The result is a convention that is subordinate to the lawmaking body. Its field of competence is
circumscribed. It has to look to the latter for the delimitation of its permissible scope of activity. It is thus made
subordinate to the legislature. Nowhere has such a view been more vigorously expressed than in the Pennsylvania
case of Woods Appeal.
1
Its holding though finds no support under our constitutional provision.
It does not thereby follow that while free from legislative control, a constitutional convention may lay claim to an
attribute sovereign in character. The Constitution is quite explicit that it is to the people, and to the people alone, in
whom sovereignty resides.
2
Such a prerogative is therefore withheld from a convention. It is an agency entrusted with
the responsibility of high import and significance it is true; it is denied unlimited legal competence though. That is what
sovereignty connotes. It has to yield to the superior force of the Constitution. There can then be no basis for the
exaggerated pretension that it is an alter ego of the people. It is to be admitted that there are some American state
decisions, the most notable of which is Sproule v. Fredericks,
3
a Mississippi case, that dates back to 1892, that yield a
different conclusion. The doctrine therein announced cannot bind us. Our Constitution makes clear that the power of a
constitutional convention is not sovereign. It is appropriately termed constituent, limited as it is to the purpose of drafting a
constitution or proposing revision or amendments to one in existence, subject in either case to popular approval.
The view that commends itself for acceptance is that legislature and constitutional convention, alike recognized by
the Constitution, are coordinate, there being no superiority of one over the other. Insofar as the constituent power of
proposing amendments to the Constitution is concerned, a constitutional convention enjoys a wide sphere of
autonomy consistently with the Constitution which can be the only source of valid restriction on its competence. It is
true it is to the legislative body that the call to a convention must proceed, but once convened, it cannot in any wise
be interfered with, much less controlled by Congress. A contrary conclusion would impair its usefulness for the
delicate, and paramount task assigned to it. A convention then is to be looked upon as if it were one of the three
coordinate departments which under the principle of separation of powers is supreme within its field and has
exclusive cognizance of matters properly subject to its jurisdiction. A succinct statement of the appropriate principle
that should govern the relationship between a constitutional convention and a legislative body under American law is
that found in Orfields work. Thus: "The earliest view seems to have been that a convention was absolute. The
convention was sovereign and subject to no restraint. On the other hand, Jameson, whose views have been most
frequently cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd that a
convention, though not sovereign, is a body independent of the legislature; it is bound by the existing constitution,
but not by the acts of the legislature, as to the extent of its constituent power. This view has become increasingly
prevalent in the state decisions."
4
2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion of the Court,
that any limitation on the power the Constitutional, Convention must find its source. I turn to its Article XV. It reads:
"The Congress in joint session assembled, by a vote of three fourths of all the Members of the Senate and of the
House of Representatives voting separately, may propose amendments to this Constitution or call a convention for
that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people for their ratification."
Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal and thereafter
ratification. Thus as to the former, two constituent bodies are provided for, the Congress of the Philippines in the
mode therein provided, and a constitutional convention that may be called into being. Once assembled, a
constitutional convention, like the Congress of the Philippines, possesses in all its plenitude the constituent power.
Inasmuch as Congress may determine what amendments it would have the people ratify and thereafter take all the
steps necessary so that the approval or disapproval of the electorate may be obtained, the convention likewise, to
my mind, should be deemed possessed of all the necessary authority to assure that whatever amendments it seeks
to introduce would be submitted to the people at an election called for that purpose. It would appear to me that to
view the convention as being denied a prerogative which is not withheld from Congress as a constituent body would
be to place it in an inferior category. Such a proposition I do not find acceptable. Congress and constitutional
convention are agencies for submitting proposals under the fundamental law. A power granted to one should not be
denied the other. No justification for such a drastic differentiation either in theory or practice exists.
Such a conclusion has for me the added reinforcement that to require ordinary legislation before the convention
could be enabled to have its proposals voted on by the people would be to place a power in the legislative and
executive branches that could, whether by act or omission, result in the frustration of the amending process. I am
the first to admit that such likelihood is remote, but if such a risk even if minimal could be avoided, it should be,
unless the compelling force of an applicable constitutional provision requires otherwise. Considering that a
constitutional convention is not precluded from imposing additional restrictions on the powers of either the executive
or legislative branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article XV
in such a way that would not sanction such restraint on the authority that must be recognized as vested in a
constitutional convention. There is nothing in such a view that to my mind would collide with a reasonable
interpretation of Article XV. It certainly is one way by which freed from pernicious abstractions, it would be easier to
accommodate a constitution to the needs of an unfolding future. That is to facilitate its being responsive to the
challenge that time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the conclusion that the challenged resolution was well within the
power of the convention. That would be to brush aside the web of unreality spun from a too-restrictive mode of
appraising the legitimate scope of its competence. That would be, for me, to give added vigor and life to the
conferment of authority vested in it, attended by such grave and awesome responsibility.
3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such amendment shall
be valid when submitted and thereafter approved by the majority of the votes cast by the people at an election is a
bar to the proposed submission. It is the conclusion arrived at by my brethren that there is to be only one election
and that therefore the petition must be sustained as only when the convention has finished its work should all
amendments proposed be submitted for ratification. That is not for me, and I say this with respect, the appropriate
interpretation. It is true that the Constitution uses the word "election" in the singular, but that is not decisive. No
undue reliance should be accorded rules of grammar; they do not exert a compelling force in constitutional
interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic of significance
derived from the total context. It could be, if it were not thus, self-defeating. Such a mode of construction does not
commend itself. The words used in the Constitution are not inert; they derive vitality from the obvious purposes at
which they are aimed. Petitioners stress on linguistic refinement, while not implausible does not, for me, carry the
day.
It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not such as was
contemplated in this article. I do not find such contention convincing. The fact that the Constitutional Convention did
seek to consult the wishes of the people by the proposed submission of a tentative amendatory provision is an
argument for its validity. It might be said of course that until impressed with finality, an amendment is not to be
passed upon by the electorate. There is plausibility in such a view. A literal reading of the Constitution would support
it. The spirit that informs it though would not, for me, be satisfied. From its silence I deduce the inference that there
is no repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will. In that
sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent but silently vocal.
What I deem the more important consideration is that while a public official, as an agent, has to locate his source of
authority in either Constitution or statute, the people, as the principal, can only be limited in the exercise of their
sovereign powers by the express terms of the Constitution. A concept to the contrary would to my way of thinking be
inconsistent with the fundamental principle that it is in the people, and the people alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope of its authority, an action to restrain or prohibit
respondent Commission on Elections from conducting the plebiscite does not lie. It should not be lost sight of that
the Commission on Elections in thus being charged with such a duty does not act in its capacity as the constitutional
agency to take charge of all laws relative to the conduct of election. That is a purely executive function vested in it
under Article X of the Constitution.
5
It is not precluded from assisting the Constitutional Convention if pursuant to its
competence to amend the fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to
the electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional Convention Act, it is
not to turn a deaf ear to a summons from the Convention to aid it in the legitimate discharge of its functions.
6
The aforesaid considerations, such as they are, but which for me have a force that I mind myself unable to
overcome, leave me no alternative but to dissent from my brethren, with due acknowledgement of course that from
their basic premises, the conclusion arrived at by them cannot be characterized as in any wise bereft of a
persuasive quality of a high order.
Footnotes
1 Under Section 36, Rule 138 as amended, no one may appear as amicus curiae unless invited or
allowed, by the Court.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:
1 L-28196, Nov. 9, 1967, 21 SCRA 774, 816-817.
2 L-28224, Nov. 9, 1967, 21 SCRA 774, 816-817.
3 Per Justice J.B.L. Reyes, concurred by Justices Arsenio P. Dizon, Calixto O. Zaldivar, Fred Ruiz
Castro and Eugenio Angeles.
4 21 SCRA 821.
FERNANDO, J., concurring and dissenting:
1 Woods Appeal, 75 Pa. 59 (1874) cited in Malcolm and Laurel. Cases in Constitutional Law, pp. 1,
4-5 (1936). It was therein stated: "In a governmental and proper sense, law is the highest act of a
peoples sovereignty while their government and Constitution remain unchanged. It is the supreme
will of the people expressed in the forms and by the authority of their Constitution. It is their own
appointed mode through which they govern themselves, and by which they bind themselves. So long
as their frame of government is unchanged in its grant of all legislative power, these laws are
supreme over all subjects unforbidden by the instrument itself. The calling of a convention, and
regulating its action by law, is not forbidden in the Constitution. It is a conceded manner, through
which the people may exercise the rights reserved in the bill of rights. ... The right of the people to
restrain their delegates by law cannot be denied, unless the power to call a convention by law, and
the right of self protection be also denied."
2 According to Sec. 1 of Art. II: "Sovereignty resides in the people and all government authority
emanates from them." .
3 11 So. 472. The following excerpt appears in the opinion: "We have spoken of the constitutional
convention as a sovereign body, and that characterization perfectly defines the correct view, in our
opinion, of the real nature of that august assembly. It is the highest legislative body known to
freemen in a representative government. It is supreme in its sphere. It wields the powers of
sovereignty, specially delegated to it, for the purpose and the occasion, by the whole electoral body,
for the good of the whole commonwealth. The sole limitation upon its powers is that no change in the
form of government shall be done or attempted. The spirit of republicanism must breathe through
every part of the framework, but the particular fashioning of the parts of this framework is confided to
the wisdom the faithfulness, and the patriotism of this great convocation, representing the people in
their sovereignty." The Sproule decision was cited with approval four years later by the Mississippi
Supreme Court anew in Dickson v. State, 20 So. 841. A 1908 decision of the Southern State of
Oklahoma, State v. Scales, 97 P. 584, admitted the controversial character of the Sproule dictum.
4 Orfield on The Amending of the Federal Constitution, 45-46 (1942).
5 According to Sec. 2 of Article X of the Constitution: "The Commission on Elections shall have
exclusive charge of its enforcement and administration of all laws relative to the conduct of elections
and shall exercise all other functions which may be conferred upon it by law." Cf. Abcede v. Imperial,
103 Phil. 136 (1958).
6 "According to Sec. 14 of the 1971 Constitutional Convention Act (1970):"Administration and
Technical Assistance. -- All government entities, agencies and instrumentalities, including the
Senate and House of Representatives, shall place at the disposal of the Convention such personnel
premises, and furniture thereof as can, in their judgment be spared without detriment to public
service, without cost, refund or additional pay."
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their
capacities as founding members of the Peoples Initiative for Reforms, Modernization and Action
(PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF
THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.
DAVIDE, JR., J .:
The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of Court is
the right of the people to directly propose amendments to the Constitution through the system of initiative under
Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention, as this system of
initiative was unknown to the people of this country, except perhaps to a few scholars, before the drafting of the
1987 Constitution. The 1986 Constitutional Commission itself, through the original proponent
1
and the main
sponsor
2
of the proposed Article on Amendments or Revision of the Constitution, characterized this system as
"innovative".
3
Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of proposing amendments to,
or revision of, the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and
(2) by a constitutional convention.
4
For this and the other reasons hereafter discussed, we resolved to give due course to
this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on
Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by
Peoples Initiative" (hereafter, Delfin Petition)
5
wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached "Petition for Initiative on the
1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and
volunteers, in establishing signing stations at the time and on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for Peoples Initiative,
6
a group of citizens
desirous to avail of the system intended to institutionalize people power; that he and the members of the Movement and
other volunteers intend to exercise the power to directly propose amendments to the Constitution granted under Section
2, Article XVII of the Constitution; that the exercise of that power shall be conducted in proceedings under the control and
supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be established
all over the country, with the assistance of municipal election registrars, who shall verify the signatures affixed by
individual signatories; that before the Movement and other volunteers can gather signatures, it is necessary that the time
and dates to be designated for the purpose be first fixed in an order to be issued by the COMELEC; and that to
adequately inform the people of the electoral process involved, it is likewise necessary that the said order, as well as the
Petition on which the signatures shall be affixed, be published in newspapers of general and local circulation, under the
control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article
VI,
7
Section 4 of Article VII,
8
and Section 8 of Article X
9
of the Constitution. Attached to the petition is a copy of a "Petition
for Initiative on the 1987 Constitution"
10
embodying the proposed amendments which consist in the deletion from the
aforecited sections of the provisions concerning term limits, and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT
OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4
OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is signed by at least
twelve per cent of the total number of registered voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE), the
COMELEC, through its Chairman, issued an Order
11
(a) directing Delfin "to cause the publication of the petition,
together with the attached Petition for Initiative on the 1987 Constitution (including the proposal, proposed constitutional
amendment, and the signature form), and the notice of hearing in three (3) daily newspapers of general circulation at his
own expense" not later than 9 December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete Q. Quadra;
representatives of the Peoples Initiative for Reforms, Modernization and Action (PIRMA); intervenor-oppositor
Senator Raul S. Roco, together with his two other lawyers, and representatives of, or counsel for, the Integrated Bar
of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng
Demokratikong Pilipino (LABAN).
12
Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on the
ground that it is not the initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their "memoranda and/or
oppositions/memoranda" within five days.
13
On 18 December 1996, the petitioners herein Senator Miriam Defensor Santiago, Alexander Padilla, and Maria
Isabel Ongpin filed this special civil action for prohibition raising the following arguments:
(1) The constitutional provision on peoples initiative to amend the Constitution can only be
implemented by law to be passed by Congress. No such law has been passed; in fact, Senate Bill
No. 1290 entitled An Act Prescribing and Regulating Constitution Amendments by Peoples Initiative,
which petitioner Senator Santiago filed on 24 November 1995, is still pending before the Senate
Committee on Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the
Constitution, on statutes, and on local legislation. However, it failed to provide any subtitle on
initiative on the Constitution, unlike in the other modes of initiative, which are specifically provided for
in Subtitle II and Subtitle III. This deliberate omission indicates that the matter of peoples initiative to
amend the Constitution was left to some future law. Former Senator Arturo Tolentino stressed this
deficiency in the law in his privilege speech delivered before the Senate in 1994: "There is not a
single word in that law which can be considered as implementing [the provision on constitutional
initiative]. Such implementing provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media. This
indicates that the Act covers only laws and not constitutional amendments because the latter take
effect only upon ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of initiative
on the Constitution and initiative and referendum on national and local laws, is ultra vires insofar
asinitiative on amendments to the Constitution is concerned, since the COMELEC has no power to
provide rules and regulations for the exercise of the right of initiative to amend the Constitution. Only
Congress is authorized by the Constitution to pass the implementing law.
(5) The peoples initiative is limited to amendments to the Constitution, not to revision thereof.
Extending or lifting of term limits constitutes a revision and is, therefore, outside the power of the
peoples initiative.
(6) Finally, Congress has not yet appropriated funds for peoples initiative; neither the COMELEC nor
any other government department, agency, or office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event the
COMELEC grants the Delfin Petition, the peoples initiative spearheaded by PIRMA would entail expenses to the
national treasury for general re-registration of voters amounting to at least P180 million, not to mention the millions
of additional pesos in expenses which would be incurred in the conduct of the initiative itself. Hence, the
transcendental importance to the public and the nation of the issues raised demands that this petition for prohibition
be settled promptly and definitely, brushing aside technicalities of procedure and calling for the admission of a
taxpayers and legislators suit.
14
Besides, there is no other plain, speedy, and adequate remedy in the ordinary course
of law.
On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-extendible
period of ten days from notice; and (b) issued a temporary restraining order, effective immediately and continuing
until further orders, enjoining public respondent COMELEC from proceeding with the Delfin Petition, and private
respondents Alberto and Carmen Pedrosa from conducting a signature drive for peoples initiative to amend the
Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment
15
on the petition. They argue
therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR
GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE
COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE
SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS
VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO
THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING
SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID
BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE
GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY"
PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT IN
ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE
CONSTITUTION. SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290 IS A
DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO
REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET
AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION ON
ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING
GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF
THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290 CONTAINS A PROVISION
DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT."
(SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS
PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION.
IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW
SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-
EXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT
SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY
JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment
16
which starts off with an
assertion that the instant petition is a "knee-jerk reaction to a draft Petition for Initiative on the 1987 Constitution. . . which
is not formally filed yet." What he filed on 6 December 1996 was an "Initiatory Pleading" or "Initiatory Petition," which was
legally necessary to start the signature campaign to amend the Constitution or to put the movement to gather signatures
under COMELEC power and function. On the substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the conduct
of initiative to amend the Constitution. The absence therein of a subtitle for such initiative is not fatal,
since subtitles are not requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to amend
the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as
of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2,
Article IX-C of the Constitution, which grants the COMELEC the power to enforce and administer all
laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and
recall; and (b) Section 20 of R.A. 6735, which empowers the COMELEC to promulgate such rules
and regulations as may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to, the Constitution
because it seeks to alter only a few specific provisions of the Constitution, or more specifically, only
those which lay term limits. It does not seek to reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners estimate of P180 million as
unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it will be
simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will be a priority
government expense because it will be for the exercise of the sovereign power of the people.
In the Comment
17
for the public respondent COMELEC, filed also on 2 January 1997, the Office of the Solicitor General
contends that:
(1) R.A. No. 6735 deals with, inter alia, peoples initiative to amend the Constitution. Its Section 2 on
Statement of Policy explicitly affirms, recognizes, and guarantees that power; and its Section 3,
which enumerates the three systems of initiative, includes initiative on the Constitution and defines
the same as the power to propose amendments to the Constitution. Likewise, its Section 5
repeatedly mentionsinitiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because,
being national in scope, that system of initiative is deemed included in the subtitle on National
Initiative and Referendum; and Senator Tolentino simply overlooked pertinent provisions of the law
when he claimed that nothing therein was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not deal
with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution, not
a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and under
the Omnibus Election Code. The rule-making power of the COMELEC to implement the provisions of
R.A. No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the
aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private respondents through
Atty. Quadra, as well as the latters Manifestation stating that he is the counsel for private respondents Alberto and
Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c) granted the Motion for Intervention
filed on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition in Intervention not later than 20
January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys for
Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was
their Petition in Intervention, which was later replaced by an Amended Petition in Intervention wherein they contend
that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution
because, in the words of Fr. Joaquin Bernas, S.J.,
18
it would involve a change from a political
philosophy that rejects unlimited tenure to one that accepts unlimited tenure; and although the change
might appear to be an isolated one, it can affect other provisions, such as, on synchronization of elections
and on the State policy of guaranteeing equal access to opportunities for public service and prohibiting
political dynasties.
19
Arevision cannot be done by initiative which, by express provision of Section 2 of
Article XVII of the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits provided for all other national
and local elective officials are based on the philosophy of governance, "to open up the political arena
to as many as there are Filipinos qualified to handle the demands of leadership, to break the
concentration of political and economic powers in the hands of a few, and to promote effective
proper empowerment for participation in policy and decision-making for the common good"; hence,
to remove the term limits is to negate and nullify the noble vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-of-interest
situation. Initiative is intended as a fallback position that may be availed of by the people only if they
are dissatisfied with the performance of their elective officials, but not as a premium for good
performance.
20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that implements the
peoples initiative on amendments to the Constitution. It fails to state (a) the proper parties who may file
the petition, (b) the appropriate agency before whom the petition is to be filed, (c) the contents of the
petition, (d) the publication of the same, (e) the ways and means of gathering the signatures of the voters
nationwide and 3% per legislative district, (f) the proper parties who may oppose or question the veracity
of the signatures, (g) the role of the COMELEC in the verification of the signatures and the sufficiency of
the petition, (h) the appeal from any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the
appropriation of funds for such peoples initiative. Accordingly, there being no enabling law, the
COMELEC has no jurisdiction to hear Delfins petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution No.
2300, since the COMELEC is without authority to legislate the procedure for a
peoples initiative under Section 2 of Article XVII of the Constitution. That function exclusively
pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal basis for the
Resolution, as the former does not set a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention.
21
He avers that R.A. No. 6735 is the enabling law that implements the peoples right to initiate constitutional
amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill
and even delivered a sponsorship speech thereon. He likewise submits that the COMELEC was empowered under
Section 20 of that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that the respondent
Commission is without jurisdiction to take cognizance of the Delfin Petition and to order its publication because the said
petition is not the initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC
Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a
petition for initiative which is signedby the required number of registered voters. He also submits that the proponents of a
constitutional amendment cannot avail of the authority and resources of the COMELEC to assist them is securing the
required number of signatures, as the COMELECs role in an initiative on the Constitution is limited to the determination of
the sufficiency of the initiative petition and the call and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention raising the
following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the 1987
Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the
initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the required number of
signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by
Congress or a constitutional convention.
22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK and
MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended
Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP; (c)
requiring the respondents to file within a nonextendible period of five days their Consolidated Comments on the
aforesaid Petitions in Intervention; and (d) requiring LABAN to file its Petition in Intervention within a nonextendible
period of three days from notice, and the respondents to comment thereon within a nonextendible period of five
days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the Court
formulated in light of the allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum and
Appropriating Funds Therefor, was intended to include or cover initiative on amendments to the
Constitution; and if so, whether the Act, as worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing
the Conduct of Initiative on the Constitution, and Initiative and Referendum on National and Local
Laws) regarding the conduct of initiative on amendments to the Constitution is valid, considering the
absence in the law of specific provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local officials, as proposed in the draft
"Petition for Initiative on the 1987 Constitution," would constitute a revision of, or an amendment to,
the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely intended
to obtain an order (a) fixing the time and dates for signature gathering; (b) instructing municipal
election officers to assist Delfins movement and volunteers in establishing signature stations; and
(c) directing or causing the publication of, inter alia, the unsigned proposed Petition for Initiative on
the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a
pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their respective memoranda
within twenty days and requested intervenor Senator Roco to submit copies of the deliberations on House Bill No.
21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and arguments in the
main Petition. It further submits that the COMELEC should have dismissed the Delfin Petition for failure to state a
sufficient cause of action and that the Commissions failure or refusal to do so constituted grave abuse of discretion
amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the House of
Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of stenographic
notes on the proceedings of the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms,
of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in Intervention
of Senator Roco, DIK and MABINI, and IBP.
23
The parties thereafter filed, in due time, their separate memoranda.
24
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears to pose a
prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e., whether it
is proper for this Court to take cognizance of this special civil action when there is a pending case before the
COMELEC. The petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent
Delfin. This being so, it becomes imperative to stop the Comelec from proceeding any further, and
under the Rules of Court, Rule 65, Section 2, a petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction
and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (People v. Vera, supra., p. 84). In this case the writ is
an urgent necessity, in view of the highly divisive and adverse environmental consequences on the
body politic of the questioned Comelec order. The consequent climate of legal confusion and
political instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional law is threatened by the political ambitions
of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution.
25
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition on the
ground that the COMELEC has no jurisdiction or authority to entertain the petition.
26
The COMELEC made no ruling
thereon evidently because after having heard the arguments of Delfin and the oppositors at the hearing on 12 December
1996, it required them to submit within five days their memoranda or oppositions/memoranda.
27
Earlier, or specifically on
6 December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause the publication of the
petition, together with the attached Petition for Initiative, the signature form, and the notice of hearing; and by setting the
case for hearing. The COMELECs failure to act on Rocos motion to dismiss and its insistence to hold on to the petition
rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which provides:
Sec. 2. Petition for prohibition. Where the proceedings of any tribunal, corporation, board, or
person, whether exercising functions judicial or ministerial, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court alleging the facts with certainty and praying that judgment be rendered
commanding the defendant to desist from further proceedings in the action or matter specified
therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin Petition
because the said petition is not supported by the required minimum number of signatures of registered voters.
LABAN also asserts that the COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition,
which does not contain the required number of signatures. In light of these claims, the instant case may likewise be
treated as a special civil action for certiorari under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside
technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr.
28
A partys standing before this Court is a procedural technicality which it may, in the exercise of its
discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers
Cases, this Court brushed aside this technicality because the transcendental importance to the
public of these cases demands that they be settled promptly and definitely, brushing aside, if we
must, technicalities of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book,
29
Joaquin Bernas, a member of the 1986 Constitutional Commission,
stated:
Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending
the Constitution is a mode of amendment which bypasses congressional action, in the last analysis it
still is dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments to the Constitution through the system
of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its
implementation. Stated otherwise, while the Constitution has recognized or granted that right, the people
cannot exercise it if Congress, for whatever reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision proposed
by the Committee on Amendments and Transitory Provisions of the 1986 Constitutional Commission in its
Committee Report No. 7 (Proposed Resolution No. 332).
30
That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in Article___ Section ___of the
Constitution.
31
After several interpellations, but before the period of amendments, the Committee submitted a new
formulation of the concept of initiative which it denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of
the Members of the Commission that pursuant to the mandate given to us last night,
we submitted this afternoon a complete Committee Report No. 7 which embodies the
proposed provision governing the matter of initiative. This is now covered by Section
2 of the complete committee report. With the permission of the Members, may I
quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the registered
voters.
This completes the blanks appearing in the original Committee Report No. 7.
32
The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there
are no details in the provision on how to carry this out. Do we understand, therefore,
that we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as the
legislature does not pass the necessary implementing law on this, this will not
operate?
MR. SUAREZ. That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would have to be
legislated so that the plebiscite could be called. We deemed it best that this matter
be left to the legislature. The Gentleman is right. In any event, as envisioned, no
amendment through the power of initiative can be called until after five years from the
date of the ratification of this Constitution. Therefore, the first amendment that could
be proposed through the exercise of this initiative power would be after five years. It
is reasonably expected that within that five-year period, the National Assembly can
come up with the appropriate rules governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature the details on how this is to
be carried out is it possible that, in effect, what will be presented to the people for
ratification is the work of the legislature rather than of the people? Does this provision
exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the legislature
itself as a body could propose that amendment, maybe individually or collectively, if it
fails to muster the three-fourths vote in order to constitute itself as a constituent
assembly and submit that proposal to the people for ratification through the process
of an initiative.
xxx xxx xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is
to vest constituent power in the people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of
institutionalizing popular participation in the drafting of the Constitution or in the
amendment thereof, but I would have a lot of difficulties in terms of accepting the
draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy
of legal mandate, constituent power has primacy over all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal
values, the Constitution is source of all legal mandates and that therefore we require
a great deal of circumspection in the drafting and in the amendments of the
Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent power we
have a separate article in the constitution that would specifically cover the process
and the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted
now, to again concede to the legislature the process or the requirement of
determining the mechanics of amending the Constitution by peoples initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in the
hands of the National Assembly, not unless we can incorporate into this provision the
mechanics that would adequately cover all the conceivable situations.
33
It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to AMEND
not to REVISE the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary developments this year,
has to be separated from the traditional modes of amending the Constitution as
embodied in Section 1. The committee members felt that this system of initiative
should not extend to the revision of the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on Amendment or Revision.
34
xxx xxx xxx
MS. AQUINO. In which case, I am seriously bothered by providing this process of
initiative as a separate section in the Article on Amendment. Would the sponsor be
amenable to accepting an amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another separate section as
if it were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this
process of initiative is limited to the matter of amendment and should not expand into
a revision which contemplates a total overhaul of the Constitution. That was the
sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;
whereas the process of initiation to amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the Committee.
35
Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide, Jr.,
which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section
2 with the following:
MR. DAVIDE. Madam President, I have modified the proposed amendment after
taking into account the modifications submitted by the sponsor himself and the
honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and
Romulo. The modified amendment in substitution of the proposed Section 2 will now
read as follows: "SECTION 2. AMENDMENTS TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER
Of REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST
BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED
VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment is
reflective of the sense contained in Section 2 of our completed Committee Report
No. 7, we accept the proposed amendment.
36
The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was a
legislative act which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davides amendment, is it possible for the
legislature to set forth certain procedures to carry out the initiative. . .?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioners amendment does not prevent the legislature
from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of
this particular right would be subject to legislation, provided the legislature cannot
determine anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper form for
submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative body must diminish
or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have
discussed be legislated?
MR. DAVIDE. Yes.
37
Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to AMENDMENTS to
NOT REVISION of the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davides proposed amendment
on line 1 refers to "amendment." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision."
38
Commissioner Davide further emphasized that the process of proposing amendments through initiative must be
more rigorous and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is involved
is an amendment to the Constitution. To amend a Constitution would ordinarily
require a proposal by the National Assembly by a vote of three-fourths; and to call a
constitutional convention would require a higher number. Moreover, just to submit the
issue of calling a constitutional convention, a majority of the National Assembly is
required, the import being that the process of amendment must be made more
rigorous and difficult than probably initiating an ordinary legislation or putting an end
to a law proposed by the National Assembly by way of a referendum. I cannot agree
to reducing the requirement approved by the Committee on the Legislative because it
would require another voting by the Committee, and the voting as precisely based on
a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article on the Legislative or on
the National Assembly on plenary sessions.
39
The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which the
Commission approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as
follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT
LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED
VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED
BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE
YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
40
The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July
1986.
41
Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to introduce an
amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the Article was again approved on
Second and Third Readings on 1 August 1986.
42
However, the Committee on Style recommended that the approved Section 2 be amended by changing "percent"
to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second paragraph so that said
paragraph reads: The Congress
43
shall provide for the implementation of the exercise of this right.
44
This amendment
was approved and is the text of the present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2 of Article
XVII of the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right? Those who answer the question in the
affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of the right than through the
passage of a statute or legislative act. This is the essence or rationale of the last minute amendment by the
Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then reading:
The Congress
45
shall by law provide for the implementation of the exercise of this right.
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide for the rules implementing
the exercise of the right. The "rules" means "the details on how [the right] is to be carried out."
46
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the
Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was prepared by
the Committee on Suffrage and Electoral Reforms of the House of Representatives on the basis of two House Bills
referred to it, viz., (a) House Bill No. 497,
47
which dealt with the initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988,
48
which dealt with the subject matter of
House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local Government) and initiative
provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17
49
solely dealt with initiative and referendum
concerning ordinances or resolutions of local government units. The Bicameral Conference Committee consolidated
Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the
Senate
50
and by the House of Representatives.
51
This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the implementation of the
exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an initiative
on amendments to the Constitution. The said section reads:
Sec. 2. Statement and Policy. The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither germane
nor relevant to said section, which exclusively relates to initiative and referendum on national laws and local
laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As pointed
out earlier, initiative on the Constitution is confined only to proposals to AMEND. The people are not
accorded the power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution"
through the system of initiative. They can only do so with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate Bill
No. 17, which solely referred to a statement of policy on local initiative and referendum and appropriately used the
phrases "propose and enact," "approve or reject" and "in whole or in part."
52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution
and mentions it as one of the three systems of initiative, and that Section 5 (Requirements) restates the
constitutional requirements as to the percentage of the registered voters who must submit the proposal. But unlike in
the case of the other systems of initiative, the Act does not provide for the contents of a petition forinitiative on the
Constitution. Section 5, paragraph (c) requires, among other things, statement of the proposed law sought to be
enacted, approved or rejected, amended or repealed, as the case may be. It does not include, as among the
contents of the petition, the provisions of the Constitution sought to be amended, in the case of initiative on the
Constitution. Said paragraph (c) reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or
repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be
legibly written or printed at the top of every page of the petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or repealed"
only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to the
Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and
Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as to the
latter simply means that the main thrust of the Act is initiative and referendum on national and local laws. If
Congress intended R.A. No. 6735 to fully provide for the implementation of the initiative on amendments to the
Constitution, it could have provided for a subtitle therefor, considering that in the order of things, the primacy of
interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far
more important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the subtitle
on National Initiative and Referendum because it is national in scope. Our reading of Subtitle II (National Initiative
and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification is
not based on the scope of the initiative involved, but on its nature and character. It is "national initiative," if what is
proposed to be adopted or enacted is a national law, or a law which only Congress can pass. It is "local initiative" if
what is proposed to be adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the
governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass. This
classification of initiative into national and local is actually based on Section 3 of the Act, which we quote for
emphasis and clearer understanding:
Sec. 3. Definition of terms
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial,
city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should have been a subtitle on initiative on amendments
to the Constitution.
53
A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to the
subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, which
reads:
(b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in
the plebiscite shall become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes cast in an election
called for the purpose shall become effective fifteen (15) days after certification and proclamation of
the Commission. (Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of local
governments; thus:
Sec. 11. Indirect Initiative. Any duly accredited peoples organization, as defined by law, may file a
petition for indirect initiative with the House of Representatives, and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency or
insufficiency of the petition for initiative or referendum, which could be petitions for both national and
localinitiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and Referendum is
misplaced,
54
since the provision therein applies to both national and local initiative and referendum. It reads:
Sec. 18. Authority of Courts. Nothing in this Act shall prevent or preclude the proper courts from
declaring null and void any proposition approved pursuant to this Act for violation of the Constitution
or want of capacity of the local legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the
implementation of initiative and referendum on national and local legislation thereby giving them special attention, it
failed, rather intentionally, to do so on the system of initiative on amendments to the Constitution. Anent the initiative
on national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the
Philippines; and
(f) The effects of the approval or rejection of the proposition.
55
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of registered voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative bodys failure to favorably act thereon, and the invocation of the power of initiative as
a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local government unit concerned as to
whether the required number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for their
approval, which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies.
56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-three
sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative on the Constitution" and
includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of "plebiscite" as the process
by which the proposition in an initiative on the Constitution may be approved or rejected by the people; (d) reiterates
the constitutional requirements as to the number of voters who should sign the petition; and (e) provides for the date
of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the paramount system of initiative. RA. No.
6735 thus delivered a humiliating blow to the system of initiative on amendments to the Constitution by merely
paying it a reluctant lip service.
57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this
substantive matter are fatal and cannot be cured by "empowering" the COMELEC "to promulgate such rules and
regulations as may be necessary to carry out the purposes of [the] Act.
58
The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata
non delegari potest.
59
The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.
60
Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and
regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of permissible
delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in
itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a
standard the limits of which are sufficiently determinate and determinable to which the delegate must conform
in the performance of his functions.
61
A sufficient standard is one which defines legislative policy, marks its limits, maps
out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative
command is to be effected.
62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to
satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON
THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise of
the right of the people to directly propose amendments to the Constitution through the system of initiative. It does
not have that power under R.A. No. 6735. Reliance on the COMELECs power under Section 2(1) of Article IX-C of
the Constitution is misplaced, for the laws and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate legislation is
authorized and which satisfies the "completeness" and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to implement the
right to initiate constitutional amendments, or that it has validly vested upon the COMELEC the power of subordinate
legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or with grave
abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on the
Constitution must be signed by at least 12% of the total number of registered voters of which every legislative district
is represented by at least 3% of the registered voters therein. The Delfin Petition does not contain signatures of the
required number of voters. Delfin himself admits that he has not yet gathered signatures and that the purpose of his
petition is primarily to obtain assistance in his drive to gather signatures. Without the required signatures, the
petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is the initiatory
pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only participation of the
COMELEC or its personnel before the filing of such petition are (1) to prescribe the form of the petition;
63
(2) to issue
through its Election Records and Statistics Office a certificate on the total number of registered voters in each legislative
district;
64
(3) to assist, through its election registrars, in the establishment of signature stations;
65
and (4) to verify,
through its election registrars, the signatures on the basis of the registry list of voters, voters affidavits, and voters
identification cards used in the immediately preceding election.
66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No. 2300, it
cannot be entertained or given cognizance of by the COMELEC. The respondent Commission must have known
that the petition does not fall under any of the actions or proceedings under the COMELEC Rules of Procedure or
under Resolution No. 2300, for which reason it did not assign to the petition a docket number. Hence, the said
petition was merely entered as UND, meaning, undocketed. That petition was nothing more than a mere scrap of
paper, which should not have been dignified by the Order of 6 December 1996, the hearing on 12 December 1996,
and the order directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it, the
COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its time, energy, and
resources.
The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of elective
national and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if
not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been
validly enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept
in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in
complying with the constitutional mandate to provide for the implementation of the right of the people under that
system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and
to have failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on
Elections, but is LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ., concur.
Padilla, J., took no part.
Separate Opinions
PUNO, J ., concurring and dissenting:
I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the
COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and
COMELEC Resolution No. 2300 are legally defective and cannot implement the peoples initiative to amend the
Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to stand on and should be
dismissed. With due respect:
I
First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to the
Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735 should start with the search of the
intent of our lawmakers. A knowledge of this intent is critical for the intent of the legislature is the law and the
controlling factor in its interpretation.
1
Stated otherwise, intent is the essence of the law, the spirit which gives life to its
enactment.
2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to propose
amendments to the Constitution." It ought to be so for this intent is crystal clear from the history of the law which
was a consolidation of House Bill No. 21505
3
and Senate Bill No. 17.
4
Senate Bill No. 17 was entitled "An Act Providing
for a System of Initiative and Referendum and the Exception Therefrom, Whereby People in Local Government Units Can
Directly Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the
Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include peoples initiative to propose amendments to
the Constitution. In checkered contrast, House Bill No. 21505
5
expressly included peoples initiative to amend the
Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks:
6
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ROCO
At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the
proposed measure.
1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935
Constitution saw the application of the principle of separation of powers.
2. While under the parliamentary system of the 1973 Constitution the principle remained applicable,
the 1981 amendments to the Constitution of 1973 ensured presidential dominance over the
Batasang Pambansa.
Constitutional history then saw the shifting and sharing of legislative powers between the Legislature
and the Executive departments. Transcending changes in the exercise of legislative power is the
declaration in the Philippine Constitution that the Philippines is a republican state where sovereignty
resides in the people and all sovereignty emanates from them.
3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to
institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution
recognizes the power of the people, through the system of initiative and referendum.
As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers
since reserve powers are given to the people expressly. Section 32 of the same Article mandates
Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its
legislative powers with the people.
Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the power to
directly propose amendments to the Constitution through initiative, upon petition of at least 12
percent of the total number of registered voters.
Stating that House Bill No. 21505 is the Committees response to the duty imposed on Congress to
implement the exercise by the people of the right to initiative and referendum, Mr. Roco recalled the
beginnings of the system of initiative and referendum under Philippine Law. He cited Section 99 of
the Local Government Code which vests in the barangay assembly the power to initiate legislative
processes, decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all of
which are variations of the power of initiative and referendum. He added that the holding of barangay
plebiscites and referendum are likewise provided in Sections 100 and 101 of the same Code.
Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the subject which he
will later submit to the Secretary of the House be incorporated as part of his sponsorship speech.
He then cited examples of initiative and referendum similar to those contained in the instant Bill
among which are the constitutions of states in the United States which recognize the right of
registered voters to initiate the enactment of any statute or to project any existing law or parts
thereof in a referendum. These states, he said, are Alaska, Alabama, Montana, Massachusets,
Dakota, Oklahoma, Oregon, and practically all other states.
Mr. Roco explained that in certain American states, the kind of laws to which initiative and
referendum apply is also without limitation, except for emergency measures, which are likewise
incorporated in House Bill No. 21505. He added that the procedure provided by the Bill from the
filing of the petition, the requirements of a certain percentage of supporters to present a proposition,
to the submission to electors are substantially similar to the provisions in American laws. Although
an infant in Philippine political structure, the system of initiative and referendum, he said, is a tried
and tested system in other jurisdictions, and the Bill is patterned after American experience.
He further explained that the bill has only 12 sections, and recalled that the Constitutional
Commissioners saw the system of the initiative and referendum as an instrument which can be used
should the legislature show itself to be indifferent to the needs of the people. This is the reason, he
claimed, why now is an opportune time to pass the Bill even as he noted the felt necessity of the
times to pass laws which are necessary to safeguard individual rights and liberties.
At this juncture Mr. Roco explained the process of initiative and referendum as advocated in House
Bill No. 21505. He stated that:
1. Initiative means that the people, on their own political judgment, submit a Bill for the consideration
of the general electorate.
2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the Constitution
once every five years; the initiative to amend statutes approved by Congress; and the initiative to
amend local ordinances.
3. The instant Bill gives a definite procedure and allows the Commission on Elections (COMELEC)
to define rules and regulations on the power of initiative.
4. Referendum means that the legislators seek the consent of the people on measures that they
have approved.
5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of plebiscite by
presenting a petition therefor, but under certain limitations, such as the signing of said petition by at
least 10 percent of the total of registered voters at which every legislative district is represented by at
least three percent of the registered voters thereof. Within 30 days after receipt of the petition, the
COMELEC shall determine the sufficiency of the petition, publish the same, and set the date of the
referendum within 45 to 90-day period.
6. When the matter under referendum or initiative is approved by the required number of votes, it
shall become effective 15 days following the completion of its publication in the Official Gazette.
In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the
peoples call for initiative and referendum and urged the Body to approve House Bill No. 21505.
At this juncture, Mr. Roco also requested that the prepared text of his speech together with the
footnotes be reproduced as part of the Congressional Records.
The same sentiment as to the bills intent to implement peoples initiative to amend the Constitution was
stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his sponsorship
remarks, viz:
7
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy
ever since, especially in the so-called parliament of the streets. A substantial segment of the
population feels, he said, that the form of democracy is there, but not the reality or substance of it
because of the increasingly elitist approach of their representatives to the countrys problem.
Whereupon, Mr. Escudero pointed out that the Constitution has provided a means whereby the
people can exercise the reserved power of initiative to propose amendments to the Constitution, and
requested that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2, Article XVII of the
Constitution be made part of his sponsorship remarks.
Mr. Escudero also stressed that an implementing law is needed for the aforecited Constitutional
provisions. While the enactment of the Bill will give way to strong competition among cause-oriented
and sectoral groups, he continued, it will hasten the politization of the citizenry, aid the government
in forming an enlightened public opinion, and produce more responsive legislation. The passage of
the Bill will also give street parliamentarians the opportunity to articulate their ideas in a democratic
forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that it can be
initially used for the Agrarian Reform Law. He said that the passage of House Bill No. 21505 will
show that the Members can set aside their personal and political consideration for the greater good
of the people.
The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a Bicameral
Conference Committee.
8
In the meeting of the Committee on June 6, 1989,
9
the members agreed that the two
(2) bills should be consolidated and that the consolidated version should include peoples initiative to amend the
Constitution as contemplated by House Bill No. 21505. The transcript of the meeting states:
xxx xxx xxx
CHAIRMAN GONZALES. But at any rate, as I have said, because this is new in our
political system, the Senate decided on a more cautious approach and limiting it only
to the local government units because even with that stage where . . . at least this
has been quite popular, ano? It has been attempted on a national basis. Alright.
There has not been a single attempt. Now, so, kami limitado doon. And, second, we
consider also that it is only fair that the local legislative body should be given a
chance to adopt the legislation bill proposed, right? Iyong sinasabing indirect system
of initiative. If after all, the local legislative assembly or body is willing to adopt it in
full or in toto, there ought to be any reason for initiative, ano for initiative. And,
number 3, we feel that there should be some limitation on the frequency with which it
should be applied. Number 4, na the people, thru initiative, cannot enact any
ordinance that is beyond the scope of authority of the local legislative body,
otherwise, my God, mag-aassume sila ng power that is broader and greater than the
grant of legislative power to the Sanggunians. And Number 5, because of that, then a
proposition which has been the result of a successful initiative can only carry the
force and effect of an ordinance and therefore that should not deprive the court of its
jurisdiction to declare it null and void for want of authority. Ha, di ba? I mean it is
beyond powers of local government units to enact. Iyon ang main essence namin, so
we concentrated on that. And that is why . . . so ang sa inyo naman includes iyon sa
Constitution, amendment to the Constitution eh . . . national laws. Sa amin, if you
insist on that, alright, although we feel na it will in effect become a dead statute.
Alright, and we can agree, we can agree. So ang mangyayari dito, and magiging
basic nito, let us not discuss anymore kung alin and magiging basic bill, ano, whether
it is the Senate Bill or whether it is the House bill. Logically it should be ours
sapagkat una iyong sa amin eh. It is one of the first bills approved by the Senate
kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if
you insist, really iyong features ng national at saka constitutional, okay. ____
gagawin na natin na consolidation of both bills.
HON. ROCO. Yes, we shall consolidate.
CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and
so.
10
When the consolidated bill was presented to the House for approval, then Congressman Roco upon
interpellation by Congressman Rodolfo Albano, again confirmed that it covered peoples initiative to amend
the Constitution. The record of the House Representative states:
11
xxx xxx xxx
THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is
recognized.
MR. ROCO. On the Conference Committee Report on the disagreeing provisions
between Senate Bill No. 21505 which refers to the system providing for the initiative
and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the
House versions, so both versions are totally intact in the bill. The Senators ironically
provided for local initiative and referendum and the House Representatives correctly
provided for initiative and referendum on the Constitution and on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.
MR. ALBANO. I heard the sponsor say that the only difference in the two bills was
that in the Senate version there was a provision for local initiative and referendum,
whereas the House version has none.
MR. ROCO. In fact, the Senate version provide purely for local initiative and
referendum, whereas in the House version, we provided purely for national and
constitutional legislation.
MR. ALBANO. Is it our understanding therefore, that the two provisions were
incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete initiative and referendum both in
the constitutional amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with the provision
of the Constitution whereby it mandates this Congress to enact the enabling law, so
that we shall have a system which can be done every five years. Is it five years in the
provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987
Constitution, it is every five years.
MR. ALBANO. For every five years, Mr. Speaker?
MR. ROCO. Within five years, we cannot have multiple initiatives and referenda.
MR. ALBANO. Therefore, basically, there was no substantial difference between the
two versions?
MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier,
ironically was about local, provincial and municipal legislation.
MR. ALBANO. And the two bills were consolidated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. Thank you, Mr. Speaker.
APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)
THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on Senate
Bill No. 17 and House Bill No. 21505.
Is there any objection? (Silence. The Chair hears none; the motion is approved.
Since it is crystalline that the intent of R.A. No. 6735 is to implement the peoples initiative to amend the
Constitution, it is our bounden duty to interpret the law as it was intended by the legislature. We have ruled
that once intent is ascertained, it must be enforced even if it may not be consistent with the strict letter of the
law and this ruling is as old as the mountain. We have also held that where a law is susceptible of more than
one interpretation, that interpretation which will most tend to effectuate the manifest intent of the legislature
will be adopted.
12
The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to implement the
peoples initiative to amend the Constitution. To be sure, we need not torture the text of said law to reach the
conclusion that it implements peoples initiative to amend the Constitution. R.A. No. 6735 is replete with references
to this prerogative of the people.
First, the policy statement declares:
Sec. 2. Statement of Policy. The power of the people under a system of initiative and referendum
to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances,
or resolutions passed by any legislative body upon compliance with the requirements of this Act is
hereby affirmed, recognized and guaranteed. (emphasis supplied)
Second, the law defines "initiative" as "the power of the people to propose amendments to the constitution or to
propose and enact legislations through an election called for the purpose," and "plebiscite" as "the electoral process
by which an initiative on the Constitution is approved or rejected by the people.
Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section 5(b) states
that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total
number of registered voters as signatories, of which every legislative district must be represented by at least
threeper centum (3%) of the registered voters therein." It also states that "(i)nitiative on the Constitution may be
exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years
thereafter.
Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he proposition in an
initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to
the day of the plebiscite.
It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat its intent
which it itself concedes is to implement peoples initiative to propose amendments to the Constitution. Thus, it
laments that the word "Constitution" is neither germane nor relevant to the policy thrust of section 2 and that the
statutes subtitling is not accurate. These lapses are to be expected for laws are not always written in impeccable
English. Rightly, the Constitution does not require our legislators to be word-smiths with the ability to write bills with
poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good
policy not to refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished
Vicente Francisco
13
reminds us: "Many laws contain words which have not been used accurately. But the use of inapt or
inaccurate language or words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally
true with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be
construed as carrying the meaning the legislature intended that they bear, although such a construction necessitates a
departure from the literal meaning of the words used.
In the same vein, the argument that R.A. No. 7535 does not include peoples initiative to amend the Constitution
simply because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in
statutory construction is that headings prefixed to titles, chapters and sections of a statute may be consulted in aid
of interpretation, but inferences drawn therefrom are entitled to very little weight, and they can never control the
plain terms of the enacting clauses.
14
All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit of R.A.
No. 6735 to implement the peoples initiative to amend the Constitution. It blatantly disregards the rule cast in
concrete that the letter of the law must yield to its spirit for the letter of the law is its body but its spirit is its soul.
15
II
COMELEC Resolution No. 2300,
16
promulgated under the stewardship of Commissioner Haydee Yorac, then its Acting
Chairman, spelled out the procedure on how to exercise the peoples initiative to amend the Constitution. This is in accord
with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The
Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the
purposes of this Act." By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez
v. Auditor General,
17
this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine whether
there is undue delegation of legislative power, viz:
xxx xxx xxx
Although Congress may delegate to another branch of the Government the power to fill details in the
execution, enforcement or administration of a law, it is essential, to forestall a violation of the
principle of separation of powers, that said law: (a) be complete in itself it must set forth therein
the policy to be executed, carried out or implemented by the delegate and (b) to fix standard
the limits of which are sufficiently determinate or determinable to which the delegate must
conform in the performance of his functions. Indeed, without a statutory declaration of policy, which
is the essence of every law, and, without the aforementioned standard, there would be no means to
determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of
his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law,
but, also and this is worse to unmake it, by adopting measures inconsistent with the end
sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers
and the system of checks and balances, and, consequently, undermining the very foundation of our
republican system.
Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a
valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any
policy to be carried out or implemented by the President. Neither does it give a standard sufficiently
precise to avoid the evil effects above referred to.
R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the laws
implementing rules and regulations of the law. As aforestated, section 2 spells out the policy of the law; viz: "The
power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in
whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance
with the requirements of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735
are the standards to canalize the delegated power to the COMELEC to promulgate rules and regulations from
overflowing. Thus, the law states the number of signatures necessary to start a peoples initiative,
18
directs how
initiative proceeding is commenced,
19
what the COMELEC should do upon filing of the petition for initiative,
20
how a
proposition is approved,
21
when a plebiscite may be held,
22
when the amendment takes effect
23
and what matters may
not be the subject of any initiative.
24
By any measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out the boundaries
of the delegates authority by defining the legislative policy and indicating the circumstances under which it is to be
pursued and effected. The purpose of the sufficient standard is to prevent a total transference of legislative power
from the lawmaking body to the delegate."
25
In enacting R.A. No. 6735, it cannot be said that Congress totally
transferred its power to enact the law implementing peoples initiative to COMELEC. A close look at COMELEC
Resolution No. 2300 will show that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to
the peoples initiative to amend the Constitution. The debates
26
in the Constitutional Commission make it clear that the
rules of procedure to enforce the peoples initiative can be delegated, thus:
MR. ROMULO. Under Commissioner Davides amendment, it is possible for the
legislature to set forth certain procedures to carry out the initiative. . . ?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioners amendment does not prevent the legislature
from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of
this particular right would be subject to legislation, provided the legislature cannot
determine anymore the percentage of the requirement.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative body must diminish
or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have
discussed be legislated?
MR. DAVIDE. Yes.
In his book, The Intent of the 1986 Constitution Writers,
27
Father Bernas likewise affirmed: "In response to
questions of Commissioner Romulo, Davide explained the extent of the power of the legislature over the process:
it could for instance, prescribe the proper form before (the amendment) is submitted to the people, it could
authorize another body to check the proper form. It could also authorize the COMELEC, for instance, to check the
authenticity of the signatures of petitioners. Davide concluded: As long as it will not destroy the substantive right
to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair
the right conceded here." Quite clearly, the prohibition against the legislature is to impair the substantive right of
the people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the procedure
to enforce the peoples right of initiative or to delegate it to another body like the COMELEC with proper standard.
A survey of our case law will show that this Court has prudentially refrained from invalidating administrative rules on
the ground of lack of adequate legislative standard to guide their promulgation. As aptly perceived by former Justice
Cruz, "even if the law itself does not expressly pinpoint the standard, the courts will bend backward to locate the
same elsewhere in order to spare the statute, if it can, from constitutional infirmity."
28
He cited the ruling
in Hirabayashi v. United States,
29
viz:
xxx xxx xxx
It is true that the Act does not in terms establish a particular standard to which orders of the military
commander are to conform, or require findings to be made as a prerequisite to any order. But the
Executive Order, the Proclamations and the statute are not to be read in isolation from each other.
They were parts of a single program and must be judged as such. The Act of March 21, 1942, was
an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order the necessity of protecting
military resources in the designated areas against espionage and sabotage.
In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at the law
cannot miss them. They were not written by our legislators in invisible ink. The policy and standards can also
be found in no less than section 2, Article XVII of the Constitution on Amendments or Revisions. There is
thus no reason to hold that the standards provided for in R.A. No. 6735 are insufficient for in other cases we
have upheld as adequate more general standards such as "simplicity and dignity,"
30
"public interest,"
31
"public
welfare,"
32
"interest of law and order,"
33
"justice and equity,"
34
"adequate and efficient instruction,"
35
"public
safety,"
36
"public policy",
37
"greater national interest",
38
"protect the local consumer by stabilizing and subsidizing
domestic pump rates",
39
and "promote simplicity, economy and efficiency in government."
40
A due regard and
respect to the legislature, a co-equal and coordinate branch of government, should counsel this Court to refrain
from refusing to effectuate laws unless they are clearly unconstitutional.
III
It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The inclusion of
the Pedrosas in the petition is utterly baseless. The records show that the case at bar started when respondent
Delfin alone and by himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term Limits of
Elective Officials by Peoples Initiative. The Pedrosas did not join the petition. It was Senator Roco who moved to
intervene and was allowed to do so by the COMELEC. The petition was heard and before the COMELEC could
resolve the Delfin petition, the case at bar was filed by the petitioners with this Court. Petitioners sued the
COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the
Peoples Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for prohibition with
prayer for temporary restraining order and/or writ of preliminary injunction.
The petition on its face states no cause of action against the Pedrosas. The only allegation against the Pedrosas is
that they are founding members of the PIRMA which proposes to undertake the signature drive for peoples initiative
to amend the Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a respondent.
Petitioners then prayed that we order the Pedrosas ". . . to desist from conducting a signature drive for a peoples
initiative to amend the Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from
conducting a signature drive for peoples initiative to amend the Constitution." It is not enough for the majority to lift
the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions for contempt
against them without equivocation.
One need not draw a picture to impart the proposition that in soliciting signatures to start a peoples initiative to
amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of signatures is a right
guaranteed in black and white by section 2 of Article XVII of the Constitution which provides that ". . . amendments
to this Constitution may likewise be directly proposed by the people through initiative. . ." This right springs from the
principle proclaimed in section 1, Article II of the Constitution that in a democratic and republican state "sovereignty
resides in the people and all government authority emanates from them." The Pedrosas are part of the people and
their voice is part of the voice of the people. They may constitute but a particle of our sovereignty but no power can
trivialize them for sovereignty is indivisible.
But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their
organizations to effective and reasonable participation at all levels of social, political and economic decision-making
shall not be abridged. The State shall by law, facilitate the establishment of adequate consultation mechanisms."
This is another novel provision of the 1987 Constitution strengthening the sinews of the sovereignty of our people. In
soliciting signatures to amend the Constitution, the Pedrosas are participating in the political decision-making
process of our people. The Constitution says their right cannot be abridged without any ifs and buts. We cannot put
a question mark on their right.
Over and above these new provisions, the Pedrosas campaign to amend the Constitution is an exercise of their
freedom of speech and expression and their right to petition the government for redress of grievances. We have
memorialized this universal right in all our fundamental laws from the Malolos Constitution to the 1987 Constitution.
We have iterated and reiterated in our rulings that freedom of speech is a preferred right, the matrix of other
important rights of our people. Undeniably, freedom of speech enervates the essence of the democratic creed of
think and let think. For this reason, the Constitution encourages speech even if it protects the speechless.
It is thus evident that the right of the Pedrosas to solicit signatures to start a peoples initiative to amend the
Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no
Constitution can chain the people to an undesirable status quo. To be sure, there are no irrepealable laws just as
there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change.
Mankind has long recognized the truism that the only constant in life is change and so should the majority.
IV
In a stream of cases, this Court has rhapsodized people power as expanded in the 1987 Constitution. On October 5,
1993, we observed that peoples might is no longer a myth but an article of faith in our Constitution.
41
On September
30, 1994, we postulated that people power can be trusted to check excesses of government and that any effort to trivialize
the effectiveness of peoples initiatives ought to be rejected.
42
On September 26, 1996, we pledged that ". . . this Court as
a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate exercise."
43
Just a few
days ago, or on March 11, 1997, by a unanimous decision,
44
we allowed a recall election in Caloocan City involving the
mayor and ordered that he submits his right to continue in office to the judgment of the tribunal of the people. Thus far, we
have succeeded in transforming people power from an opaque abstraction to a robust reality. The Constitution calls us to
encourage people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to amend the
Constitution without setting back the flowering of people empowerment. More important, the Court cannot seal the lips of
people who are pro-change but not those who are anti-change without concerting the debate on charter change into a
sterile talkaton. Democracy is enlivened by a dialogue and not by a monologue for in a democracy nobody can claim any
infallibility.
Melo and Mendoza, JJ., concur.
VITUG, J ., concurring and dissenting:
The COMELEC should have dismissed, outrightly, the Delfin Petition.
It does seem to me that there is no real exigency on the part of the Court to engross, let alone to commit, itself on all
the issues raised and debated upon by the parties. What is essential at this time would only be to resolve whether or
not the petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his capacity as a "founding member of
the Movement for Peoples Initiative" and seeking through a people initiative certain modifications on the 1987
Constitution, can properly be regarded and given its due course. The Constitution, relative to any proposed
amendment under this method, is explicit. Section 2, Article XVII, thereof provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives, the petition
would rather have much of its burden passed on, in effect, to the COMELEC. The petition would require COMELEC
to schedule "signature gathering all over the country," to cause the necessary publication of the petition "in
newspapers of general and local circulation," and to instruct "Municipal Election Registrars in all Regions of the
Philippines to assist petitioners and volunteers in establishing signing stations at the time and on the dates
designated for the purpose.
I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made permanent under
theponencia should be held to cover only the Delfin petition and must not be so understood as having intended or
contemplated to embrace the signature drive of the Pedrosas. The grant of such a right is clearly implicit in the
constitutional mandate on people initiative.
The distinct greatness of a democratic society is that those who reign are the governed themselves. The postulate is
no longer lightly taken as just a perceived myth but a veritable reality. The past has taught us that the vitality of
government lies not so much in the strength of those who lead as in the consent of those who are led. The role of
free speech is pivotal but it can only have its true meaning if it comes with the correlative end of being heard.
Pending a petition for a peoples initiative that is sufficient in form and substance, it behooves the Court, I most
respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No. 6735 has effectively
and sufficiently implemented the Constitutional provision on right of the people to directly propose constitutional
amendments. Any opinion or view formulated by the Court at this point would at best be only a non-
binding, albeit possibly persuasive, obiter dictum.
I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued by the Court did
not prescribe the exercise by the Pedrosas of their right to campaign for constitutional amendments.
FRANCISCO, J ., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and well-written
ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is inadequate to cover the system of
initiative on amendments to the Constitution.
To begin with, sovereignty under the constitution, resides in the people and all government authority emanates from
them.
1
Unlike our previous constitutions, the present 1987 Constitution has given more significance to this declaration of
principle for the people are now vested with power not only to propose, enact or reject any act or law passed by Congress
or by the local legislative body, but to propose amendments to the constitution as well.
2
To implement these constitutional
edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act". This
law, to my mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based
principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their allegation that:
Republic Act No. 6735 provides for the effectivity of the law after publication in print media. [And]
[t]his indicates that Republic Act No. 6735 covers only laws and not constitutional amendments,
because constitutional amendments take effect upon ratification not after publication.
3
which allegation manifests petitioners selective interpretation of the law, for under Section 9 of Republic Act
No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b) thereof is clear in providing
that:
The proposition in an initiative on the constitution approved by a majority of the votes cast in the plebiscite shall
become effective as to the day of the plebiscite.
It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every part of the
statute must be construed together with the other parts and kept subservient to the general intent of the whole
enactment.
4
Thus, the provisions of Republic Act No. 6735 may not be interpreted in isolation. The legislative intent
behind every law is to be extracted from the statute as a whole.
5
In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to propose
amendments to the constitution or to propose and enact legislations through an election called for the purpose".
6
The
same section, in enumerating the three systems of initiative, included an "initiative on the constitution which refers to a
petition proposing amendments to the constitution"
7
Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral
process by which an initiative on the constitution is approved or rejected by the people" And as to the material
requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following:
A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the
total number of the registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein. Initiative on the
constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution
and only once every five years thereafter.
These provisions were inserted, on purpose, by Congress the intent being to provide for the implementation
of the right to propose an amendment to the Constitution by way of initiative. "A legal provision", the Court
has previously said, "must not be construed as to be a useless surplusage, and accordingly, meaningless, in
the sense of adding nothing to the law or having no effect whatsoever thereon".
8
That this is the legislative
intent is further shown by the deliberations in Congress, thus:
. . . More significantly, in the course of the consideration of the Conference Committee Report on the
disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was noted:
MR. ROCO. On the Conference Committee Report on the disagreeing provisions
between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers
to the system providing for the initiative and referendum, fundamentally, Mr. Speaker,
we consolidated the Senate and the House versions, so both versions are totally
intact in the bill. The Senators ironically provided for local initiative and referendum
and the House of Representatives correctly provided for initiative and referendum an
the Constitution and on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO, Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. What does the sponsor say?
MR. ROCO. Willingly, Mr. Speaker.
THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.
MR. ALBANO. I heard the sponsor say that the only difference in the two bills was
that in the Senate version there was a provision for local initiative and referendum,
whereas the House version has none.
MR. ROCO. In fact, the Senate version provided purely for local initiative and
referendum, whereas in the House version, we provided purely for national and
constitutional legislation.
MR. ALBANO. Is it our understanding, therefore, that the two provisions were
incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete initiative and referendum both in
the constitutional amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with the provision
of the Constitution to enact the enabling law, so that we shall have a system which
can be done every five years. Is it five years in the provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987
Constitution, it is every five years." (Id. [Journal and Record of the House of
Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237
SCRA 279, 292-293 [1994]; emphasis supplied)
. . . The Senate version of the Bill may not have comprehended initiatives on the Constitution. When
consolidated, though, with the House version of the Bill and as approved and enacted into law, the
proposal included initiative on both the Constitution and ordinary laws.
9
Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction as what
petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the enactment.
At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any action (such as
those contained in the Commissions orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative
of its having already assumed jurisdiction over private respondents petition. This is so because from the tenor of
Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of the required percentage of registered
voters at the time the petition for initiative is filed, is a jurisdictional requirement.
Thus:
A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the
total number of registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein. Initiative on the
Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter.
Here private respondents petition is unaccompanied by the required signatures. This defect
notwithstanding, it is without prejudice to the refiling of their petition once compliance with the required
percentage is satisfactorily shown by private respondents. In the absence, therefore, of an appropriate
petition before the Commission on Elections, any determination of whether private respondents proposal
constitutes an amendment or revision is premature.
ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an "inadequate"
legislation to cover a peoples initiative to propose amendments to the Constitution. I, however, register my
concurrence with the dismissal, in the meantime, of private respondents petition for initiative before public
respondent Commission on Elections until the same be supported by proof of strict compliance with Section 5 (b) of
R.A. No. 6735.
Melo and Mendoza, JJ., concur.
PANGANIBAN, J ., concurring and dissenting:
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:
(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin
Petition.
(2) While the Constitution allows amendments to "be directly proposed by the people through initiative," there is no
implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned."
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of initiative on
amendments to the Constitution, is void."
I concur with the first item above. Until and unless an initiatory petition can show the required number of signatures
in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district no
public funds may be spent and no government resources may be used in an initiative to amend the Constitution.
Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully
from the majoritys two other rulings. Let me explain.
Under the above restrictive holdings espoused by the Courts majority, the Constitution cannot be amended at all
through a peoples initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country
acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the
peoples right to change the basic law. At the very least, the majority holds the right hostage to congressional
discretion on whether to pass a new law to implement it, when there is already one existing at present. This right to
amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.
With all due respect, I find the majoritys position all too sweeping and all too extremist. It is equivalent to burning the
whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the
Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of
initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a
ban against its proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason.
Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300 Are
Sufficient to Implement Constitutional Initiatives
While RA 6735 may not be a perfect law, it was as the majority openly concedes intended by the legislature to
cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution.
1
I
completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J.
Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments
to the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Courts
unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections,
2
that "provisions for
initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the
voters of the rights granted thereby"; and in Garcia vs. Comelec,
3
that any "effort to trivialize the effectiveness of peoples
initiatives ought to be rejected."
No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735 wisely
empowered
4
the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out
the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such
Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and
referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of
Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama
and Magdara B. Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission,
and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to give life to a
cherished right of our people.
The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in
reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for
the Resolution is the same law, RA 6735.
I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII,
Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and
realize our peoples power to amend the Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18
December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of
initiative. In fact, I believe that such restraining order as against private respondents should not have been issued, in
the first place. While I agree that the Comelec should be stopped from using public funds and government resources
to help them gather signatures, I firmly believe that this Court has no power to restrain them from exercising their
right of initiative. The right to propose amendments to the Constitution is really a species of the right of free speech
and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking freely and
persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may disagree with what you
say, but I will defend to the death your right to say it." After all, freedom is not really for the thought we agree with,
but as Justice Holmes wrote, "freedom for the thought that we hate."
5
Epilogue
By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is
a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-
admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty.
They are sacred democratic rights of our people to be used as their final weapons against political excesses,
opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency,
accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be
resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent
Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other grounds
relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar
as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in
proposing amendments to the Constitution.
Melo and Mendoza, JJ., concur.
Separate Opinions
PUNO, J ., concurring and dissenting:
I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the
COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and
COMELEC Resolution No. 2300 are legally defective and cannot implement the peoples initiative to amend the
Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to stand on and should be
dismissed. With due respect:
I
First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to the
Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735 should start with the search of the
intent of our lawmakers. A knowledge of this intent is critical for the intent of the legislature is the law and the
controlling factor in its interpretation.
1
Stated otherwise, intent is the essence of the law, the spirit which gives life to its
enactment.
2
Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to propose
amendments to the Constitution." It ought to be so for this intent is crystal clear from the history of the law which
was a consolidation of House Bill No. 21505
3
and Senate Bill No. 17.
4
Senate Bill No. 17 was entitled "An Act Providing
for a System of Initiative and Referendum and the Exception Therefrom, Whereby People in Local Government Units Can
Directly Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the
Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include peoples initiative to propose amendments to
the Constitution. In checkered contrast, House Bill No. 21505
5
expressly included peoples initiative to amend the
Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks:
6
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ROCO
At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the
proposed measure.
1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935
Constitution saw the application of the principle of separation of powers.
2. While under the parliamentary system of the 1973 Constitution the principle remained applicable,
the 1981 amendments to the Constitution of 1973 ensured presidential dominance over the
Batasang Pambansa.
Constitutional history then saw the shifting and sharing of legislative powers between the Legislature
and the Executive departments. Transcending changes in the exercise of legislative power is the
declaration in the Philippine Constitution that the Philippines is a republican state where sovereignty
resides in the people and all sovereignty emanates from them.
3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to
institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution
recognizes the power of the people, through the system of initiative and referendum.
As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers
since reserve powers are given to the people expressly. Section 32 of the same Article mandates
Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its
legislative powers with the people.
Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the power to
directly propose amendments to the Constitution through initiative, upon petition of at least 12
percent of the total number of registered voters.
Stating that House Bill No. 21505 is the Committees response to the duty imposed on Congress to
implement the exercise by the people of the right to initiative and referendum, Mr. Roco recalled the
beginnings of the system of initiative and referendum under Philippine Law. He cited Section 99 of
the Local Government Code which vests in the barangay assembly the power to initiate legislative
processes, decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all of
which are variations of the power of initiative and referendum. He added that the holding of barangay
plebiscites and referendum are likewise provided in Sections 100 and 101 of the same Code.
Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the subject which he
will later submit to the Secretary of the House be incorporated as part of his sponsorship speech.
He then cited examples of initiative and referendum similar to those contained in the instant Bill
among which are the constitutions of states in the United States which recognize the right of
registered voters to initiate the enactment of any statute or to project any existing law or parts
thereof in a referendum. These states, he said, are Alaska, Alabama, Montana, Massachusets,
Dakota, Oklahoma, Oregon, and practically all other states.
Mr. Roco explained that in certain American states, the kind of laws to which initiative and
referendum apply is also without limitation, except for emergency measures, which are likewise
incorporated in House Bill No. 21505. He added that the procedure provided by the Bill from the
filing of the petition, the requirements of a certain percentage of supporters to present a proposition,
to the submission to electors are substantially similar to the provisions in American laws. Although
an infant in Philippine political structure, the system of initiative and referendum, he said, is a tried
and tested system in other jurisdictions, and the Bill is patterned after American experience.
He further explained that the bill has only 12 sections, and recalled that the Constitutional
Commissioners saw the system of the initiative and referendum as an instrument which can be used
should the legislature show itself to be indifferent to the needs of the people. This is the reason, he
claimed, why now is an opportune time to pass the Bill even as he noted the felt necessity of the
times to pass laws which are necessary to safeguard individual rights and liberties.
At this juncture Mr. Roco explained the process of initiative and referendum as advocated in House
Bill No. 21505. He stated that:
1. Initiative means that the people, on their own political judgment, submit a Bill for the consideration
of the general electorate.
2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the Constitution
once every five years; the initiative to amend statutes approved by Congress; and the initiative to
amend local ordinances.
3. The instant Bill gives a definite procedure and allows the Commission on Elections (COMELEC)
to define rules and regulations on the power of initiative.
4. Referendum means that the legislators seek the consent of the people on measures that they
have approved.
5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of plebiscite by
presenting a petition therefor, but under certain limitations, such as the signing of said petition by at
least 10 percent of the total of registered voters at which every legislative district is represented by at
least three percent of the registered voters thereof. Within 30 days after receipt of the petition, the
COMELEC shall determine the sufficiency of the petition, publish the same, and set the date of the
referendum within 45 to 90-day period.
6. When the matter under referendum or initiative is approved by the required number of votes, it
shall become effective 15 days following the completion of its publication in the Official Gazette.
In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the
peoples call for initiative and referendum and urged the Body to approve House Bill No. 21505.
At this juncture, Mr. Roco also requested that the prepared text of his speech together with the
footnotes be reproduced as part of the Congressional Records.
The same sentiment as to the bills intent to implement peoples initiative to amend the Constitution was
stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his sponsorship
remarks, viz:
7
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy
ever since, especially in the so-called parliament of the streets. A substantial segment of the
population feels, he said, that the form of democracy is there, but not the reality or substance of it
because of the increasingly elitist approach of their representatives to the countrys problem.
Whereupon, Mr. Escudero pointed out that the Constitution has provided a means whereby the
people can exercise the reserved power of initiative to propose amendments to the Constitution, and
requested that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2, Article XVII of the
Constitution be made part of his sponsorship remarks.
Mr. Escudero also stressed that an implementing law is needed for the aforecited Constitutional
provisions. While the enactment of the Bill will give way to strong competition among cause-oriented
and sectoral groups, he continued, it will hasten the politization of the citizenry, aid the government
in forming an enlightened public opinion, and produce more responsive legislation. The passage of
the Bill will also give street parliamentarians the opportunity to articulate their ideas in a democratic
forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that it can be
initially used for the Agrarian Reform Law. He said that the passage of House Bill No. 21505 will
show that the Members can set aside their personal and political consideration for the greater good
of the people.
The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a Bicameral
Conference Committee.
8
In the meeting of the Committee on June 6, 1989,
9
the members agreed that the two
(2) bills should be consolidated and that the consolidated version should include peoples initiative to amend the
Constitution as contemplated by House Bill No. 21505. The transcript of the meeting states:
xxx xxx xxx
CHAIRMAN GONZALES. But at any rate, as I have said, because this is new in our
political system, the Senate decided on a more cautious approach and limiting it only
to the local government units because even with that stage where . . . at least this
has been quite popular, ano? It has been attempted on a national basis. Alright.
There has not been a single attempt. Now, so, kami limitado doon. And, second, we
consider also that it is only fair that the local legislative body should be given a
chance to adopt the legislation bill proposed, right? Iyong sinasabing indirect system
of initiative. If after all, the local legislative assembly or body is willing to adopt it in
full or in toto, there ought to be any reason for initiative, ano for initiative. And,
number 3, we feel that there should be some limitation on the frequency with which it
should be applied. Number 4, na the people, thru initiative, cannot enact any
ordinance that is beyond the scope of authority of the local legislative body,
otherwise, my God, mag-aassume sila ng power that is broader and greater than the
grant of legislative power to the Sanggunians. And Number 5, because of that, then a
proposition which has been the result of a successful initiative can only carry the
force and effect of an ordinance and therefore that should not deprive the court of its
jurisdiction to declare it null and void for want of authority. Ha, di ba? I mean it is
beyond powers of local government units to enact. Iyon ang main essence namin, so
we concentrated on that. And that is why . . . so ang sa inyo naman includes iyon sa
Constitution, amendment to the Constitution eh . . . national laws. Sa amin, if you
insist on that, alright, although we feel na it will in effect become a dead statute.
Alright, and we can agree, we can agree. So ang mangyayari dito, and magiging
basic nito, let us not discuss anymore kung alin and magiging basic bill, ano, whether
it is the Senate Bill or whether it is the House bill. Logically it should be ours
sapagkat una iyong sa amin eh. It is one of the first bills approved by the Senate
kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if
you insist, really iyong features ng national at saka constitutional, okay. ____
gagawin na natin na consolidation of both bills.
HON. ROCO. Yes, we shall consolidate.
CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and
so.
10
When the consolidated bill was presented to the House for approval, then Congressman Roco upon
interpellation by Congressman Rodolfo Albano, again confirmed that it covered peoples initiative to amend
the Constitution. The record of the House Representative states:
11
xxx xxx xxx
THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is
recognized.
MR. ROCO. On the Conference Committee Report on the disagreeing provisions
between Senate Bill No. 21505 which refers to the system providing for the initiative
and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the
House versions, so both versions are totally intact in the bill. The Senators ironically
provided for local initiative and referendum and the House Representatives correctly
provided for initiative and referendum on the Constitution and on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.
MR. ALBANO. I heard the sponsor say that the only difference in the two bills was
that in the Senate version there was a provision for local initiative and referendum,
whereas the House version has none.
MR. ROCO. In fact, the Senate version provide purely for local initiative and
referendum, whereas in the House version, we provided purely for national and
constitutional legislation.
MR. ALBANO. Is it our understanding therefore, that the two provisions were
incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete initiative and referendum both in
the constitutional amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with the provision
of the Constitution whereby it mandates this Congress to enact the enabling law, so
that we shall have a system which can be done every five years. Is it five years in the
provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987
Constitution, it is every five years.
MR. ALBANO. For every five years, Mr. Speaker?
MR. ROCO. Within five years, we cannot have multiple initiatives and referenda.
MR. ALBANO. Therefore, basically, there was no substantial difference between the
two versions?
MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier,
ironically was about local, provincial and municipal legislation.
MR. ALBANO. And the two bills were consolidated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. Thank you, Mr. Speaker.
APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)
THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on Senate
Bill No. 17 and House Bill No. 21505.
Is there any objection? (Silence. The Chair hears none; the motion is approved.
Since it is crystalline that the intent of R.A. No. 6735 is to implement the peoples initiative to amend the
Constitution, it is our bounden duty to interpret the law as it was intended by the legislature. We have ruled
that once intent is ascertained, it must be enforced even if it may not be consistent with the strict letter of the
law and this ruling is as old as the mountain. We have also held that where a law is susceptible of more than
one interpretation, that interpretation which will most tend to effectuate the manifest intent of the legislature
will be adopted.
12
The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to implement the
peoples initiative to amend the Constitution. To be sure, we need not torture the text of said law to reach the
conclusion that it implements peoples initiative to amend the Constitution. R.A. No. 6735 is replete with references
to this prerogative of the people.
First, the policy statement declares:
Sec. 2. Statement of Policy. The power of the people under a system of initiative and referendum
to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances,
or resolutions passed by any legislative body upon compliance with the requirements of this Act is
hereby affirmed, recognized and guaranteed. (emphasis supplied)
Second, the law defines "initiative" as "the power of the people to propose amendments to the constitution or to
propose and enact legislations through an election called for the purpose," and "plebiscite" as "the electoral process
by which an initiative on the Constitution is approved or rejected by the people.
Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section 5(b) states
that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total
number of registered voters as signatories, of which every legislative district must be represented by at least
threeper centum (3%) of the registered voters therein." It also states that "(i)nitiative on the Constitution may be
exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years
thereafter.
Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he proposition in an
initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to
the day of the plebiscite.
It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat its intent
which it itself concedes is to implement peoples initiative to propose amendments to the Constitution. Thus, it
laments that the word "Constitution" is neither germane nor relevant to the policy thrust of section 2 and that the
statutes subtitling is not accurate. These lapses are to be expected for laws are not always written in impeccable
English. Rightly, the Constitution does not require our legislators to be word-smiths with the ability to write bills with
poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good
policy not to refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished
Vicente Francisco
13
reminds us: "Many laws contain words which have not been used accurately. But the use of inapt or
inaccurate language or words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally
true with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be
construed as carrying the meaning the legislature intended that they bear, although such a construction necessitates a
departure from the literal meaning of the words used.
In the same vein, the argument that R.A. No. 7535 does not include peoples initiative to amend the Constitution
simply because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in
statutory construction is that headings prefixed to titles, chapters and sections of a statute may be consulted in aid
of interpretation, but inferences drawn therefrom are entitled to very little weight, and they can never control the
plain terms of the enacting clauses.
14
All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit of R.A.
No. 6735 to implement the peoples initiative to amend the Constitution. It blatantly disregards the rule cast in
concrete that the letter of the law must yield to its spirit for the letter of the law is its body but its spirit is its soul.
15
II
COMELEC Resolution No. 2300,
16
promulgated under the stewardship of Commissioner Haydee Yorac, then its Acting
Chairman, spelled out the procedure on how to exercise the peoples initiative to amend the Constitution. This is in accord
with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The
Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the
purposes of this Act." By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez
v. Auditor General,
17
this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine whether
there is undue delegation of legislative power, viz:
xxx xxx xxx
Although Congress may delegate to another branch of the Government the power to fill details in the
execution, enforcement or administration of a law, it is essential, to forestall a violation of the
principle of separation of powers, that said law: (a) be complete in itself it must set forth therein
the policy to be executed, carried out or implemented by the delegate and (b) to fix standard
the limits of which are sufficiently determinate or determinable to which the delegate must
conform in the performance of his functions. Indeed, without a statutory declaration of policy, which
is the essence of every law, and, without the aforementioned standard, there would be no means to
determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of
his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law,
but, also and this is worse to unmake it, by adopting measures inconsistent with the end
sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers
and the system of checks and balances, and, consequently, undermining the very foundation of our
republican system.
Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a
valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any
policy to be carried out or implemented by the President. Neither does it give a standard sufficiently
precise to avoid the evil effects above referred to.
R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the laws
implementing rules and regulations of the law. As aforestated, section 2 spells out the policy of the law; viz: "The
power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in
whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance
with the requirements of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735
are the standards to canalize the delegated power to the COMELEC to promulgate rules and regulations from
overflowing. Thus, the law states the number of signatures necessary to start a peoples initiative,
18
directs how
initiative proceeding is commenced,
19
what the COMELEC should do upon filing of the petition for initiative,
20
how a
proposition is approved,
21
when a plebiscite may be held,
22
when the amendment takes effect
23
and what matters may
not be the subject of any initiative.
24
By any measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out the boundaries
of the delegates authority by defining the legislative policy and indicating the circumstances under which it is to be
pursued and effected. The purpose of the sufficient standard is to prevent a total transference of legislative power
from the lawmaking body to the delegate."
25
In enacting R.A. No. 6735, it cannot be said that Congress totally
transferred its power to enact the law implementing peoples initiative to COMELEC. A close look at COMELEC
Resolution No. 2300 will show that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to
the peoples initiative to amend the Constitution. The debates
26
in the Constitutional Commission make it clear that the
rules of procedure to enforce the peoples initiative can be delegated, thus:
MR. ROMULO. Under Commissioner Davides amendment, it is possible for the
legislature to set forth certain procedures to carry out the initiative. . . ?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioners amendment does not prevent the legislature
from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the implementation of
this particular right would be subject to legislation, provided the legislature cannot
determine anymore the percentage of the requirement.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative body must diminish
or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which I have
discussed be legislated?
MR. DAVIDE. Yes.
In his book, The Intent of the 1986 Constitution Writers,
27
Father Bernas likewise affirmed: "In response to
questions of Commissioner Romulo, Davide explained the extent of the power of the legislature over the process:
it could for instance, prescribe the proper form before (the amendment) is submitted to the people, it could
authorize another body to check the proper form. It could also authorize the COMELEC, for instance, to check the
authenticity of the signatures of petitioners. Davide concluded: As long as it will not destroy the substantive right
to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair
the right conceded here." Quite clearly, the prohibition against the legislature is to impair the substantive right of
the people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the procedure
to enforce the peoples right of initiative or to delegate it to another body like the COMELEC with proper standard.
A survey of our case law will show that this Court has prudentially refrained from invalidating administrative rules on
the ground of lack of adequate legislative standard to guide their promulgation. As aptly perceived by former Justice
Cruz, "even if the law itself does not expressly pinpoint the standard, the courts will bend backward to locate the
same elsewhere in order to spare the statute, if it can, from constitutional infirmity."
28
He cited the ruling
in Hirabayashi v. United States,
29
viz:
xxx xxx xxx
It is true that the Act does not in terms establish a particular standard to which orders of the military
commander are to conform, or require findings to be made as a prerequisite to any order. But the
Executive Order, the Proclamations and the statute are not to be read in isolation from each other.
They were parts of a single program and must be judged as such. The Act of March 21, 1942, was
an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations
themselves followed a standard authorized by the Executive Order the necessity of protecting
military resources in the designated areas against espionage and sabotage.
In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at the law
cannot miss them. They were not written by our legislators in invisible ink. The policy and standards can also
be found in no less than section 2, Article XVII of the Constitution on Amendments or Revisions. There is
thus no reason to hold that the standards provided for in R.A. No. 6735 are insufficient for in other cases we
have upheld as adequate more general standards such as "simplicity and dignity,"
30
"public interest,"
31
"public
welfare,"
32
"interest of law and order,"
33
"justice and equity,"
34
"adequate and efficient instruction,"
35
"public
safety,"
36
"public policy",
37
"greater national interest",
38
"protect the local consumer by stabilizing and subsidizing
domestic pump rates",
39
and "promote simplicity, economy and efficiency in government."
40
A due regard and
respect to the legislature, a co-equal and coordinate branch of government, should counsel this Court to refrain
from refusing to effectuate laws unless they are clearly unconstitutional.
III
It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The inclusion of
the Pedrosas in the petition is utterly baseless. The records show that the case at bar started when respondent
Delfin alone and by himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term Limits of
Elective Officials by Peoples Initiative. The Pedrosas did not join the petition. It was Senator Roco who moved to
intervene and was allowed to do so by the COMELEC. The petition was heard and before the COMELEC could
resolve the Delfin petition, the case at bar was filed by the petitioners with this Court. Petitioners sued the
COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the
Peoples Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for prohibition with
prayer for temporary restraining order and/or writ of preliminary injunction.
The petition on its face states no cause of action against the Pedrosas. The only allegation against the Pedrosas is
that they are founding members of the PIRMA which proposes to undertake the signature drive for peoples initiative
to amend the Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a respondent.
Petitioners then prayed that we order the Pedrosas ". . . to desist from conducting a signature drive for a peoples
initiative to amend the Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from
conducting a signature drive for peoples initiative to amend the Constitution." It is not enough for the majority to lift
the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions for contempt
against them without equivocation.
One need not draw a picture to impart the proposition that in soliciting signatures to start a peoples initiative to
amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of signatures is a right
guaranteed in black and white by section 2 of Article XVII of the Constitution which provides that ". . . amendments
to this Constitution may likewise be directly proposed by the people through initiative. . ." This right springs from the
principle proclaimed in section 1, Article II of the Constitution that in a democratic and republican state "sovereignty
resides in the people and all government authority emanates from them." The Pedrosas are part of the people and
their voice is part of the voice of the people. They may constitute but a particle of our sovereignty but no power can
trivialize them for sovereignty is indivisible.
But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their
organizations to effective and reasonable participation at all levels of social, political and economic decision-making
shall not be abridged. The State shall by law, facilitate the establishment of adequate consultation mechanisms."
This is another novel provision of the 1987 Constitution strengthening the sinews of the sovereignty of our people. In
soliciting signatures to amend the Constitution, the Pedrosas are participating in the political decision-making
process of our people. The Constitution says their right cannot be abridged without any ifs and buts. We cannot put
a question mark on their right.
Over and above these new provisions, the Pedrosas campaign to amend the Constitution is an exercise of their
freedom of speech and expression and their right to petition the government for redress of grievances. We have
memorialized this universal right in all our fundamental laws from the Malolos Constitution to the 1987 Constitution.
We have iterated and reiterated in our rulings that freedom of speech is a preferred right, the matrix of other
important rights of our people. Undeniably, freedom of speech enervates the essence of the democratic creed of
think and let think. For this reason, the Constitution encourages speech even if it protects the speechless.
It is thus evident that the right of the Pedrosas to solicit signatures to start a peoples initiative to amend the
Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no
Constitution can chain the people to an undesirable status quo. To be sure, there are no irrepealable laws just as
there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change.
Mankind has long recognized the truism that the only constant in life is change and so should the majority.
IV
In a stream of cases, this Court has rhapsodized people power as expanded in the 1987 Constitution. On October 5,
1993, we observed that peoples might is no longer a myth but an article of faith in our Constitution.
41
On September
30, 1994, we postulated that people power can be trusted to check excesses of government and that any effort to trivialize
the effectiveness of peoples initiatives ought to be rejected.
42
On September 26, 1996, we pledged that ". . . this Court as
a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate exercise."
43
Just a few
days ago, or on March 11, 1997, by a unanimous decision,
44
we allowed a recall election in Caloocan City involving the
mayor and ordered that he submits his right to continue in office to the judgment of the tribunal of the people. Thus far, we
have succeeded in transforming people power from an opaque abstraction to a robust reality. The Constitution calls us to
encourage people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to amend the
Constitution without setting back the flowering of people empowerment. More important, the Court cannot seal the lips of
people who are pro-change but not those who are anti-change without concerting the debate on charter change into a
sterile talkaton. Democracy is enlivened by a dialogue and not by a monologue for in a democracy nobody can claim any
infallibility.
Melo and Mendoza, JJ., concur.
VITUG, J ., concurring and dissenting:
The COMELEC should have dismissed, outrightly, the Delfin Petition.
It does seem to me that there is no real exigency on the part of the Court to engross, let alone to commit, itself on all
the issues raised and debated upon by the parties. What is essential at this time would only be to resolve whether or
not the petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his capacity as a "founding member of
the Movement for Peoples Initiative" and seeking through a people initiative certain modifications on the 1987
Constitution, can properly be regarded and given its due course. The Constitution, relative to any proposed
amendment under this method, is explicit. Section 2, Article XVII, thereof provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives, the petition
would rather have much of its burden passed on, in effect, to the COMELEC. The petition would require COMELEC
to schedule "signature gathering all over the country," to cause the necessary publication of the petition "in
newspapers of general and local circulation," and to instruct "Municipal Election Registrars in all Regions of the
Philippines to assist petitioners and volunteers in establishing signing stations at the time and on the dates
designated for the purpose.
I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made permanent under
theponencia should be held to cover only the Delfin petition and must not be so understood as having intended or
contemplated to embrace the signature drive of the Pedrosas. The grant of such a right is clearly implicit in the
constitutional mandate on people initiative.
The distinct greatness of a democratic society is that those who reign are the governed themselves. The postulate is
no longer lightly taken as just a perceived myth but a veritable reality. The past has taught us that the vitality of
government lies not so much in the strength of those who lead as in the consent of those who are led. The role of
free speech is pivotal but it can only have its true meaning if it comes with the correlative end of being heard.
Pending a petition for a peoples initiative that is sufficient in form and substance, it behooves the Court, I most
respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No. 6735 has effectively
and sufficiently implemented the Constitutional provision on right of the people to directly propose constitutional
amendments. Any opinion or view formulated by the Court at this point would at best be only a non-
binding, albeit possibly persuasive, obiter dictum.
I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued by the Court did
not prescribe the exercise by the Pedrosas of their right to campaign for constitutional amendments.
FRANCISCO, J ., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and well-written
ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is inadequate to cover the system of
initiative on amendments to the Constitution.
To begin with, sovereignty under the constitution, resides in the people and all government authority emanates from
them.
1
Unlike our previous constitutions, the present 1987 Constitution has given more significance to this declaration of
principle for the people are now vested with power not only to propose, enact or reject any act or law passed by Congress
or by the local legislative body, but to propose amendments to the constitution as well.
2
To implement these constitutional
edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act". This
law, to my mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based
principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their allegation that:
Republic Act No. 6735 provides for the effectivity of the law after publication in print media. [And]
[t]his indicates that Republic Act No. 6735 covers only laws and not constitutional amendments,
because constitutional amendments take effect upon ratification not after publication.
3
which allegation manifests petitioners selective interpretation of the law, for under Section 9 of Republic Act
No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b) thereof is clear in providing
that:
The proposition in an initiative on the constitution approved by a majority of the votes cast in the plebiscite shall
become effective as to the day of the plebiscite.
It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every part of the
statute must be construed together with the other parts and kept subservient to the general intent of the whole
enactment.
4
Thus, the provisions of Republic Act No. 6735 may not be interpreted in isolation. The legislative intent
behind every law is to be extracted from the statute as a whole.
5
In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to propose
amendments to the constitution or to propose and enact legislations through an election called for the purpose".
6
The
same section, in enumerating the three systems of initiative, included an "initiative on the constitution which refers to a
petition proposing amendments to the constitution"
7
Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral
process by which an initiative on the constitution is approved or rejected by the people" And as to the material
requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following:
A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the
total number of the registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein. Initiative on the
constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution
and only once every five years thereafter.
These provisions were inserted, on purpose, by Congress the intent being to provide for the implementation
of the right to propose an amendment to the Constitution by way of initiative. "A legal provision", the Court
has previously said, "must not be construed as to be a useless surplusage, and accordingly, meaningless, in
the sense of adding nothing to the law or having no effect whatsoever thereon".
8
That this is the legislative
intent is further shown by the deliberations in Congress, thus:
. . . More significantly, in the course of the consideration of the Conference Committee Report on the
disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was noted:
MR. ROCO. On the Conference Committee Report on the disagreeing provisions
between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers
to the system providing for the initiative and referendum, fundamentally, Mr. Speaker,
we consolidated the Senate and the House versions, so both versions are totally
intact in the bill. The Senators ironically provided for local initiative and referendum
and the House of Representatives correctly provided for initiative and referendum an
the Constitution and on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO, Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. What does the sponsor say?
MR. ROCO. Willingly, Mr. Speaker.
THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.
MR. ALBANO. I heard the sponsor say that the only difference in the two bills was
that in the Senate version there was a provision for local initiative and referendum,
whereas the House version has none.
MR. ROCO. In fact, the Senate version provided purely for local initiative and
referendum, whereas in the House version, we provided purely for national and
constitutional legislation.
MR. ALBANO. Is it our understanding, therefore, that the two provisions were
incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete initiative and referendum both in
the constitutional amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with the provision
of the Constitution to enact the enabling law, so that we shall have a system which
can be done every five years. Is it five years in the provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987
Constitution, it is every five years." (Id. [Journal and Record of the House of
Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237
SCRA 279, 292-293 [1994]; emphasis supplied)
. . . The Senate version of the Bill may not have comprehended initiatives on the Constitution. When
consolidated, though, with the House version of the Bill and as approved and enacted into law, the
proposal included initiative on both the Constitution and ordinary laws.
9
Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction as what
petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the enactment.
At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any action (such as
those contained in the Commissions orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative
of its having already assumed jurisdiction over private respondents petition. This is so because from the tenor of
Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of the required percentage of registered
voters at the time the petition for initiative is filed, is a jurisdictional requirement.
Thus:
A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the
total number of registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein. Initiative on the
Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter.
Here private respondents petition is unaccompanied by the required signatures. This defect
notwithstanding, it is without prejudice to the refiling of their petition once compliance with the required
percentage is satisfactorily shown by private respondents. In the absence, therefore, of an appropriate
petition before the Commission on Elections, any determination of whether private respondents proposal
constitutes an amendment or revision is premature.
ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an "inadequate"
legislation to cover a peoples initiative to propose amendments to the Constitution. I, however, register my
concurrence with the dismissal, in the meantime, of private respondents petition for initiative before public
respondent Commission on Elections until the same be supported by proof of strict compliance with Section 5 (b) of
R.A. No. 6735.
Melo and Mendoza, JJ., concur.
PANGANIBAN, J ., concurring and dissenting:
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:
(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin
Petition.
(2) While the Constitution allows amendments to "be directly proposed by the people through initiative," there is no
implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned."
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of initiative on
amendments to the Constitution, is void."
I concur with the first item above. Until and unless an initiatory petition can show the required number of signatures
in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district no
public funds may be spent and no government resources may be used in an initiative to amend the Constitution.
Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully
from the majoritys two other rulings. Let me explain.
Under the above restrictive holdings espoused by the Courts majority, the Constitution cannot be amended at all
through a peoples initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country
acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the
peoples right to change the basic law. At the very least, the majority holds the right hostage to congressional
discretion on whether to pass a new law to implement it, when there is already one existing at present. This right to
amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.
With all due respect, I find the majoritys position all too sweeping and all too extremist. It is equivalent to burning the
whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the
Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of
initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a
ban against its proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason.
Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300 Are
Sufficient to Implement Constitutional Initiatives
While RA 6735 may not be a perfect law, it was as the majority openly concedes intended by the legislature to
cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution.
1
I
completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J.
Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments
to the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Courts
unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections,
2
that "provisions for
initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the
voters of the rights granted thereby"; and in Garcia vs. Comelec,
3
that any "effort to trivialize the effectiveness of peoples
initiatives ought to be rejected."
No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735 wisely
empowered
4
the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out
the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such
Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and
referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of
Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama
and Magdara B. Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission,
and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to give life to a
cherished right of our people.
The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in
reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for
the Resolution is the same law, RA 6735.
I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII,
Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and
realize our peoples power to amend the Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18
December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of
initiative. In fact, I believe that such restraining order as against private respondents should not have been issued, in
the first place. While I agree that the Comelec should be stopped from using public funds and government resources
to help them gather signatures, I firmly believe that this Court has no power to restrain them from exercising their
right of initiative. The right to propose amendments to the Constitution is really a species of the right of free speech
and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking freely and
persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may disagree with what you
say, but I will defend to the death your right to say it." After all, freedom is not really for the thought we agree with,
but as Justice Holmes wrote, "freedom for the thought that we hate."
5
Epilogue
By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is
a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-
admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty.
They are sacred democratic rights of our people to be used as their final weapons against political excesses,
opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency,
accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be
resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent
Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other grounds
relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar
as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in
proposing amendments to the Constitution.
Melo and Mendoza, JJ., concur.
Footnotes
1 Commissioner Blas Ople.
2 Commissioner Jose Suarez.
3 I Record of the Constitutional Commission, 371, 378.
4 Section 1, Article XV of the 1935 Constitution and Section 1(1), Article XVI of the 1973
Constitution.
5 Annex "A" of Petition, Rollo, 15.
6 Later identified as the Peoples Initiative for Reforms, Modernization and Action, or PIRMA for
brevity.
7 These sections read:
Sec. 4. The term of office of the Senators shall be six years and shall commence, unless otherwise
provided by law, at noon on the thirtieth day of June next following their election.
No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his service for the full
term for which he was elected.
xxx xxx xxx
Sec. 7. The Members of the House of Representatives shall be elected for a term of three years
which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next
following their election.
No Member of the House of Representatives shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption
in the continuity of his service for the full term for which he was elected.
8 The section reads:
Sec. 4. The President and the Vice-President shall be elected by direct vote of the people for a term
of six years which shall begin at noon on the thirtieth day of June next following the day of the
election and shall end at noon of the same date six years thereafter. The President shall not be
eligible for any reelection. No person who has succeeded as President and has served as such for
more than four years shall be qualified for election to the same office at any time.
No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the
office for any length or time shall not be considered as an interruption in the continuity of the service
for the full term for which he was elected.
9 The section reads:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected.
10 Rollo, 19.
11 Annex "B" of Petition, Rollo, 25.
12 Order of 12 December 1996, Annex "B-1" of Petition, Rollo, 27.
13 Id.
14 Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; Sanidad v. COMELEC, 73 SCRA 333 [1976].
15 Rollo, 68.
16 Rollo, 100.
17 Rollo, 130.
18 A Member of the 1986 Constitutional Commission.
19 Section 26, Article II, Constitution.
20 Citing Commissioner Ople of the Constitutional Commission, I Record of the Constitutional
Commission, 405.
21 Rollo, 239.
22 Rollo, 304.
23 Rollo, 568.
24 These were submitted on the following dates:
(a) Private respondent Delfin 31 January 1997 (Rollo, 429);
(b) Private respondents Alberto and Carmen Pedrosa 10 February 1997 (Id., 446);
(c) Petitioners 12 February 1997 (Id., 585);
(d) IBP 12 February 1997 (Id., 476);
(e) Senator Roco 12 February 1997 (Id., 606);
(f) DIK and MABINI 12 February 1997 (Id., 465);
(g) COMELEC 12 February 1997 (Id., 489);
(h) LABAN 13 February 1997 (Id., 553).
25 Rollo, 594.
26 Annex "D" of Rocos Motion for Intervention in this case, Rollo, 184.
27 Rollo, 28.
28 232 SCRA 110, 134 [1994].
29 II The Constitution of the Republic of the Philippines, A Commentary 571 [1988].
30 I Record of the Constitutional Commission 370-371.
31 Id., 371.
32 Id., 386.
33 Id., 391-392. (Emphasis supplied).
34 Id., 386.
35 Id., 392.
36 Id., 398-399.
37 Id., 399. Emphasis supplied.
38 Id., 402-403.
39 Id., 401-402.
40 Id., 410.
41 Id., 412.
42 II Record of the Constitutional Commission 559-560.
43 The Congress originally appeared as The National Assembly. The change came about as a
logical consequence of the amended Committee Report No. 22 of the Committee on Legislative
which changed The National Assembly to "The Congress of the Philippines" in view of the approval
of the amendment to adopt the bicameral system (II Record of the Constitutional Commission 102-
105). The proposed new Article on the Legislative Department was, after various amendments
approved on Second and Third Readings on 9 October 1986 (Id., 702-703)
44 V Record of the Constitutional Commission 806.
45 See footnote No. 42.
46 As Stated by Commissioner Bernas in his interpellation of Commissioner Suarez, footnote 28.
47 Entitled "Initiative and Referendum Act of 1987," introduced by then Congressmen Raul Roco,
Raul del Mar and Narciso Monfort.
48 Entitled "An Act Implementing the Constitutional Provisions on Initiative and Referendum and for
Other Purposes," introduced by Congressmen Salvador Escudero.
49 Entitled "An Act Providing for a System of Initiative and Referendum, and the Exceptions
Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact
Resolutions and Ordinances or Approve or Reject Any Ordinance or Resolution Passed By the Local
Legislative Body," introduced by Senators Gonzales, Romulo, Pimentel, Jr., and Lina, Jr.
50 IV Record of the Senate, No. 143, pp. 1509-1510.
51 VIII Journal and Record of the House of Representatives, 957-961.
52 That section reads:
Sec. 1. Statement of Policy. The power of the people under a system of initiative and referendum to
directly propose and enact resolutions and ordinances or approve or reject, in whole or in part, any
ordinance or resolution passed by any local legislative body upon compliance with the requirements
of this Act is hereby affirmed, recognized and guaranteed.
53 It must be pointed out that Senate Bill No. 17 and House Bill No. 21505, as approved on Third
Reading, did not contain any subtitles.
54 If some confusion attended the preparation of the subtitles resulting in the leaving out of the more
important and paramount system of initiative on amendments to the Constitution, it was because
there was in the Bicameral Conference Committee an initial agreement for the Senate panel to draft
that portion on local initiative and for the House of Representatives panel to draft that portion
covering national initiative and initiative on the Constitution; eventually, however, the Members
thereof agreed to leave the drafting of the consolidated bill to their staff. Thus:
CHAIRMAN GONZALES.
. . . All right, and we can agree, we can agree. So ang mangyayari dito, ang magiging basic nito, let
us not discuss anymore kung alin ang magiging basic bill, ano, whether it is the Senate Bill or
whether it is the House Bill. Logically it should be ours sapagkat una iyong sa amin, eh. It is one of
the first bills approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na nating
pag-usapan. Now, if you insist, really iyong features ng national at saka constitutional, okay. Pero
gagawin na nating consolidation of both bills. (TSN, proceedings of the Bicameral Conference
Committee on 6 June 1989 submitted by Nora, R, pp. 1-4 1-5).
xxx xxx xxx
HON. ROCO. So how do we proceed from this? The staff will consolidate.
HON. GONZALES. Gumawa lang ng isang draft. Submit it to the Chairman, kami na ang bahalang
magconsult sa aming mga members na kung okay,
HON. ROCO. Within today?
HON. GONZALES. Within today and early tomorrow. Hanggang Huwebes lang tayo, eh.
HON. AQUINO. Kinakailangang palusutin natin ito. Kung mabigyan tayo ng kopya bukas and you
are not objecting naman kayo naman ganoon din.
HON. ROCO. Editing na lang because on a physical consolidation nga ito, eh. Yung mga provisions
naman namin wala sa inyo. (TSN, proceedings of Bicameral Conference Committee of 6 June 1989,
submitted by E.S. Bongon, pp. III-4 III-5).
55 Sec. 5(a & c), Sec. 8, Section 9(a).
56 Sections 13, 14, 15 and 16.
57 It would thus appear that the Senates "cautious approach" in the implementation of the system of
initiative as a mode of proposing amendments to the Constitution, as expressed by Senator
Gonzales in the course of his sponsorship of Senate Bill No. 17 in the Bicameral Conference
Committee meeting and in his sponsorship of the Committees Report, might have insidiously
haunted the preparation of the consolidated version of Senate Bill No. 17 and House Bill No. 21505.
In the first he said:
Senate Bill No. 17 recognizes the initiatives and referendum are recent innovations in our
political system. And recognizing that, it has adopted a cautious approach by: first, allowing
them only when the local legislative body had refused to act; second, not more frequently
than once a year; and, third, limiting them to the national level. (I Record of the Senate, No.
33, p. 871).
xxx xxx xxx
First, as I have said Mr. President, and I am saying for the nth time, that we are introducing a
novel and new system in politics. We have to adopt first a cautious approach. We feel it is
prudent and wise at this point in time, to limit those powers that may be the subject of
initiatives and referendum to those exercisable or within the authority of the local government
units. (Id., p. 880).
In the second he stated:
But at any rate, as I have said, because this is new in our political system, the Senate
decided on a more cautious approach and limiting it only to the local general units. (TSN of
the proceedings of the Bicameral Conference Committee on 6 June 1989, submitted by
stenographer Nora R, pp. 1-2 to 1-3).
In the last he declared:
The initiatives and referendum are new tools of democracy; therefore, we have decided to
becautious in our approach. Hence, 1) we limited initiative and referendum to the local government
units; 2) that initiative can only be exercised if the local legislative cannot be exercised more
frequently that once every year. (IV Records of the Senate, No. 143, pp. 15-9-1510).
58 Section 20, RA. No. 6735.
59 People v. Rosenthal, 68 Phil. 328 [1939]; ISAGANI A. CRUZ, Philippine Political Law 86 [1996]
(hereafter CRUZ).
60 People v. Vera, 65 Phil. 56 [1937]; CRUZ, supra, 87.
61 Pelaez v. Auditor General, 122 Phil. 965, 974 [1965].
62 Edu v. Ericta, 35 SCRA 481,497 [1970].
63 Sec. 7, COMELEC Resolution No. 2300.
64 Sec. 28, id.
65 Sec. 29, id.
66 Sec. 30, id.
PUNO, J., concurring and dissenting::
1 Agpalo, Statutory Construction, 1986 ed., p. 38, citing, inter alia, US v. Tamparong 31 Phil. 321;
Hernani v. Export Control Committee, 100 Phil. 973; People v. Purisima, 86 SCRA 542.
2 Ibid, citing Torres v. Limjap, 56 Phil. 141.
3 Prepared and sponsored by the House Committee on Suffrage and Electoral Reforms on the basis
of H.B. No. 497 introduced by Congressmen Raul Roco, Raul del Mar and Narciso Monfort and H.B.
No. 988 introduced by Congressman Salvador Escudero.
4 Introduced by Senators Neptali Gonzales, Alberto Romulo, Aquilino Pimentel, Jr., and Jose Lina,
Jr.
5 It was entitled "An Act Providing a System of Initiative and Referendum and Appropriating Funds
therefor.
6 Journal No. 85, February 14, 1989, p. 121.
7 Ibid.
8 The Senate Committee was chaired by Senator Neptali Gonzales with Senators Agapito Aquino
and John Osmena as members. The House Committee was chaired by Congressman Magdaleno
M. Palacol with Congressmen Raul Roco, Salvador H. Escudero III and Joaquin Chipeco, Jr., as
members.
9 Held at Constancia Room, Ciudad Fernandina, Greenhills, San Juan, Metro Manila.
10 See Compliance submitted by intervenor Roco dated January 28, 1997.
11 Record No. 137, June 8, 1989, pp. 960-961.
12 Agpalo, op cit., p. 38 citing US v. Toribio, 15 Phil 7 (1910); US v. Navarro, 19 Phil 134 (1911).
13 Francisco, Statutory Construction, 3rd ed., (1968) pp. 145-146 citing Crawford, Statutory
Construction, pp. 337-338.
14 Black, Handbook on the Construction and Interpretation of the Laws (2nd ed), pp. 258-259. See
also Commissioner of Custom v. Relunia, 105 Phil 875 (1959); People v. Yabut, 58 Phil 499 (1933).
15 Alcantara, Statutes, 1990 ed., p. 26 citing Dwarris on Statutes, p. 237.
16 Entitled In re: Rules and Regulations Governing the Conduct of Initiative on the Constitution, and
Initiative and Referendum on National and Local Laws and promulgated on January 16, 1991 by the
COMELEC with Commissioner Haydee B. Yorac as Acting Chairperson and Commissioners Alfredo
E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao.
17 15 SCRA 569.
18 Sec. 5(b), R.A. No. 6735.
19 Sec. 5(b), R.A. No. 6735.
20 Sec. 7, R.A. No. 6735.
21 Sec. 9(b), R.A. No. 6735.
22 Sec. 8, R.A. No. 6735 in relation to Sec. 4, Art. XVII of the Constitution.
23 Sec. 9(b), R.A. No. 6735.
24 Sec. 10, R.A. No. 6735.
25 Cruz, Philippine Political Law, 1995 ed., p. 98.
26 See July 8, 1986 Debates of the Concom, p. 399.
27 1995 ed., p. 1207.
28 Cruz, op cit., p. 99.
29 320 US 99.
30 Balbuena v. Secretary of Education, 110 Phil 150 (1910).
31 People v. Rosenthal, 68 Phil 328 (1939).
32 Calalang v. Williams, 70 Phil 726 (1940).
33 Rubi v. Provincial Board of Mindoro, 39 Phil 669 (1919).
34 International Hardwood v. Pangil Federation of Labor, 70 Phil 602 (1940).
35 Phil. Association of Colleges and Universities v. Secretary of Education, 97 Phil 806 (1955).
36 Edu v. Ericta, 35 SCRA 481 (1990); Agustin v. Edu, 88 SCRA 195 (1979).
37 Pepsi Cola Bottling Co. vs. Municipality of Tanawan Leyte, 69 SCRA 460 (1976).
38 Maceda v. Macaraig, 197 SCRA 771 (1991).
39 Osmena v. Orbos, 220 SCRA 703 (1993).
40 Chiongbian v. Orbos, 245 SCRA 253 (1995).
41 Garcia v. COMELEC, et al., G.R. No. 111511, October 5, 1993.
42 Garcia, et al. v. COMELEC, et al., G.R. No. 111230, September 30, 1994.
43 Subic Bay Metropolitan Authority v. COMELEC, et al., G.R. No. 125416, September 26, 1996.
44 Malonzo vs. COMELEC, et al., G.R. No. 127066, March 11, 1997.
FRANCISCO, J., concurring and dissenting:
1 Article II, Section 1, 1987 Constitution.
2 Article VI, Section 32, and Article XVII, Section 2, 1987 Constitution.
3 Petition, p. 5.
4 Paras v. Commission on Elections, G.R. No. 123619, December 4, 1996.
5 Tamayo v. Gsell, 35 Phil. 953, 980.
6 Section 3 (a), Republic Act No 6735.
7 Section 3(a) [a.1], Republic Act No 6735.
8 Uytengsu v. Republic, 95 Phil. 890, 893
9 Petition in Intervention filed by Sen. Raul Roco, pp. 15-16.
PANGANIBAN, J., concurring and dissenting:
1 Apart from its text on "national initiative" which could be used by analogy, RA 6735 contains
sufficient provisions covering initiative on the Constitution, which are clear enough and speak for
themselves, like:
Sec. 2. Statement of Policy. The power of the people under a system of initiative and referendum
to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances,
or resolution passed by any legislative body upon compliance with the requirements of this Act is
hereby affirmed, recognized and guaranteed.
Sec. 3. Definition of Terms. For purposes of this Act, the following terms shall mean:
(a) "Initiative" is the power of the people to propose amendments to the
Constitution or to propose and enact legislations through an election called for the
purpose.
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments to
the Constitution;
a.2 Initiative on statutes which refers to a petition proposing to enact a national
legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to enact a
regional, provincial, city, municipal, or barangay law, resolution or ordinance.
xxx xxx xxx
(e) "Plebiscite" is the electoral process by which an initiative on the Constitution is
approved or rejected by the people
(f) "Petition" is the written instrument containing the proposition and the required
number of signatories. It shall be in a form to be determined by and submitted to the
Commission on Elections, hereinafter referred to as the Commission
xxx xxx xxx
Sec. 5 Requirements. . . .
(b) A petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12 %) of the total number of registered voters as signatories, of which every
legislative district must be represented by at least three per centum (3%) of the
registered voters therein. Initiative on the Constitution may be exercised only after
five (5) years from the ratification of the 1987 Constitution and only once every five
(5) years thereafter.
Sec. 9. Effectivity of Initiative or Referendum Proposition.
xxx xxx xxx
(b) The proposition in an initiative on the Constitution approved by a majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.
xxx xxx xxx
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided herein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition in not more than one hundred
(100) words which shall be legibly written or printed at the top of
every page of the petition.
xxx xxx xxx
Sec. 19. Applicability of the Omnibus Election Code. The Omnibus Election Code and other
election laws, not inconsistent with the provisions of this Act, shall apply to all initiatives and
referenda.
Sec. 20. Rules and Regulations. The Commission is hereby empowered to promulgate such rules
and regulations as may be necessary to carry out the purposes of this Act. (Emphasis supplied)
2 G.R. No. 125416, September 26, 1996.
3 237 SCRA 279, 282, September 30, 1994.
4 Sec. 20, R.A. 6735.
5 United States vs. Rosika Schwimmer, 279 U.S. 644, 655 (1929).
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 101949 December 1, 1994
THE HOLY SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch 61
and STARBRIGHT SALES ENTERPRISES, INC., respondents.
Padilla Law Office for petitioner.
Siguion Reyna, Montecillo & Ongsiako for private respondent.
QUIASON, J .:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the Orders
dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61, Makati, Metro Manila in Civil
Case No. 90-183.
The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No. 90-183,
while the Order dated September 19, 1991 denied the motion for reconsideration of the June 20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented in the
Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate
business.
This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A, Transfer
Certificate of Title No. 390440) located in the Municipality of Paraaque, Metro Manila and registered in the name of
petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos. 271108 and
265388 respectively and registered in the name of the Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers. Later,
Licup assigned his rights to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of the
parties has the responsibility of evicting and clearing the land of squatters. Complicating the relations of the parties
was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation (Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati, Metro
Manila for annulment of the sale of the three parcels of land, and specific performance and damages against
petitioner, represented by the Papal Nuncio, and three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the
PRC and Tropicana (Civil Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC, agreed to
sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the agreement to sell
was made on the condition that earnest money of P100,000.00 be paid by Licup to the sellers, and that the sellers
clear the said lots of squatters who were then occupying the same; (3) Licup paid the earnest money to Msgr.
Cirilos; (4) in the same month, Licup assigned his rights over the property to private respondent and informed the
sellers of the said assignment; (5) thereafter, private respondent demanded from Msgr. Cirilos that the sellers fulfill
their undertaking and clear the property of squatters; however, Msgr. Cirilos informed private respondent of the
squatters refusal to vacate the lots, proposing instead either that private respondent undertake the eviction or that
the earnest money be returned to the latter; (6) private respondent counterproposed that if it would undertake the
eviction of the squatters, the purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per square
meter; (7) Msgr. Cirilos returned the earnest money of P100,000.00 and wrote private respondent giving it seven
days from receipt of the letter to pay the original purchase price in cash; (8) private respondent sent the earnest
money back to the sellers, but later discovered that on March 30, 1989, petitioner and the PRC, without notice to
private respondent, sold the lots to Tropicana, as evidenced by two separate Deeds of Sale, one over Lot 5-A, and
another over Lots 5-B and 5-D; and that the sellers transfer certificate of title over the lots were cancelled,
transferred and registered in the name of Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots to
it and thus enriched itself at the expense of private respondent; (10) private respondent demanded the rescission of
the sale to Tropicana and the reconveyance of the lots, to no avail; and (11) private respondent is willing and able to
comply with the terms of the contract to sell and has actually made plans to develop the lots into a townhouse
project, but in view of the sellers breach, it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the PRC on the
one hand, and Tropicana on the other; (2) the reconveyance of the lots in question; (3) specific performance of the
agreement to sell between it and the owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint petitioner for lack of
jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an improper party. An opposition to
the motion was filed by private respondent.
On June 20, 1991, the trial court issued an order denying, among others, petitioners motion to dismiss after finding
that petitioner "shed off [its] sovereign immunity by entering into the business contract in question" (Rollo, pp. 20-
21).
On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed a "Motion
for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a Jurisdictional
Defense." So as to facilitate the determination of its defense of sovereign immunity, petitioner prayed that a hearing
be conducted to allow it to establish certain facts upon which the said defense is based. Private respondent
opposed this motion as well as the motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring the resolution on the motion for reconsideration until
after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign immunity
only on its own behalf and on behalf of its official representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign Affairs, claiming
that it has a legal interest in the outcome of the case as regards the diplomatic immunity of petitioner, and that it
"adopts by reference, the allegations contained in the petition of the Holy See insofar as they refer to arguments
relative to its claim of sovereign immunity from suit" (Rollo, p. 87).
Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the resolution
of this Court, both parties and the Department of Foreign Affairs submitted their respective memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under Rule 65 of
the Revised Rules of Court can be availed of to question the order denying petitioners motion to dismiss. The
general rule is that an order denying a motion to dismiss is not reviewable by the appellate courts, the remedy of the
movant being to file his answer and to proceed with the hearing before the trial court. But the general rule admits of
exceptions, and one of these is when it is very clear in the records that the trial court has no alternative but to
dismiss the complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service
Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time and energy to require the
parties to undergo the rigors of a trial.
The other procedural question raised by private respondent is the personality or legal interest of the Department of
Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in
a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant
is entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," where the foreign state or the
international organization sued in an American court requests the Secretary of State to make a determination as to
whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn,
asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to immunity. In
England, a similar procedure is followed, only the Foreign Office issues a certification to that effect instead of
submitting a "suggestion" (OConnell, I International Law 130 [1965]; Note: Immunity from Suit of Foreign Sovereign
Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the international organization to first secure an
executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office
conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA
130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment,
informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity.
InWorld Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a
telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign
Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at
Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in
a Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to
be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in
support of petitioners claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents
through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command,
80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In cases
where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own
determination as to the nature of the acts and transactions involved.
III
The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign state
enjoying sovereign immunity. On the other hand, private respondent insists that the doctrine of non-suability is not
anymore absolute and that petitioner has divested itself of such a cloak when, of its own free will, it entered into a
commercial transaction for the sale of a parcel of land located in the Philippines.
A. The Holy See
Before we determine the issue of petitioners non-suability, a brief look into its status as a sovereign state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy See, was
considered a subject of International Law. With the loss of the Papal States and the limitation of the territory under
the Holy See to an area of 108.7 acres, the position of the Holy See in International Law became controversial
(Salonga and Yap, Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion and
sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to receive
foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties according to International
Law (Garcia, Questions and Problems In International Law, Public and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See
absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international
relations" (OConnell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the Holy
See or in the Vatican City. Some writers even suggested that the treaty created two international persons the
Holy See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty" must
be made in a sense different from that in which it is applied to other states (Fenwick, International Law 124-125
[1948]; Cruz, International Law 37 [1991]). In a community of national states, the Vatican City represents an entity
organized not for political but for ecclesiastical purposes and international objects. Despite its size and object, the
Vatican City has an independent government of its own, with the Pope, who is also head of the Roman Catholic
Church, as the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the
world. Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a sense an
"international state" (Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has significant implication that it is possible
for any entity pursuing objects essentially different from those pursued by states to be invested with international
personality (Kunz, The Status of the Holy See in International Law, 46 The American Journal of International Law
308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not in the
name of the Vatican City, one can conclude that in the Popes own view, it is the Holy See that is the international
person.
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through
its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957
(Rollo, p. 87). This appears to be the universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted principles
of International Law. Even without this affirmation, such principles of International Law are deemed incorporated as
part of the law of the land as a condition and consequence of our admission in the society of nations (United States
of America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another
sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard
to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International Law
194 [1984]).
Some states passed legislation to serve as guidelines for the executive or judicial determination when an act may be
considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act of 1976, which
defines a commercial activity as "either a regular course of commercial conduct or a particular commercial
transaction or act." Furthermore, the law declared that the "commercial character of the activity shall be determined
by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its
purpose." The Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. The
Act defines a "commercial activity" as any particular transaction, act or conduct or any regular course of conduct that
by reason of its nature, is of a "commercial character."
The restrictive theory, which is intended to be a solution to the host of problems involving the issue of sovereign
immunity, has created problems of its own. Legal treatises and the decisions in countries which follow the restrictive
theory have difficulty in characterizing whether a contract of a sovereign state with a private party is an act jure
gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely
connected with the discharge of governmental functions. This is particularly true with respect to the Communist
states which took control of nationalized business activities and international trading.
This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1)
the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 84 Phil.
312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station (United States
of America v. Ruiz, supra.); and (3) the change of employment status of base employees (Sanders v. Veridiano, 162
SCRA 88 [1988]).
On the other hand, this Court has considered the following transactions by a foreign state with private parties as
acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, a
bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to American
servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding
for the operation of barber shops in Clark Air Base in Angeles City (United States of America v. Guinto, 182 SCRA
644 [1990]). The operation of the restaurants and other facilities open to the general public is undoubtedly for profit
as a commercial and not a governmental activity. By entering into the employment contract with the cook in the
discharge of its proprietary function, the United States government impliedly divested itself of its sovereign immunity
from suit.
In the absence of legislation defining what activities and transactions shall be considered "commercial" and as
constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such
an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity
in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular
act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like any other state, will be deemed to have
impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity.
It is only when the contract involves its sovereign or governmental capacity that no such waiver may
be implied.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely
the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition
and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site of its
mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal
Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the
creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic
Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in the
Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory
of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. If this
immunity is provided for a diplomatic envoy, with all the more reason should immunity be recognized as regards the
sovereign itself, which in this case is the Holy See.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental
character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost
impossible for petitioner to use it for the purpose of the donation. The fact that squatters have occupied and are still
occupying the lot, and that they stubbornly refuse to leave the premises, has been admitted by private respondent in
its complaint (Rollo, pp. 26, 27).
The issue of petitioners non-suability can be determined by the trial court without going to trial in the light of the
pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign immunity in this case
was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. As the
department tasked with the conduct of the Philippines foreign relations (Administrative Code of 1987, Book IV, Title
I, Sec. 3), the Department of Foreign Affairs has formally intervened in this case and officially certified that the
Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from
local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this
country (Rollo, pp. 156-157). The determination of the executive arm of government that a state or instrumentality is
entitled to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (International
Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the
executive arm of the government in conducting the countrys foreign relations (World Health Organization v. Aquino,
48 SCRA 242 [1972]). As in International Catholic Migration Commission and in World Health Organization, we
abide by the certification of the Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to establish the
facts alleged by petitioner in its motion. In view of said certification, such procedure would however be pointless and
unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No. 109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask
his own government to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the
Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its
claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations
between the Philippine government and the Holy See (Young, Remedies of Private Claimants Against Foreign
States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the
Philippine government decides to espouse the claim, the latter ceases to be a private cause.
According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:
By taking up the case of one of its subjects and by reporting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights its right to ensure, in
the person of its subjects, respect for the rules of international law (The Mavrommatis Palestine
Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against petitioner
is DISMISSED.
SO ORDERED.
Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan and Mendoza, JJ.,
concur.
Padilla, J., took no part.
Feliciano, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 125865 January 28, 2000
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J .:
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for allegedly
uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the Metropolitan Trial
Court (MeTC) of Mandaluyong City with two counts of grave oral defamation docketed as Criminal Cases Nos.
53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing petitioners bail at
P2,400.00 per criminal charge, the MeTC released him to the custody of the Security Officer of ADB. The next day,
the MeTC judge received an "office of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner
is covered by immunity from legal process under Section 45 of the Agreement between the ADB and the Philippine
Government regarding the Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said
protocol communication that petitioner is immune from suit, the MeTC judge without notice to the prosecution
dismissed the two criminal cases. The latter filed a motion for reconsideration which was opposed by the DFA.
When its motion was denied, the prosecution filed a petition for certiorari and mandamus with the Regional Trial
Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to enforce the warrant of
arrest it earlier issued. After the motion for reconsideration was denied, petitioner elevated the case to this
Court via a petition for review arguing that he is covered by immunity under the Agreement and that no preliminary
investigation was held before the criminal cases were filed in court.1wphi1. nt
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by
any immunity. The DFAs determination that a certain person is covered by immunity is only preliminary which has
no binding effect in courts. In receiving ex-parte the DFAs advice and in motu propio dismissing the two criminal
cases without notice to the prosecution, the latters right to due process was violated. It should be noted that due
process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner
was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be
presented at the proper time.
1
At any rate, it has been ruled that the mere invocation of the immunity clause does
not ipso facto result in the dropping of the charges.
2
Second, under Section 45 of the Agreement which provides:
Officers and staff of the Bank including for the purpose of this Article experts and consultants performing
missions for the Bank shall enjoy the following privileges and immunities:
a.) immunity from legal process with respect to acts performed by them in their official capacity
except when the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the exception that the acts was done in "official
capacity." It is therefore necessary to determine if petitioners case falls within the ambit of Section 45(a). Thus, the
prosecution should have been given the chance to rebut the DFA protocol and it must be accorded the opportunity
to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement because our laws do not allow
the commission of a crime, such as defamation, in the name of official duty.
3
The imputation of theft is ultra vires and
cannot be part of official functions. It is well-settled principle of law that a public official may be liable in his personal
private capacity for whatever damage he may have caused by his act done with malice or in bad faith or beyond the
scope of his authority or jurisdiction.
4
It appears that even the governments chief legal counsel, the Solicitor
General, does not support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such,
enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any
professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official
functions.
5
As already mentioned above, the commission of a crime is not part of official duty.
Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that preliminary
investigation is not a matter of right in cases cognizable by the MeTC such as the one at bar.
6
Being purely a
statutory right, preliminary investigation may be invoked only when specifically granted by law.
7
The rule on the
criminal procedure is clear that no preliminary investigation is required in cases falling within the jurisdiction of the
MeTC.
8
Besides the absence of preliminary investigation does not affect the courts jurisdiction nor does it impair the
validity of the information or otherwise render it defective.
9
WHEREFORE, the petition is DENIED.
SO ORDERED.1wphi 1. nt
Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.
Footnotes
1
See United States v. Guinto, 182 SCRA 644 [1990].
2
Chavez v. Sandiganbayan, 193 SCRA 282 [1991].
3
K.H. Wylie v. Rarang, 209 SCRA 357, 368 [1992].
4
Shauf v. CA, 191 SCRA 713 [1990]; Animos v. Phil. Veterans Affairs Office, 174 SCRA 214 [1989]; Dumlao
v. CA, 114 SCRA 247 [1982].
5
Sec. 31, 1 (c); See also Minucher v. CA, 214 SCRA 242 [1992].
6
See Del Rosario, Jr. v. Bartolome, 270 SCRA 645 [1997].
7
People v. Abejuela, 38 SCRA 324 [1971].
8
Sec. 1, Rule 112, Rules of Criminal Procedure.
9
People v. Gomez, 117 SCRA 72 [1982]; People v. Casiano, 1 SCRA 478 [1961].
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-52179 April 8, 1991
MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner
vs.
HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-BANIA, IAUREANO BANIA, JR., SOR MARIETA
BANIA, MONTANO BANIA, ORJA BANIA, AND LYDIA R. BANIA, respondents.
Mauro C. Cabading, Jr. for petitioner.
Simeon G. Hipol for private respondent.
MEDIALDEA, J .:p
This is a petition for certiorari with prayer for the issuance of a writ of preliminary mandatory injunction seeking the
nullification or modification of the proceedings and the orders issued by the respondent Judge Romeo N. Firme, in
his capacity as the presiding judge of the Court of First Instance of La Union, Second Judicial District, Branch IV,
Bauang, La Union in Civil Case No. 107-BG, entitled "Juana Rimando Bania, et al. vs. Macario Nieveras, et al."
dated November 4, 1975; July 13, 1976; August 23,1976; February 23, 1977; March 16, 1977; July 26, 1979;
September 7, 1979; November 7, 1979 and December 3, 1979 and the decision dated October 10, 1979 ordering
defendants Municipality of San Fernando, La Union and Alfredo Bislig to pay, jointly and severally, the plaintiffs for
funeral expenses, actual damages consisting of the loss of earning capacity of the deceased, attorneys fees and
costs of suit and dismissing the complaint against the Estate of Macario Nieveras and Bernardo Balagot.
The antecedent facts are as follows:
Petitioner Municipality of San Fernando, La Union is a municipal corporation existing under and in accordance with
the laws of the Republic of the Philippines. Respondent Honorable Judge Romeo N. Firme is impleaded in his
official capacity as the presiding judge of the Court of First Instance of La Union, Branch IV, Bauang, La Union.
While private respondents Juana Rimando-Bania, Laureano Bania, Jr., Sor Marietta Bania, Montano Bania,
Orja Bania and Lydia R. Bania are heirs of the deceased Laureano Bania Sr. and plaintiffs in Civil Case No. 107-
Bg before the aforesaid court.
At about 7 oclock in the morning of December 16, 1965, a collision occurred involving a passenger jeepney driven
by Bernardo Balagot and owned by the Estate of Macario Nieveras, a gravel and sand truck driven by Jose
Manandeg and owned by Tanquilino Velasquez and a dump truck of the Municipality of San Fernando, La Union
and driven by Alfredo Bislig. Due to the impact, several passengers of the jeepney including Laureano Bania Sr.
died as a result of the injuries they sustained and four (4) others suffered varying degrees of physical injuries.
On December 11, 1966, the private respondents instituted a compliant for damages against the Estate of Macario
Nieveras and Bernardo Balagot, owner and driver, respectively, of the passenger jeepney, which was docketed Civil
Case No. 2183 in the Court of First Instance of La Union, Branch I, San Fernando, La Union. However, the
aforesaid defendants filed a Third Party Complaint against the petitioner and the driver of a dump truck of petitioner.
Thereafter, the case was subsequently transferred to Branch IV, presided over by respondent judge and was
subsequently docketed as Civil Case No. 107-Bg. By virtue of a court order dated May 7, 1975, the private
respondents amended the complaint wherein the petitioner and its regular employee, Alfredo Bislig were impleaded
for the first time as defendants. Petitioner filed its answer and raised affirmative defenses such as lack of cause of
action, non-suability of the State, prescription of cause of action and the negligence of the owner and driver of the
passenger jeepney as the proximate cause of the collision.
In the course of the proceedings, the respondent judge issued the following questioned orders, to wit:
(1) Order dated November 4, 1975 dismissing the cross-claim against Bernardo Balagot;
(2) Order dated July 13, 1976 admitting the Amended Answer of the Municipality of San Fernando,
La Union and Bislig and setting the hearing on the affirmative defenses only with respect to the
supposed lack of jurisdiction;
(3) Order dated August 23, 1976 deferring there resolution of the grounds for the Motion to Dismiss
until the trial;
(4) Order dated February 23, 1977 denying the motion for reconsideration of the order of July 13,
1976 filed by the Municipality and Bislig for having been filed out of time;
(5) Order dated March 16, 1977 reiterating the denial of the motion for reconsideration of the order of
July 13, 1976;
(6) Order dated July 26, 1979 declaring the case deemed submitted for decision it appearing that
parties have not yet submitted their respective memoranda despite the courts direction; and
(7) Order dated September 7, 1979 denying the petitioners motion for reconsideration and/or order
to recall prosecution witnesses for cross examination.
On October 10, 1979 the trial court rendered a decision, the dispositive portion is hereunder quoted as follows:
IN VIEW OF ALL OF (sic) THE FOREGOING, judgment is hereby rendered for the plaintiffs, and
defendants Municipality of San Fernando, La Union and Alfredo Bislig are ordered to pay jointly and
severally, plaintiffs Juana Rimando-Bania, Mrs. Priscilla B. Surell, Laureano Bania Jr., Sor
Marietta Bania, Mrs. Fe B. Soriano, Montano Bania, Orja Bania and Lydia B. Bania the sums of
P1,500.00 as funeral expenses and P24,744.24 as the lost expected earnings of the late Laureano
Bania Sr., P30,000.00 as moral damages, and P2,500.00 as attorneys fees. Costs against said
defendants.
The Complaint is dismissed as to defendants Estate of Macario Nieveras and Bernardo Balagot.
SO ORDERED. (Rollo, p. 30)
Petitioner filed a motion for reconsideration and for a new trial without prejudice to another motion which was then
pending. However, respondent judge issued another order dated November 7, 1979 denying the motion for
reconsideration of the order of September 7, 1979 for having been filed out of time.
Finally, the respondent judge issued an order dated December 3, 1979 providing that if defendants municipality and
Bislig further wish to pursue the matter disposed of in the order of July 26, 1979, such should be elevated to a
higher court in accordance with the Rules of Court. Hence, this petition.
Petitioner maintains that the respondent judge committed grave abuse of discretion amounting to excess of
jurisdiction in issuing the aforesaid orders and in rendering a decision. Furthermore, petitioner asserts that while
appeal of the decision maybe available, the same is not the speedy and adequate remedy in the ordinary course of
law.
On the other hand, private respondents controvert the position of the petitioner and allege that the petition is devoid
of merit, utterly lacking the good faith which is indispensable in a petition for certiorari and prohibition. (Rollo,
p. 42.) In addition, the private respondents stress that petitioner has not considered that every court, including
respondent court, has the inherent power to amend and control its process and orders so as to make them
conformable to law and justice. (Rollo, p. 43.)
The controversy boils down to the main issue of whether or not the respondent court committed grave abuse of
discretion when it deferred and failed to resolve the defense of non-suability of the State amounting to lack of
jurisdiction in a motion to dismiss.
In the case at bar, the respondent judge deferred the resolution of the defense of non-suability of the State
amounting to lack of jurisdiction until trial. However, said respondent judge failed to resolve such defense,
proceeded with the trial and thereafter rendered a decision against the municipality and its driver.
The respondent judge did not commit grave abuse of discretion when in the exercise of its judgment it arbitrarily
failed to resolve the vital issue of non-suability of the State in the guise of the municipality. However, said judge
acted in excess of his jurisdiction when in his decision dated October 10, 1979 he held the municipality liable for the
quasi-delict committed by its regular employee.
The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of the Constitution, to wit:
"the State may not be sued without its consent."
Stated in simple parlance, the general rule is that the State may not be sued except when it gives consent to be
sued. Consent takes the form of express or implied consent.
Express consent may be embodied in a general law or a special law. The standing consent of the State to be sued
in case of money claims involving liability arising from contracts is found in Act No. 3083. A special law may be
passed to enable a person to sue the government for an alleged quasi-delict, as in Merritt v. Government of the
Philippine Islands (34 Phil 311). (see United States of America v. Guinto, G.R. No. 76607, February 26, 1990, 182
SCRA 644, 654.)
Consent is implied when the government enters into business contracts, thereby descending to the level of the other
contracting party, and also when the State files a complaint, thus opening itself to a counterclaim. (Ibid)
Municipal corporations, for example, like provinces and cities, are agencies of the State when they are engaged in
governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject
to suit even in the performance of such functions because their charter provided that they can sue and be sued.
(Cruz, Philippine Political Law, 1987 Edition, p. 39)
A distinction should first be made between suability and liability. "Suability depends on the consent of the state to be
sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not
necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued.
Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its
sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable." (United
States of America vs. Guinto, supra, p. 659-660)
Anent the issue of whether or not the municipality is liable for the torts committed by its employee, the test of liability
of the municipality depends on whether or not the driver, acting in behalf of the municipality, is performing
governmental or proprietary functions. As emphasized in the case of Torio vs. Fontanilla (G. R. No. L-29993,
October 23, 1978. 85 SCRA 599, 606), the distinction of powers becomes important for purposes of determining the
liability of the municipality for the acts of its agents which result in an injury to third persons.
Another statement of the test is given in City of Kokomo vs. Loy, decided by the Supreme Court of Indiana in 1916,
thus:
Municipal corporations exist in a dual capacity, and their functions are twofold. In one they exercise
the right springing from sovereignty, and while in the performance of the duties pertaining thereto,
their acts are political and governmental. Their officers and agents in such capacity, though elected
or appointed by them, are nevertheless public functionaries performing a public service, and as such
they are officers, agents, and servants of the state. In the other capacity the municipalities exercise a
private, proprietary or corporate right, arising from their existence as legal persons and not as public
agencies. Their officers and agents in the performance of such functions act in behalf of the
municipalities in their corporate or individual capacity, and not for the state or sovereign power." (112
N.E., 994-995) (Ibid, pp. 605-606.)
It has already been remarked that municipal corporations are suable because their charters grant them the
competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the
discharge of governmental functions and can be held answerable only if it can be shown that they were acting in a
proprietary capacity. In permitting such entities to be sued, the State merely gives the claimant the right to show that
the defendant was not acting in its governmental capacity when the injury was committed or that the case comes
under the exceptions recognized by law. Failing this, the claimant cannot recover. (Cruz, supra, p. 44.)
In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way to the Naguilian
river to get a load of sand and gravel for the repair of San Fernandos municipal streets." (Rollo, p. 29.)
In the absence of any evidence to the contrary, the regularity of the performance of official duty is presumed
pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule that the driver of the dump
truck was performing duties or tasks pertaining to his office.
We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the District Engineer, and the
Provincial Treasurer (102 Phil 1186) that "the construction or maintenance of roads in which the truck and the driver
worked at the time of the accident are admittedly governmental activities."
After a careful examination of existing laws and jurisprudence, We arrive at the conclusion that the municipality
cannot be held liable for the torts committed by its regular employee, who was then engaged in the discharge of
governmental functions. Hence, the death of the passenger tragic and deplorable though it may be imposed
on the municipality no duty to pay monetary compensation.
All premises considered, the Court is convinced that the respondent judges dereliction in failing to resolve the issue
of non-suability did not amount to grave abuse of discretion. But said judge exceeded his jurisdiction when it ruled
on the issue of liability.
ACCORDINGLY, the petition is GRANTED and the decision of the respondent court is hereby modified, absolving
the petitioner municipality of any liability in favor of private respondents.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
HIRD DIVISION
G.R. No. 42204 January 21, 1993
HON. RAMON J. FAROLAN, JR., in his capacity as Commissioner of Customs, petitioner,
vs.
COURT OF TAX APPEALS and BAGONG BUHAY TRADING, respondents.
The Solicitor General for petitioner.
Jorge G. Macapagal counsel for respondent.
Aurea Aragon-Casiano for Bagong Buhay Trading.
ROMERO, J .:
This is a petition for review on certiorari which seeks to annul and set aside the decision of the Court of Tax Appeals
dated December 27, 1974 (CTA Case No. 2490) reversing the decision of the Commissioner of Customs which
affirmed the decision of the Collector of Customs.
1
The undisputed facts are as follows:
On January 30, 1972, the vessel S/S "Pacific Hawk" with Registry No. 170 arrived at the Port of Manila carrying,
among others, 80 bales of screen net consigned to Bagong Buhay Trading (Bagong Buhay). Said importation was
declared through a customs broker under Entry No. 8651-72 as 80 bales of screen net of 500 rolls with a gross
weight of 12,777 kilograms valued at $3,750.00 and classified under Tariff Heading No. 39.06-B of the Tariff and
Customs Code
2
at 35% ad valorem. Since the customs examiner found the subject shipment reflective of the declaration,
Bagong Buhay paid the duties and taxes due in the amount of P11,350.00 which was paid through the Bank of Asia under
Official Receipt No. 042787 dated February 1, 1972. Thereafter, the customs appraiser made a return of duty.
Acting on the strength of an information that the shipment consisted of "mosquito net" made of nylon dutiable under
Tariff Heading No. 62.02 of the Tariff and Customs Code, the Office of the Collector of Customs ordered a
re-examination of the shipment. A report on the re-examination revealed that the shipment consisted of 80 bales of
screen net, each bale containing 20 rolls or a total of 1,600 rolls.
3
Re-appraised, the shipment was valued at
$37,560.00 or $10.15 per yard instead of $.075 per yard as previously declared. Furthermore, the Collector of Customs
determined the subject shipment as made of synthetic (polyethylene) woven fabric classifiable under Tariff Heading No.
51.04-B at 100% ad valorem. Thus, Bagong Buhay Trading was assessed P272,600.00 as duties and taxes due on the
shipment in question.
4
Since the shipment was also misdeclared as to quantity and value, the Collector of Customs
forfeited the subject shipment in favor of the government.
5
Private respondent then appealed the decision of the Collector of Customs by filing a petition for review with the
Commissioner of Customs. On November 25, 1972 the Commissioner affirmed the Collector of Customs.
6
Private
respondent moved for reconsideration but the same was denied on January 22, 1973.
7
From the Commissioner of Customs, private respondent elevated his case before the Court of Tax Appeals. Upon
review, the Court of Tax Appeals reversed the decision of the Commissioner of Customs. It ruled that the
Commissioner erred in imputing fraud upon private respondent because fraud is never presumed and thus
concluded that the forfeiture of the articles in question was not in accordance with law. Moreover, the appellate court
stated that the imported articles in question should be classified as "polyethylene plastic" at the rate of 35%ad
valorem instead of "synthetic (polyethylene) woven fabric" at the rate of 100% ad valorem based upon the results
conducted by the Bureau of Customs Laboratory. Consequently, the Court of Tax Appeals ordered the release of
the said article upon payment of the corresponding duties and taxes. (C.T.A. Case No. 2490).
8
Thereafter, the Commissioner of Customs moved for reconsideration. On November 19, 1975, the Court of Tax
Appeals denied said motion for reconsideration.
9
On August 20, 1976, private respondent filed a petition asking for the release of the questioned goods which this
Court denied. After several motions for the early resolution of this case and for the release of goods and in view of
the fact that the goods were being exposed to the natural elements, we ordered the release of the goods on June 2,
1986. Consequently, on July 26, 1986, private respondent posted a cash bond of P149,443.36 to secure the release
of 64 bales
10
out of the 80 bales
11
originally delivered on January 30, 1972. Sixteen bales
12
remain missing.
Private respondent alleges that of the 143,454 yards (64 bales) released to Bagong Buhay, only 116,950 yards were
in good condition and the 26,504 yards were in bad condition. Consequently, private respondent demands that the
Bureau of Customs be ordered to pay for damages for the 43,050 yards
13
it actually lost.
14
Hence, this petition, the issues being; a) whether or not the shipment in question is subject to forfeiture under
Section 2530-M subparagraphs (3), (4) and (5) of the Tariff and Customs Code; b) whether or not the shipment in
question falls under Tariff Heading No. 39.06-B (should be 39.02-B) of the Tariff and Customs Code subject to ad
valorem duty of 35% instead of Tariff Heading No. 51.04-B with ad valorem of 100% and c) whether or not the
Collector of Customs may be held liable for the 43,050 yards actually lost by private respondent.
Section 2530, paragraph m, subparagraphs (3), (4) and (5) states:
Sec. 2530. Property Subject to Forfeiture Under Tariff and Customs Law. Any vehicle, vessel or
aircraft, cargo, article and other objects shall, under the following conditions be subjected to
forfeiture:
xxx xxx xxx
m. Any article sought to be imported or exported.
xxx xxx xxx
(3) On the strength of a false declaration or affidavit or affidavit executed by the
owner, importer, exporter or consignee concerning the importation of such article;
(4) On the strength of a false invoice or other document executed by the owner,
importer, exporter or consignee concerning the importation or exportation of such
article; and.
(5) Through any other practice or device contrary
to law by means of which such articles was entered through a custom-house to the
prejudice of government. (Emphasis supplied).
Petitioner contends that there has been a misdeclaration as to the quantity in rolls of the shipment in question, the
undisputed fact being that the said shipment consisted of 1,600 rolls and not 500 rolls as declared in the import
entry. We agree with the contention of the petitioner. In declaring the weight of its shipment in an import entry,
through its customs broker as 12,777 kilograms when in truth and in fact the actual weight is 13,600 kilograms, an
apparent misdeclaration as to the weight of the questioned goods was committed by private respondent. Had it not
been for a re-examination and re-appraisal of the shipment by the Collector of Customs which yielded a difference
of 823 kilograms, the government would have lost revenue derived from customs duties.
Although it is admitted that indeed there was a misdeclaration, such violation, however, does not warrant forfeiture
for such act was not committed directly by the owner, importer, exporter or consignee as set forth in Section 2530,
paragraph m, subparagraph (3), and/or (4).
In defense of its position denying the commission of misdeclaration, private respondent contends that its import
entry was based solely on the shipping documents and that it had no knowledge of any flaw in the said documents
at the time the entry was filed. For this reason, private respondent believes that if there was any discrepancy in the
quantity of the goods as declared and as examined, such discrepancy should not be attributed to Bagong Buhay.
15
Private respondents argument is persuasive. Under Section 2530, paragraph m, subparagraphs (3) and (4), the
requisites for forfeiture are: (1) the wrongful making by the owner, importer, exporter or consignees of any
declaration or affidavit, or the wrongful making or delivery by the same persons of any invoice, letter or paper all
touching on the importation or exportation of merchandise; and (2) that such declaration, affidavit, invoice, letter or
paper is false.
16
In the case at bar, although it cannot be denied that private respondent caused to be prepared through its customs
broker a false import entry or declaration, it cannot be charged with the wrongful making thereof because such entry
or declaration merely restated faithfully the data found in the corresponding certificate of origin,
17
certificate of
manager of the shipper,
18
the packing lists
19
and the bill of lading
20
which were all prepared by its
suppliers abroad. If, at all, the wrongful making or falsity of the documents above-mentioned can only be attributed to
Bagong Buhays foreign suppliers or shippers.
With regard to the second requirement on falsity, it bears mentioning that the evidence on record, specifically, the
decisions of the Collector of Customs and the Commissioner of Customs, do not reveal that the importer or
consignee, Bagong Buhay Trading had any knowledge of any falsity on the subject importation.
Since private respondents misdeclaration can be traced directly to its foreign suppliers, Section 2530, paragraph m,
subparagraphs (3) and (4) cannot find application.
Applying subparagraph (5), fraud must be committed by an importer/consignee to evade payment of the duties
due.
21
We support the stance of the Court of Tax Appeals that the Commissioner of Customs failed to show that fraud
had been committed by the private respondent. The fraud contemplated by law must be actual and not constructive. It
must be intentional fraud, consisting of deception willfully and deliberately done or resorted to in order to induce another to
give up some right.
22
As explained earlier, the import entry was prepared on the basis of the shipping documents provided
by the foreign supplier or shipper. Hence, Bagong Buhay Trading can be considered to have acted in good faith when it
relied on these documents.
Proceeding now to the question of the correct classification of the questioned shipments, petitioner contends that
the same falls under Tariff Heading No. 51.04 being a "synthetic (polyethylene) woven fabric." On the other hand,
private respondent contends that these fall under Tariff Heading No. 39.06 (should be 39.02), having been found to
be made of polyethylene plastic.
Heading No. 39.02 of the Tariff and Customs Code provides:
39.02 Polymerisation and copolymerisation products (for example, polyethylene,
polytetrahaloethylene, polyisobutylene, polystyrene, polyvinyl chloride, polyvinyl acetate, polyvinyl
chloroacetate and other polyvinyl derivatives, polyacrylic and polymethacrylic derivatives,
coumaroneindene resins).
The principal products included in this heading are:
(1) Polymerization products of ethylene or its substitution derivatives, particularly the halogen
derivatives.
Examples of these are polyethylene, polytetrafluro-ethylene and polychlorotrifluro-ethylene. Their
characteristic is that they are translucent, flexible and light in weight. They are used largely for insulating electric
wire.
23
On the other hand, Tariff Heading No. 51.04 provides:
51.04. Woven fabrics of man-made fibers (continuous) including woven fabrics of monofil or strip
of heading No. 51.01 or 51.02.
This heading covers woven fabrics (as described in Part [I] [C] of the General Explanatory Note on
Section XI) made of yarns of continuous man-made fibers, or of monofil or strip of heading 51.01
and 51.02; it includes a very large variety of dress fabrics, linings, curtain materials, furnishing
fabrics, tyre fabrics, tent fabrics, parachute fabrics, etc.
24
(Emphasis supplied)
To correctly classify the subject importation, we need to refer to chemical analysis submitted before the Court of Tax
Appeals. Mr. Norberto Z. Manuel, an Analytical Chemist of the Bureau of Customs and an Assistant to the Chief of
the Customs Laboratory, testified that a chemical test was conducted on the sample
25
and "the result is that the
attached sample submitted under Entry No. 8651 was found to be made wholly of Polyethylene plastic."
26
A similar result conducted by the Adamson University Testing Laboratories provides as follows:
The submitted sample, being insoluble in 10% sodium carbonate; hydrochloric acid, glacial acetic
acid, toluene, acetone, formic acid, and nitric acid, does not belong to the man-made fibers, i.e.,
cellulosic and alginate rayons, poly (vinyl chloride), polyacrylonitrile, copolymer or polyester silicones
including Dolan, Dralon, Orlin, PAN, Redon, Courtelle, etc., Tarylene, Dacron; but it is a type of
plastic not possessing, the properties of the man-made fibers.
27
(Emphasis supplied)
Consequently, the Court of Tax Appeals, relying on the laboratory findings of the Bureau of Customs and Adamson
University correctly classified the questioned shipment as polyethylene plastic taxable under Tariff Heading No.
39.02 instead of synthetic (polyethylene) woven fabric under Tariff Heading 51.04, to wit:
While it is true that the finding and conclusion of the Collector of Customs with respect to
classification of imported articles are presumptively correct, yet as matters that require laboratory
tests or analysis to arrive at the proper classification, the opinion of the Collector must yield to the
finding of an expert whose opinion is based on such laboratory test or analysis unless such
laboratory analysis is shown to be erroneous. And this is especially so in this case where the test
and analysis were made in the laboratory of the Bureau of Customs itself. It has not been shown
why such laboratory finding was disregarded. There is no claim or pretense that an error was
committed by the laboratory technician. Significantly, the said finding of the Chief, Customs
Laboratory finds support in the "REPORT OF ANALYSIS" submitted by the Adamson University
Testing Laboratories, dated September 21, 1966.
28
On the third issue, we opine that the Bureau of Customs cannot be held liable for actual damages that the private
respondent sustained with regard to its goods. Otherwise, to permit private respondents claim to prosper would
violate the doctrine of sovereign immunity. Since it demands that the Commissioner of Customs be ordered to pay
for actual damages it sustained, for which ultimately liability will fall on the government, it is obvious that this case
has been converted technically into a suit against the state.
29
On this point, the political doctrine that "the state may not be sued without its consent," categorically applies.
30
As an
unincorporated government agency without any separate juridical personality of its own, the Bureau of Customs enjoys
immunity from suit. Along with the Bureau of Internal Revenue, it is invested with an inherent power of sovereignty,
namely, taxation. As an agency, the Bureau of Customs performs the governmental function of collecting revenues which
is definitely not a proprietary function. Thus, private respondents claim for damages against the Commissioner of
Customs must fail.
WHEREFORE, the decision of the respondent Court of Tax Appeals is AFFIRMED. The Collector of Customs is
directed to expeditiously re-compute the customs duties applying Tariff Heading 39.02 at the rate of 35% ad
valorem on the 13,600 kilograms of polyethylene plastic imported by private respondent.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ., concur.
# Footnotes
1 Customs Case No. 72-29 entitled "Republic of the Philippines versus 80 bales screen net, Entry
No. 8651 (72) ex S/S "Pacific Hawk," Reg. No. 170 marks B.B.T. Manila, Bagong Buhay Trading,
Claimant."
2 Should be Tariff Heading No. 39.02-B.
3 Rollo, pp. 227-228, Exhibits "D" and "D-1."
4 Rollo, pp. 229-230.
5 Rollo, pp. 42-43, Annex C.
6 Rollo, pp. 48-51, Annex E.
7 Rollo, pp. 54-55, Annex G.
8 Rollo, pp. 30-37, Annex A.
9 Rollo, pp. 38-41, Annex B.
10 Consisting of 143,454 yards.
11 Consisting of 160,000 yards the total yardage of the questioned goods.
12 Consisting of 16,546 yards.
13 Derived by adding 26,504 yards in bad order condition plus 16,546 yards missing.
14 Rollo, p. 372.
15 Rollo, p. 143 and Brief for Respondent-Appellee, p. 9.
16 Farm Implement and Machinery Co. v. Commissioner of Customs, L-22212, August 30, 1968, 24
SCRA 905.
17 Exhibit "4," p. 220, Customs Records.
18 Exhibit "5," p. 239, Customs Records.
19 Exhibit "6," pp. 217-218, Customs Records.
20 p. 193. Customs Records.
21 Farm Implement and Machinery Co., Id at Footnote 11.
22 Aznar v. Court of Tax Appeals, No. L-20569, August 23, 1974, 58 SCRA 519.
23 Commentaries on the Revised Tariff and Customs Code of the Philippines, Vol. II, pp. 1170-1171,
1984 Revised Edition, Montano A. Tejam.
24 Ibid, p. 1351.
25 TSN, p. 96, Hearing of May 11, 1972.
26 Rollo, p. 251, Exhibit "F," Emphasis supplied.
27 Exhibit "I," p. 223, Records, Rollo, p. 248.
28 Rollo, pp. 35-36.
29 Syquia v. Almeda Lopez, 84 Phil. 312.
30 Sec. 3, Article XVI, General Provisions, 1987 Constitution.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 97882 August 28, 1996
THE CITY OF ANGELES, Hon. ANTONIO ABAD SANTOS, in his capacity as MAYOR of Angeles City, and the
SANGGUNIANG PANLUNGSOD OF THE CITY OF ANGELES, petitioners,
vs.
COURT OF APPEALS and TIMOG SILANGAN DEVELOPMENT CORPORATION, respondents.
PANGANIBAN, J .:p
In resolving this petition, the Court addressed the questions of whether a donor of open spaces in a residential
subdivision can validly impose conditions on the said donation; whether the city government as donee can build and
operate a drug rehabilitation center on the donated land intended for open space; and whether the said donation
may be validly rescinded by the donor.
Petitioners claim they have the right to construct and operate a drug rehabilitation center on the donated land in
question, contrary to the provisions stated in the amended Deed of Donation.
On the other hand, private respondent, owner/developer of the Timog Park residential subdivision in Angeles City,
opposed the construction and now, the operation of the said center on the donated land, which is located within said
residential subdivision.
Before us is a petition for review on certiorari assailing the Decision
1
of the Court of Appeals
2
dated October 31, 1990,
which affirmed the decision
3
of the Regional Trial Court of Angeles City Branch 56,
4
dated February 15, 1989.
The Antecedents
In a Deed of Donation dated March 9, 1984, subsequently superseded by a Deed of Donation dated September 27,
1984, which in turn was superseded by an Amended Deed of Donation dated November 26, 1984, private
respondent donated to the City of Angeles, 51 parcels of land situated in Barrio Pampang, City of Angeles, with an
aggregate area of 50,676 square meters, more or less, part of a bigger area also belonging to private respondent.
The amended deed
5
provided, among others, that:
2. The properties donated shall be devoted and utilized solely for the site of the Angeles City Sports
Center (which excludes cockfighting) pursuant to the plans to be submitted within six (6) months by
the DONEE to the DONOR for the latters approval, which approval shall not be unreasonably
withheld as long as entire properties donated are developed as a Sports Complex. Any change or
modification in the basic design or concept of said Sports Center must have the prior written consent
of the DONOR.
3. No commercial building, commercial complex, market or any other similar complex, mass or
tenament (sic) housing/building(s) shall be constructed in the properties donated nor shall
cockfighting, be allowed in the premises.
4. The construction of the Sports Center shall commence within a period of one (1) year from March
9, 1984 and shall be completed within a period of five (5) years from March 9, 1984.
xxx xxx xxx
6. The properties donated (which is more than five (5) percent of the total land area of the DONORs
subdivision) shall constitute the entire open space for DONORs subdivision and all other lands or
areas previously reserved or designated, including Lot 1 and Lot 2A of Block 72 and the whole Block
29 are dispensed with, and rendered free, as open spaces, and the DONEE hereby agrees to
execute and deliver all necessary consents, approvals, endorsements, and authorizations to effect
the foregoing.
7. The properties donated are devoted and described as "open spaces" of the DONORs subdivision,
and to this effect, the DONEE, upon acceptance of this donation, releases the DONOR and/or
assumes any and all obligations and liabilities appertaining to the properties donated.
8. Any substantial breach of the foregoing provisos shall entitle the DONOR to revoke or rescind this
Deed of Donation, and in such eventuality, the DONEE agrees to vacate and return the premises,
together with all improvements, to the DONOR peacefully without necessity of judicial action.
On July 19, 1988, petitioners started the construction of a drug rehabilitation center on a portion of the donated land.
Upon learning thereof, private respondent protested such action for being violative of the terms and conditions of the
amended deed and prejudicial to its interest and to those of its clients and residents. Private respondent also offered
another site for the rehabilitation center. However, petitioners ignored the protest, maintaining that the construction
was not violative of the terms of the donation. The alternative site was rejected because, according to petitioners,
the site was too isolated and had no electric and water facilities.
On August 8, 1988, private respondent filed a complaint with the Regional Trial Court, Branch 56, in Angeles City
against the petitioners, alleging breach of the conditions imposed in the amended deed of donation and seeking the
revocation of the donation and damages, with preliminary injunction and/or temporary restraining order to halt the
construction of the said center.
On August 10, 1988, the trial court issued a temporary restraining order to enjoin the petitioners from further
proceeding with the construction of the center, which at that time was already 40% complete.
However, the trial court denied the prayer for preliminary injunction based on the prohibition in Presidential Decree
No. 1818.
In their Answer with counterclaim, petitioners admitted the commencement of the construction but alleged inter
aliathat the conditions imposed in the amended deed were contrary to Municipal Ordinance No. 1, Series of 1962,
otherwise known as the Subdivision Ordinance of the Municipality of Angeles.
6
On October 15, 1988, private respondent filed a Motion for Partial Summary Judgment on the ground that the main
defense of the petitioners was anchored on a pure question of law and that their legal position was untenable.
The petitioners opposed, contending that they had a meritorious defense as (1) private respondents had no right to
dictate upon petitioners what to do with the donated land and how to do it so long as the purpose remains for public
use; and (2) the cause of action of the private respondent became moot and academic when the Angeles City
Council repealed the resolution providing for the construction of said drug rehabilitation center and adopted a new
resolution changing the purpose and usage of said center to a "sports development and youth center" in order to
conform with the sports complex project constructed on the donated land.
On February 15, 1989, the trial court rendered its decision, in relevant part reading as follows:
. . . the Court finds no inconsistency between the conditions imposed in the Deeds of Donation and
the provision of the Subdivision Ordinance of the City of Angeles requiring subdivisions in Angeles
City to reserve at least one (1) hectare in the subdivision as suitable sites known as open spaces for
parks, playgrounds, playlots and/or other areas to be rededicated to public use. On the contrary, the
condition requiring the defendant city of Angeles to devote and utilize the properties donated to it by
the plaintiff for the site of the Angeles City Sports Center conforms with the requirement in the
Subdivision Ordinance that the subdivision of the plaintiff shall be provided with a playground or
playlot, among others.
On the other hand the term "public use" in the Subdivision Ordinance should not be construed to
include a Drug Rehabilitation Center as that would be contrary to the primary purpose of the
Subdivision Ordinance requiring the setting aside of a portion known as "Open Space" for park,
playground and playlots, since these are intended primarily for the benefit of the residents of the
subdivision. While laudable to the general public, a Drug Rehabilitation Center in a subdivision will
be a cause of concern and constant worry to its residents.
As to the third issue in paragraph (3), the passage of the Ordinance changing the purpose of the
building constructed in the donated properties from a Drug Rehabilitation Center to a Sports Center
comes too late. It should have been passed upon the demand of the plaintiff to the defendant City of
Angeles to stop the construction of the Drug Rehabilitation Center, not after the complaint was filed.
Besides, in seeking the revocation of the Amended Deed of Donation, plaintiff also relies on the
failure of the defendant City of Angeles to submit the plan of the proposed Sports Center within six
(6) months and construction of the same within five years from March 9, 1984, which are substantial
violations of the conditions imposed in the Amended Deed of Donation.
The dispositive portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered:
(1) Enjoining defendants, its officers, employees and all persons acting on their behalf to perpetually
cease and desist from constructing a Drug Rehabilitation Center or any other building or
improvement on the Donated Land.
(2) Declaring the amended Deed of Donation revoked and rescinded and ordering defendants to
peacefully vacate and return the Donated Land to plaintiff, together with all the improvements
existing thereon. And,
(3) Denying the award of compensatory or actual and exemplary damages including attorneys fees.
NO PRONOUNCEMENT AS TO COST.
In March 1989, petitioners fried their Notice of Appeal. On April 15, 1989 while the appeal was pending, petitioners
inaugurated the Drug Rehabilitation Center.
7
On April 26, 1991, the respondent Court rendered the assailed Decision affirming the ruling of the trial court.
Subsequently, the petitioners motion for re-consideration was also denied for lack of merit.
Consequently, this Petition for Review.
The Issues
The key issues
8
raised by petitioners may be restated as follows:
I. Whether a subdivision owner/developer is legally bound under Presidential Decree No. 1216 to
donate to the city or municipality the "open space" allocated exclusively for parks, playground and
recreational use.
II. Whether the percentage of the "open space" allocated exclusively for parks, playgrounds and
recreational use is to be based on the "gross area" of the subdivision or on the total area reserved
for "open space".
III. Whether private respondent as subdivision owner/developer may validly impose conditions in the
Amended Deed of Donation regarding the use of the "open space" allocated exclusively for parks
and playgrounds..
IV. Whether or not the construction of the Drug Rehabilitation Center on the donated "open space"
may be enjoined.
V. Whether the donation by respondents subdivision owner/developer of the "open space" of its
subdivision in favor of petitioner City of Angeles may be revoked for alleged violation of the
Amended Deed of Donation.
Central to this entire controversy is the question of whether the donation of the open space may be revoked at all.
First Issue: Developer Legally Bound to Donate Open Space
The law involved in the instant case is Presidential Decree No. 1216, dated October 14, 1977,
9
which reads:
PRESIDENTIAL DECREE NO. 1216
Defining "Open Space" In Residential Subdivisions And Amending Section 31 Of Presidential
Decree No. 957 Requiring Subdivision Owners To Provide Roads, Alleys, Sidewalks And Reserve
Open Space For Parks Or Recreational Use.
WHEREAS, there is a compelling need to create and maintain a healthy environment in human
settlements by providing open spaces, roads, alleys and sidewalks as may be deemed suitable to
enhance the quality of life of the residents therein;
WHEREAS, such open spaces, roads, alleys and sidewalks in residential subdivisions are for public
use and are, therefore, beyond the commerce of men;
WHEREAS, pursuant to Presidential Decree No. 953 at least thirty percent (30%) of the total area of
a subdivision must be reserved, developed and maintained as open space for parks and recreational
areas, the cost of which will ultimately be borne by the lot buyers which thereby increase the
acquisition price of subdivision lots beyond the reach of the common mass;
WHEREAS, thirty percent (30%) required open space can be reduced to a level that will make the
subdivision industry viable and the price of residential lots within the means of the low income group
at the same time preserve the environmental and ecological balance through rational control of land
use and proper design of space and facilities;
WHEREAS, pursuant to Presidential Decree No. 757, government efforts in housing, including
resources, functions and activities to maximize results have been concentrated into one single
agency, namely, the National Housing Authority;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me by the Constitution, do hereby order and decree:
Sec. 1. For purposes of this Decree, the term "open apace" shall mean an area reserved exclusively
for parks, playgrounds, recreational uses, schools, roads, places of worship, hospitals, health
centers, barangay centers and other similar facilities and amenities.
Sec. 2. Section 31 of Presidential Decree No. 957 is hereby amended to read as follows:
Sec. 31. Roads, Alleys, Sidewalks and Open Spaces The owner as developer of a
subdivision shall provide adequate roads, alleys and sidewalks. For subdivision
projects one (1) hectare or more, the owner or developer shall reserve thirty percent
(30%) of the gross area for open space. Such open space shall have the following
standards allocated exclusively for parks, playgrounds and recreational use:
a. 9% of gross area for high density or social housing (66 to 100 family lots per gross
hectare).
b. 7% of gross area for medium-density or economic housing (21 to 65 family lots per
gross hectare).
c. 3.5% of gross area for low-density or open market housing (20 family lots and
below per gross hectare).
These areas reserved for parks, playgrounds and recreational use shall be non-alienable public
lands, and non-buildable. The plans of the subdivision project shall include tree planting on such
parts of the subdivision as may be designated by the Authority.
Upon their completion certified to by the Authority, the roads, alleys, sidewalks and playgrounds
shall be donated by the owner or developer to the city or municipality and it shall be mandatory for
the local governments to accept provided, however, that the parks and playgrounds maybe donated
to the Homeowners Association of the project with the consent of the city or municipality concerned.
No portion of the parks and playgrounds donated thereafter shall be converted to any other purpose
or purposes.
Sec. Sections 2 and 5 of Presidential Decree No. 953 are hereby repealed and other laws, decrees,
executive orders, institutions, rules and regulations or parts thereof inconsistent with these
provisions are also repealed or amended accordingly.
Sec. 4. This Decree shall take effect immediately.
Pursuant to the wording of Sec. 31 of P.D. 957 as above amended by the aforequoted P.D. No. 1216, private
respondent is under legal obligation to donate the open space exclusively allocated for parks, playgrounds and
recreational use to the petitioner.
This can be clearly established by referring to the original provision of Sec. 31 of P.D. 957, which reads as follows:
Sec. 31. Donation of roads and open spaces to local government The registered owner developer
of the subdivision or condominium project, upon completion of the development of said project may,
at his option, convey by way of donation the roads and open spaces found within the project to the
city or municipality wherein the project is located. Upon acceptance of he donation by the city or
municipality concerned, no portion of the area donated shall thereafter be converted to any other
purpose or purposes unless after hearing, the proposed conversion is approved by the Authority.
(Emphasis supplied)
It will be noted that under the aforequoted original provision, it was optional on the part of the owner or developer to
donate the roads and spaces found within the project to the city or municipality where the project is located.
Elsewise stated, there was no legal obligation to make the donation.
However, said Sec. 31 as amended now states in its last paragraph:
Upon their completion . . ., the roads, alleys, sidewalks and playgrounds shall be donated by the
owner or developer to the city or municipality and it shall be mandatory for the local government to
accept; provided, however, that the parks and playgrounds may be donated to the Homeowners
Association of the project with the consent of the city or must concerned. . . .
It is clear from the aforequoted amendment that it is no longer optional on the part of the subdivision
owner/developer to donate the grounds; rather there is now a legal obligation to donate the same. Although
there is a proviso a proviso that the donation of the parks and playgrounds may be made to the homeowners
association of the project with the consent of the city of municipality, concerned, nonetheless, the
owner/developer is still obligated under the law to donate. Such option does not change the mandatory
hectare of the provision. The donation has to be made regardless of which donee is picked by the
owner/developer. The consent requirement before the same can be donated to the homeowners"
association emphasizes this point.
Second Issue: Percentage of Area for Parks and Playgrounds
Petitioners contend that the 3.5% to 9% allotted by Sec. 31 for parks, playgrounds and recreational uses should be
based on the gross area of the entire subdivision, and not merely on the area of the open space alone, as
contended by private respondent and as decided by the respondent Court.
10
The petitioners are correct. The language of Section 31 of P.D. 957 as amended by Section 2 of P.D. 1216 is
wanting in clarity and exactitude, but it can be easily inferred that the phrase "gross area" refers to the entire
subdivision area. The said phrase was used four times in the same section in two sentences, the first of which
reads:
. . . For subdivision projects one (1) hectare or more, the owner or more, the owner or developer
shall reserve thirty percent (30%) of the gross area for open space, . . .
Here, the phrase "30% of the gross area" refers to the total area of the subdivision, not of the open space.
Otherwise, the definition of "open space" would be circular. Thus, logic dictates that the same basis be applied in
the succeeding instances where the phrase "open space" is used, i.e., "9% of gross area... 7% of gross area... 3.5%
of gross area..." Moreover, we agree with petitioners that construing the 3.5% to 9% as applying to the totality of
the open space would result in far too small an area being devoted for parks, playgrounds, etc., thus rendering
meaningless and defeating the purpose of the statute. This becomes clear when viewed in the light of the original
requirement of P.D. 953 ("Requiring the Planting of Trees in Certain Places, etc."), section 2 of which reads:
Sec. 2. Every owner of land subdivided into commerce/residential/industrial lots after the effectivity
of this Decree shall reserve, develop and maintain not less than thirty percent (30%) of the total area
of the subdivision, exclusive of roads, service streets and alleys, as open space for parks and
recreational areas.
No plan for a subdivision shall be approved by the Land Registration Commission or any office or
agency of the government unless at least thirty percent (30%) of the total area of the subdivision,
exclusive, of roads, service streets and alleys, is reserved as open space for parks and recreational
areas . . .
To our mind, it is clear that P.D. 1216 was an attempt to achieve a happy compromise and a realistic balance
between the imperatives of environmental planning and the need to maintain economic feasibility in subdivision and
housing development, by reducing the required area for parks, playgrounds and recreational uses from thirty
percent (30%) to only 3.5% 9% of the entire area of the subdivision.
Third Issue: Imposition of Conditions in Donation of Open Space
Petitioners argue that since the private respondent is required by law to donate the parks and playgrounds, it has no
right to impose the condition in the Amended Deed of Donation that "the properties donated shall be devoted and
utilized solely for the site of the Angeles City Sports Center." It cannot prescribe any condition as to the use of the
area donated because the use of the open spaces already governed by P.D. 1216. In other words, the donation
should be absolute. Consequently, the conditions in the amended deed which were allegedly violated aredeemed
not written. Such being the case, petitioners cannot be considered to have committed any violation of the terms and
conditions of the said amended deed, as the donation is deemed unconditional, and it follows that there is no basis
for revocation of the donation.
However, the general law on donations does not prohibit the imposition of conditions on a donation so long as the
conditions are not illegal or
impossible.
11
In regard to donations of open spaces, P.D. 1216 itself requires among other things that the recreational areas to be
donated be based, as aforementioned, on a percentage (3.5% 7%, or 9%) of the total area of the subdivision
depending on whether the division is low , medium , or high-density. It further declares that such open space
devoted to parks, playgrounds and recreational areas are non-alienable public land and non-buildable. However,
there is no prohibition in either P.D. 957 or P.D. 1216 against imposing conditions on such donation.
We hold that any condition may be imposed in the donation, so long as the same is not contrary to law, morals,
good customs, public order or public policy. The contention of petitioners that the donation should be unconditional
because it is mandatory has no basis in law. P.D. 1216 does not provide that the donation the open space for parks
and playgrounds should be unconditional. To rule that it should be so is tantamount to unlawfully expanding, the
provisions of the decree.
12
In the case at bar, one of the conditions imposed in the Amended Deed of Donation is that the donee should build a
sports complex on the donated land. Since P.D. 1216 clearly requires that the 3.5% to 9% of the gross area alloted
for parks and playgrounds is "non-buildable", then the obvious question arises whether or not such condition was
validly imposed and is binding on the donee. It is clear that the "non-buildable" character applies only to the 3.5% to
9% area set by law. If there is any excess land over and above the 3.5% to 9% required by the decree, which is also
used or allocated for parks, playgrounds and recreational purposes, it is obvious that such excess area is not
covered by the non-buildability restriction. In the instant case, if there be an excess, then the donee would not be
barred from developing and operating a sports complex thereon, and the condition in the amended deed would then
be considered valid and binding.
To determine if the over 50,000 square meter area donated pursuant to the amended deed would yield an excess
over the area required by the decree, it is necessary to determine under which density category the Timog Park
subdivision falls.
If the subdivision falls under the low density or open market housing category, with 20 family lots or below per gross
hectare, the developer will need to allot only 3.5% of gross area for parks and playgrounds, and since the donated
land constitutes "more than five (5) percent of the total land area of the subdivision
13
there would therefore be an
excess of over 1.5% of gross area which would not be non-buildable. Petitioners, on the other hand, alleged (and private
respondent did not controvert) that the subdivision in question is a "medium-density or economic housing" subdivision
based on the sizes of the family lots donated in the amended deed,
14
for which category the decree mandates that not
less than 7% of gross area be set aside. Since the donated land constitutes only a little more than 5% of the gross area of
the subdivision, which is less than the area required to be allocated for non-buildable open space, therefore there is no
"excess land" to speak of. This then means that the condition to build a sports complex on the donated land is contrary to
law and should be considered as not imposed.
Fourth Issue: Injunction vs. Construction of the Drug
Rehabilitation Center
Petitioners argue that the court cannot enjoin the construction of the drug rehabilitation center because the decision
of the court came only after the construction of the center was completed and, based on jurisprudence, there can be
no injunction unction of events that have already transpired.
15
Private respondent, on the other hand, counters that the operation of the center is a continuing act which would
clearly cause injury to private respondent, its clients, and residents of the subdivision, and thus, a proper subject of
injunction.
16
Equity should move in to granting of the injunctive relief if persistent repetition of the wrong is threatened.
In light of Sec. 31 of P.D. 957, as amended, declaring the open space for parks, playgrounds and recreational area
as non-buildable, it appears indubitable that the construction and operation of a drug rehabilitation center on the
land in question is a continuing violation of the law and thus should be enjoined.
Furthermore, the factual background of this case warrants that this Court rule against petitioners on this issue. We
agree with and affirm the Courts finding that petitioners committed acts mocking the judicial system.
18
. . . When a writ of preliminary injunction was sought for by the appellee (private respondent) to
enjoin the appellants [petitioners herein] from further continuing with the construction of the
appellants the said center, the latter resisted and took refuge under the provisions of Presidential
Decree No. 1818 (which prohibits writs of preliminary injunction) to continue with the construction of
the building. Yet, the appellants also presented "City Council Resolution No. 227 which allegedly
repealed the previous Resolution authorizing the City Government to construct a Drug Rehabilitation
Center on the donated property, by "changing the purpose and usage of the Drug Rehabilitation
Center to Sports Development and Youth Center to make it conform to the Sports Complex Project
therein". Under this Resolution No. 227, the appellants claimed that they have abandoned all plans
for the construction of the Drug Rehabilitation Nonetheless, when judgment was finally rendered on
February 15, 1989, the appellants were quick to state that they have not after all abandoned their
plans for the center as they have in fact inaugurated the same April 15, 1989. In plain and simple
terms, this act is a mockery of our judicial system perpetrated by the appellants. For them to argue
that the court deal on their Drug Rehabilitation Center is not only preposterous but also ridiculous.
It is interesting to observe that under the appealed decision the appellants and their officers,
employees and all other persons acting on their behalf were perpetually enjoined to cease and
desist from constructing a Drug Rehabilitation Center on the donated property. Under Section 4 of
Rule 39 of the Rules of Court, it is provided that:
Sec. 4 A judgment in an action for injunction shall not be stayed after its rendition and before an
appeal is taken or during the tendency of an appeal .
Accordingly, a judgment restraining a party from doing a certain act is enforceable and shall remain
in full force and effect appeal. In the case at bar, the cease and desist order therefore still stands.
Appellants persistence and continued construction and, subsequent, operation of the Drug
Rehabilitation Center violate the express terms of the writ of injunction lawfully issued by the lower
court.
This Court finds no cogent reason to reverse the above mentioned findings of the respondent court. The allegation
of the petitioners that the construction of the center was finished before the judgment of the trial court was rendered
deserves scant consideration because it is self-serving and is completely unsupported by other evidence.
The fact remains that the trial court rendered judgment enjoining the construction of the drug rehabilitation center,
revoking the donation and ordering the return of the donated land. In spite of such injunction, petitioners publicly
flaunted their disregard thereof with the subsequent inauguration of the center on August 15, 1989. The operation o
the center, after inauguration, is even more censurable
Fifth Issue: Revocation of a Mandatory Donation Because of Non-
compliance With an Illegal Condition
The private respondent contends that the building of said drug rehabilitation center is violative of the Amended Deed
of Donation. Therefore, under Article 764 of the New Civil Code and stipulation no. 8 of the amended deed, private
respondent is empowered to revoke the donation when the donee has failed to comply with any of the conditions
imposed in the deed.
We disagree. Article 1412 of the Civil Code which provides that:
If the act in which the unlawful or forbidden cause consists does not constitute a criminal offense, the
following rules shall be observed:
(1) When the fault is on the part of both contracting parties, neither may recover what he has given
by virtue of the contract, or demand the performance of the others undertaking;
comes into play here. Both petitioners and private respondents are in violation of P.D. 957 as amended, for
donating and accepting a donation of open space less than that required by law, and for agreeing to build
and operate a sports complex on the non-buildable open space so donated; and petitioners, for constructing
a drug rehabilitation center on the same non-buildable area.
Moreover, since the condition to construct a sport complex on the donated land has previously been shown to be
contrary to law, therefore, stipulation no. 8 of the amended deed cannot be implemented because (1)
no validstipulation of the amended deed had been breached, and (2) it is highly improbable that the decree would
have allowed the return of the donated land for open space under any circumstance, considering the non-alienable
character of such open space, in the light of the second Whereas clause of P.D. 1216 which declares that . . . such
open spaces, roads, alleys and sidewalks in residential subdivisions are for public use and are, therefore, beyond
the commerce of men.
Further, as a matter of public policy, private respondent cannot be allowed to evade its statutory obligation to donate
the required open space through the expediency of invoking petitioners breach of the aforesaid condition. It is a
familiar principle that the courts will not aid either party to enforce an illegal contract, but will leave them both where
they find them. Neither party can recover damages from the other arising from the act contrary to law, or plead the
same as a cause of action or as a defense. Each must bear the consequences of his own acts.
19
There is therefore no legal basis whatsoever to revoke the donation of the subject open space and to return the
donated land to private respondent. The donated land should remain with the donee as the law clearly intended
such open spaces to be perpetually part of the public domain, non-alienable and permanently devoted to public use
as such parks, playgrounds or recreation areas.
Removal/Demolition of Drug Rehabilitation Center
Inasmuch as the construction and operation of the drug rehabilitation center has been established to law, the said
center should be removed or demolished. At this juncture, we hasten to add that this Court is and has always been
four-square behind the governments efforts to eradicate the drug scourge in this country. But the end never justifies
the means, and however laudable the purpose of the construction in question, this Court cannot and will not
countenance an outright and continuing violation of the laws of the land, especially when committed by public
officials.
In theory, the cost of such demolition, and the reimbursement of the public funds expended in the construction
thereof, should be borne by the officials of the City Angeles who ordered and directed such construction. This Court
has time and again ruled that public officials are not immune from damages in their personal capacities arising from
acts done in bad faith. Otherwise stated, a public official may be liable in his personal capacity for whatever damage
he may have caused by his act done with malice and in bad faith or beyond the scope of his authority or
jurisdiction.
20
In the instant case, the public officials concerned deliberately violated the law and persisted in their
violations, going so far as attempting to deceive the courts by their pretended change of purpose and usage for the enter,
and "making a mockery of the judicial system". Indisputably, said public officials acted beyond the scope of their authority
and jurisdiction and with evident bad faith. However, as noted by the trial court
21
, the petitioners mayor and members of
the Sangguniang Panlungsod of Angeles City were sued only in their official capacities, hence, they could not be held
personally liable without first giving them their day in court. Prevailing jurisprudence
22
holding that public officials are
personally liable for damages arising from illegal acts done in bad faith are premised on said officials having been sued
both in their official and personal capacities.
After due consideration of the circumstances, we believe that the fairest and most equitable solution is to have the
City of Angeles, donee of the subject open space and, ostensibly, the main beneficiary of the construction and
operation of the proposed drug rehabilitation center, undertake the demolition and removal of said center, and if
feasible, recover the cost thereof from the city officials concerned.
WHEREFORE, the assailed Decision of the Court of appeals hereby MODIFIED as follows:
(1) Petitioners are hereby ENJOINED perpetually from operating the drug rehabilitation center or any other such
facility on the donated open space.
(2) Petitioner City of Angeles is ORDERED to undertake and removal of said drug rehabilitation center within a
period of three (3) months from finality of this Decision, and thereafter, to devote public use as a park, playground or
other recreational use.
(3) The Amended Deed of Donation dated November 26, 1984 is hereby declared valid and subsisting, except that
the stipulations or conditions therein concerning the construction of the Sports Center or Complex are hereby
declared void and as if not imposed, and therefore of no force and effect.
No Costs.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
Footnotes
1 Rollo, pp. 42-50.
2 Twelfth Division, J. Bonifacio A. Cacdac, Jr., ponente, and JJ. Reynato S. Puno (chairman) and Salome A.
Montoya, concuring.
3 Rollo, pp. 93-106.
4 Judge Carlos D. Rusita, presiding.
5 Rollo, pp. 54-62.
6 Section 10 of the said Subdivision Ordinance of the Municipality of Angeles reads:
Open Spaces Decided to Public Use-Subdivisions in the Municipality containing an area of at least one (1)
hectare shall be provided with suitable sites known as open spaces for parks, playgrounds, playlots and/or
other areas to be dedicated to public use which areas shall comprise at least five (5) percent of the gross
area of the subdivision. Open spaces so dedicated for public use shall be consolidated as much as possible
and not broken into small odd-shaped parcels of land, and shall be conveniently located for maximum
utility.Should the subdivision so elect, he may turn over and transfer free of charge the title to said open
space to the Municipal Government after which the government shall assume the responsibility of
maintaining the said areas. Provided, that the government reserves the right to reject the transfer of any
area specified in this section if in its opinion the site has not been developed in such manner as to make the
same suitable for the use it in intended. (Emphasis supplied)
7 Court of Appeals Decision, p. 5; rollo, p. 46.
8 Rollo, pp. 20-21.
9 Published in the Official Gazette (Vol. 74, No. 2 January 9, 1978, pp. 257-259).
10 The Court of Appeals said:
. . . The obligation to donate however, does not cover the entire open space but only that 3.5% to 9% of the
open space which is exclusively reserved to parks and playgrounds. . . . (Rollo, p. 48).
11 Art. 727, Civil Code.
12 Palanca vs. City of Manila, 41 Phil. 125, 130, October 27, 1920 and Republic Flour Mills, Inc. vs.
Commissioner of Customs, 39 SCRA 268, 278, 274, May 31, 1971.
13 Vide par. 6 of Amended Deed of Donation.
14 The 51 donated lots ranged in size from 287 to 640 square meters with the average size of a family lot
being 463.5 square meters. The average size or area of a family lot should be at least 500 square meters to
have a density of 20 family lots or below per gross hectare. The subdivision in question obviously falls under
the medium-density or economic housing category.
15 Aragones vs. Subido, 25 SCRA 95, 101, September 23, 1968.
16 Dayrit vs. De Los Santos, 18 Phil. 275, 280, January 11, 1911.
17 Rustia vs. Franco, 41 Phil. 280, 283-285, December 13, 1920.
18 CA Decision, pp. 5-6; rollo, pp. 46-47.
19 Teja vs. Intermediate Appellate Court, 148 SCRA 347, March 10, 1987.
20 See for instance, Vidad vs. RTC of Negros Oriental, Br. 42, 227, 271, October 18, 1993; M.H. Wylie vs
Rarang, 209 SCRA 357, May 28, 1992; Orocio Commission On Audit, 213 SCRA 109, August 31, 1992.
21 RTC Decision, p. 7; records, p. 113.
22 Aside from the cases cited in footnote no. 20, consider also Rama vs. Court of Appeals, 148 SCRA 496
March 16, 1987, and San Luis vs. Court of Appeals, 174 SCRA 258, June 26, 1989.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 74135 May 28, 1992
M. H. WYLIE and CAPT. JAMES WILLIAMS, petitioners,
vs.
AURORA I. RARANG and THE HONORABLE INTERMEDIATE APPELLATE COURT, respondents.
GUTIERREZ, JR., J .:
The pivotal issue in this petition centers on the extent of the "immunity from suit" of the officials of a United States
Naval Base inside Philippine territory.
In February, 1978, petitioner M. H. Wylie was the assistant administrative officer while petitioner Capt. James
Williams was the commanding officer of the U. S. Naval Base in Subic Bay, Olongapo City. Private respondent
Aurora I. Rarang was an employee in the office of the Provost Marshal assigned as merchandise control guard.
M. H. Wylie, in his capacity as assistant administrative officer of the U.S. Naval Station supervised the publication of
the "Plan of the Day" (POD) which was published daily by the US Naval Base station. The POD featured important
announcements, necessary precautions, and general matters of interest to military personnel. One of the regular
features of the POD was the "action line inquiry." On February 3, 1978, the POD published, under the "NAVSTA
ACTION LINE INQUIRY" the following:
Question: I have observed that Merchandise Control inspector/inspectress are (sic) consuming for
their own benefit things they have confiscated from Base Personnel. The observation is even more
aggravated by consuming such confiscated items as cigarettes and food stuffs PUBLICLY. This is
not to mention "Auring" who is in herself, a disgrace to her division and to the Office of the Provost
Marshal. In lieu of this observation, may I therefore, ask if the head of the Merchandise Control
Division is aware of this malpractice?
Answer: Merchandise Control Guards and all other personnel are prohibited from appropriating
confiscated items for their own consumption or use. Two locked containers are installed at the Main
Gate area for deposit of confiscated items and the OPM evidence custodian controls access to these
containers.
Merchandise Control Guards are permitted to eat their meals at their worksite due to heavy
workload. Complaints regarding merchandise control guards procedure or actions may be made
directly at the Office of the Provost Marshal for immediate and necessary action. Specific dates and
time along with details of suspected violations would be most appreciated. Telephone 4-3430/4-3234
for further information or to report noted or suspected irregularities. Exhibits E & E-1. (Rollo, pp. 11-
12)
The private respondent was the only one who was named "Auring" in the Office of the Provost Marshal. That the
private respondent was the same "Auring" referred to in the POD was conclusively proven when on February 7,
1978, petitioner M. H. Wylie wrote her a letter of apology for the "inadvertent" publication. The private respondent
then commenced an action for damages in the Court of First Instance of Zambales (now Regional Trial Court)
against
M. H. Wylie, Capt. James Williams and the U. S. Naval Base. She alleged that the article constituted false, injurious,
and malicious defamation and libel tending to impeach her honesty, virtue and reputation exposing her to public
hatred, contempt and ridicule; and that the libel was published and circulated in the English language and read by
almost all the U. S. Naval Base personnel. She prayed that she be awarded P300,000.00 as moral damages;
exemplary damages which the court may find proper; and P50,000.00 as attorneys fees.
In response to the complaint, the defendants filed a motion to dismiss anchored on three grounds:
1. Defendants M. H. Wylie and Capt. James Williams acted in the performance of their official
functions as officers of the United States Navy and are, therefore, immune from suit;
2. The United States Naval Base is an instrumentality of the US government which cannot be sued
without its consent; and
3. This Court has no jurisdiction over the subject matter as well as the parties in this case. (Record
on Appeal, pp. 133-134)
The motion was, however, denied.
In their answer, the defendants reiterated the lack of jurisdiction of the court over the case.
In its decision, the trial court ruled that the acts of defendants M. H. Wylie and Cpt. James Williams were not official
acts of the government of the United States of America in the operation and control of the Base but personal and
tortious acts which are exceptions to the general rule that a sovereign country cannot be sued in the court of another
country without its consent. In short, the trial court ruled that the acts and omissions of the two US officials were not
imputable against the US government but were done in the individual and personal capacities of the said officials.
The trial court dismissed the suit against the US Naval Base. The dispositive portion of the decision reads as
follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants
jointly and severally, as follows:
1) Ordering defendants M. H. Wylie and Capt. James Williams to pay the plaintiff Aurora Rarang the
sum of one hundred thousand (P100,000.00) pesos by way of moral and exemplary damages;
2) Ordering defendants M. H. Wylie and Capt. James Williams to pay the plaintiff the sum of thirty
thousand (P30,000.00) pesos by way of attorneys fees and expenses of litigation; and
3) To pay the costs of this suit.
Counterclaims are dismissed.
Likewise, the suit against the U.S. Naval Base is ordered dismissed. (Record on Appeal, p. 154)
On appeal, the petitioners reiterated their stance that they are immune from suit since the subject publication was
made in their official capacities as officers of the U. S. Navy. They also maintained that they did not intentionally and
maliciously cause the questioned publication.
The private respondent, not satisfied with the amount of damages awarded to her, also appealed the trial courts
decision.
Acting on these appeals, the Intermediate Appellate Court, now Court of Appeals, modified the trial courts decision,
to wit:
WHEREFORE, the judgment of the court below is modified so that the defendants are ordered to
pay the plaintiff, jointly and severally, the sum of P175,000.00 as moral damages and the sum of
P60,000.00 as exemplary damages. The rest of the judgment appealed from is hereby affirmed in
toto. Costs against the defendants-appellants. (Rollo, p. 44)
The appellate court denied a motion for reconsideration filed by the petitioners.
Hence, this petition.
In a resolution dated March 9, 1987, we gave due course to the petition.
The petitioners persist that they made the questioned publication in the performance of their official functions as
administrative assistant, in the case of M. H. Wylie, and commanding officer, in the case of Capt. James Williams of
the US Navy assigned to the U. S. Naval Station, Subic Bay, Olongapo City and were, therefore, immune from suit
for their official actions.
In the case of United States of America v. Guinto (182 SCRA 644 [1990]), we discussed the principle of the state
immunity from suit as follows:
The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of
the 1987 Constitution, is one of the generally accepted principles of international law that we have
adopted as part of the law of our land under Article II, Section 2.
xxx xxx xxx
Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority
of states, such principles are deemed incorporated in the law of every civilized state as a condition
and consequence of its membership in the society of nations. Upon its admission to such society,
the state is automatically obligated to comply with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given by
Justice Holmes that "there can be no legal right against the authority which makes the law on which
the right depends." (Kawanakoa v. Polybank, 205 U.S. 349) There are other practical reasons for the
enforcement of the doctrine. In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium. All
states are sovereign equals and cannot assert jurisdiction over one another. A contrary disposition
would, in the language of a celebrated case, "unduly vex the peace of nations." (Da Haber v. Queen
of Portugal, 17 Q. B. 171)
While the doctrine appears to prohibit only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state for acts allegedly performed by them in the
discharge of their duties. The rule is that if the judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount
needed to pay the damages awarded against them, the suit must be regarded as against the state
itself although it has not been formally impleaded. (Garcia v. Chief of Staff, 16 SCRA 120) In such a
situation, the state may move to dismiss the complaint on the ground that it has been filed without its
consent.
The doctrine is sometimes derisively called "the royal prerogative of dishonesty" because of the
privilege it grants the state to defeat any legitimate claim against it by simply invoking its non-
suability. That is hardly fair, at least in democratic societies, for the state is not an unfeeling tyrant
unmoved by the valid claims of its citizens. In fact, the doctrine is not absolute and does not say the
state may not be sued under any circumstance. On the contrary, the rule says that the state may not
be sued without its consent, which clearly imports that it may be sued if it consents.
The consent of the state to be sued may be manifested expressly or impliedly. Express consent may
be embodied in a general law or a special law. Consent is implied when the state enters into a
contract it itself commences litigation.
xxx xxx xxx
The above rules are subject to qualification. Express consent is effected only by the will of the
legislature through the medium of a duly enacted statute. (Republic v. Purisima, 78 SCRA 470) We
have held that not all contracts entered into by the government will operate as a waiver of its non-
suability; distinction must be made between its sovereign and proprietary acts. (United States of
America v. Ruiz, 136 SCRA 487) As for the filing of a complaint by the government, suability will
result only where the government is claiming affirmative relief from the defendant. (Lim v. Brownell,
107 Phil. 345) (at pp. 652-655)
In the same case we had opportunity to discuss extensively the nature and extent of immunity from suit of United
States personnel who are assigned and stationed in Philippine territory, to wit:
In the case of the United States of America, the customary rule of international law on state immunity
is expressed with more specificity in the RP-US Bases Treaty. Article III thereof provides as follows:
It is mutually agreed that the United States shall have the rights, power and authority
within the bases which are necessary for the establishment, use, operation and
defense thereof or appropriate for the control thereof and all the rights, power and
authority within the limits of the territorial waters and air space adjacent to, or in the
vicinity of, the bases which are necessary to provide access to them or appropriate
for their control.
The petitioners also rely heavily on Baer v. Tizon, (57 SCRA 1) along with several other decisions, to
support their position that they are not suable in the cases below, the United States not having
waived its sovereign immunity from suit. It is emphasized that in Baer, the Court held:
The invocation of the doctrine of immunity from suit of a foreign state without its
consent is appropriate. More specifically, insofar as alien armed forces is concerned,
the starting point is Raquiza v. Bradford, a 1945 decision. In dismissing a habeas
corpus petition for the release of petitioners confined by American army authorities,
Justice Hilado, speaking for the Court, cited Coleman v. Tennessee, where it was
explicitly declared: "It is well settled that a foreign army, permitted to march through a
friendly country or to be stationed in it, by permission of its government or sovereign,
is exempt from the civil and criminal jurisdiction of the place." Two years later,
in Tubb and Tedrow v. Griess, this Court relied on the ruling in Raquiza
v. Bradford and cited in support thereof excerpts from the works of the following
authoritative writers: Vattel, Wheaton, Hall, Lawrence, Oppenheim, Westlake, Hyde,
and McNair and Lauterpacht. Accuracy demands the clarification that after the
conclusion of the Philippine-American Military Bases Agreement, the treaty
provisions should control on such matter, the assumption being that there was a
manifestation of the submission to jurisdiction on the part of the foreign power
whenever appropriate. More to the point is Syquia v. Almeda Lopez, where plaintiffs
as lessors sued the Commanding General of the United States Army in the
Philippines, seeking the restoration to them of the apartment buildings they owned
leased to the United States armed forces station in the Manila area. A motion to
dismiss on the ground of non-suability was filed and upheld by respondent Judge.
The matter was taken to this Court in a mandamus proceeding. It failed. It was the
ruling that respondent Judge acted correctly considering that the "action must be
considered as one against the U.S. Government." The opinion of Justice
Montemayor continued: "It is clear that the courts of the Philippines including the
Municipal Court of Manila have no jurisdiction over the present case for unlawful
detainer. The question of lack of jurisdiction was raised and interposed at the very
beginning of the action. The U.S. Government has not given its consent to the filing
of this suit which is essentially against her, though not in name. Moreover, this is not
only a case of a citizen filing a suit against his own Government without the latters
consent but it is of a citizen filing an action against a foreign government without said
governments consent, which renders more obvious the lack of jurisdiction of the
courts of his country. The principles of law behind this rule are so elementary and of
such general acceptance that we deem it unnecessary to cite authorities in support
thereof."
xxx xxx xxx
It bears stressing at this point that the above observations do not confer on the United States of
America a blanket immunity for all acts done by it or its agents in the Philippines. Neither may the
other petitioners claim that they are also insulated from suit in this country merely because they have
acted as agents of the United States in the discharge of their official functions.
There is no question that the United States of America, like any other state, will be deemed to have
impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity.
It is only when the contract involves its sovereign or governmental capacity that no such waiver may
be implied. This was our ruling in United States of America v. Ruiz, (136 SCRA 487) where the
transaction in question dealt with the improvement of the wharves in the naval installation at Subic
Bay. As this was a clearly governmental function, we held that the contract did not operate to divest
the United States of its sovereign immunity from suit. In the words of Justice Vicente Abad Santos:
The traditional rule of immunity excepts a State from being sued in the courts of
another State without its consent or waiver. This rule is a necessary consequence of
the principles of independence and equality of States. However, the rules of
International Law are not petrified; they are constantly developing and evolving. And
because the activities of states have multiplied, it has been necessary to distinguish
them between sovereign and governmental acts (jure imperii) and private,
commercial and proprietary acts (jure gestionis). The result is that State immunity
now extends only to acts jure imperii. The restrictive application of State immunity is
now the rule in the United States, the United Kingdom and other states in Western
Europe.
xxx xxx xxx
The restrictive application of State immunity is proper only when the proceedings
arise out of commercial transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a State may be said to have
descended to the level of an individual and can thus be deemed to have tacitly given
its consent to be sued only when it enters into business contracts. It does not apply
where the contract relates to the exercise of its sovereign functions. In this case the
projects are an integral part of the naval base which is devoted to the defense of both
the United States and the Philippines, indisputably a function of the government of
the highest order; they are not utilized for nor dedicated to commercial or business
purposes.
The other petitioners in the cases before us all aver they have acted in the discharge of their official
functions as officers or agents of the United States. However, this is a matter of evidence. The
charges against them may not be summarily dismissed on their mere assertion that their acts are
imputable to the United States of America, which has not given its consent to be sued. In fact, the
defendants are sought to be held answerable for personal torts in which the United States itself is
not involved. If found liable, they and they alone must satisfy the judgment. (At pp. 655-658)
In the light of these precedents, we proceed to resolve the present case.
The POD was published under the direction and authority of the commanding officer, U.S. Naval Station Subic Bay.
The administrative assistant, among his other duties, is tasked to prepare and distribute the POD. On February 3,
1978, when the questioned article was published in the POD, petitioner Capt. James Williams was the commanding
officer while petitioner M.H. Wylie was the administrative assistant of the US Naval Station at Subic bay.
The NAVSTA ACTION LINE INQUIRY is a regular feature of the POD. It is a telephone answering device in the
office of the Administrative Assistant. The Action Line is intended to provide personnel access to the Commanding
Officer on matters they feel should be brought to his attention for correction or investigation. The matter of inquiry
may be phoned in or mailed to the POD. (TSN, September 9, 1980, pp. 12-13, Jerry Poblon) According to
M. H. Wylie, the action line naming "Auring" was received about three (3) weeks prior to its being published in the
POD on February 3, 1978. It was forwarded to Rarangs office of employment, the Provost Marshal, for comment.
The Provost Marshal offices response ". . . included a short note stating that if the article was published, to remove
the name." (Exhibit 8-A, p. 5) The Provost Marshals response was then forwarded to the executive officer and to the
commanding officer for approval. The approval of the Commanding officer was forwarded to the office of the
Administrative Assistant for inclusion in the POD. A certain Mrs. Dologmodin, a clerk typist in the office of the
Administrative Assistant prepared the smooth copy of the POD. Finally, M. H. Wylie, the administrative assistant
signed the smooth copy of the POD but failed to notice the reference to "Auring" in the action line inquiry. (Exh. 8-A,
pp. 4-5, Questions Nos. 14-15).
There is no question, therefore, that the two (2) petitioners actively participated in screening the features and articles
in the POD as part of their official functions. Under the rule that U.S. officials in the performance of their official
functions are immune from suit, then it should follow that the petitioners may not be held liable for the questioned
publication.
It is to be noted, however, that the petitioners were sued in their personal capacities for their alleged tortious acts in
publishing a libelous article.
The question, therefore, arises are American naval officers who commit a crime or tortious act while discharging
official functions still covered by the principle of state immunity from suit? Pursuing the question further, does the
grant of rights, power, and authority to the United States under the RP-US Bases Treaty cover immunity of its
officers from crimes and torts? Our answer is No.
Killing a person in cold blood while on patrol duty, running over a child while driving with reckless imprudence on an
official trip, or slandering a person during office hours could not possibly be covered by the immunity agreement.
Our laws and, we presume, those of the United States do not allow the commission of crimes in the name of official
duty.
The case of Chavez v. Sandiganbayan, 193 SCRA 282 [1991] gives the law on immunity from suit of public officials:
The general rule is that public officials can be held personally accountable for acts claimed to have
been performed in connection with official duties where they have acted ultra vires or where there is
showing of bad faith.
xxx xxx xxx
Moreover, the petitioners argument that the immunity proviso under Section 4(a) of Executive Order
No. 1 also extends to him is not well-taken. A mere invocation of the immunity clause does not ipso
facto result in the charges being automatically dropped.
In the case of Presidential Commission on Good Government v. Pea (159 SCRA 556 [1988] then
Chief Justice Claudio Teehankee, added a clarification of the immunity accorded PCGG officials
under Section 4(a) of Executive Order No. 1 as follows:
With respect to the qualifications expressed by Mr. Justice Feliciano in his separate
opinion, I just wish to point out two things: First, the main opinion does not claim
absolute immunity for the members of the Commission. The cited section of
Executive Order No. 1 provides the Commissions members immunity from suit thus:
"No civil action shall lie against the Commission or any member thereof for anything
done or omitted in the discharge of the task contemplated by this order." No absolute
immunity like that sought by Mr. Marcos in his Constitution for himself and his
subordinates is herein involved. It is understood that the immunity granted the
members of the Commission by virtue of the unimaginable magnitude of its task to
recover the plundered wealth and the States exercise of police power was immunity
from liability for damages in the official discharge of the task granted the members of
the Commission much in the same manner that judges are immune from suit in the
official discharge of the functions of their office.
. . . (at pp. 581-582)
xxx xxx xxx
Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a
privileged status not claimed by any other official of the Republic. (id., at page 586)
Where the petitioner exceeds his authority as Solicitor General, acts in bad faith, or, as contended
by the private respondent, "maliciously conspir(es) with the PCGG commissioners in persecuting
respondent Enrile by filing against him an evidently baseless suit in derogation of the latters
constitutional rights and liberties" (Rollo, p. 417), there can be no question that a complaint for
damages does not confer a license to persecute or recklessly injure another. The actions governed
by Articles 19, 20, 21, and 32 of the Civil Code on Human Relations may be taken against public
officers or private citizens alike. . . . (pp. 289-291)
We apply the same ruling to this case.
The subject article in the US Newsletter POD dated February 3, 1978 mentions a certain "Auring" as ". . a disgrace
to her division and to the Office of the Provost Marshal." The same article explicitly implies that Auring was
consuming and appropriating for herself confiscated items like cigarettes and foodstuffs. There is no question that
the Auring alluded to in the Article was the private respondent as she was the only Auring in the Office of the
Provost Marshal. Moreover, as a result of this article, the private respondent was investigated by her supervisor.
Before the article came out, the private respondent had been the recipient of commendations by her superiors for
honesty in the performance of her duties.
It may be argued that Captain James Williams as commanding officer of the naval base is far removed in the chain
of command from the offensive publication and it would be asking too much to hold him responsible for everything
which goes wrong on the base. This may be true as a general rule. In this particular case, however, the records
show that the offensive publication was sent to the commanding officer for approval and he approved it. The factual
findings of the two courts below are based on the records. The petitioners have shown no convincing reasons why
our usual respect for the findings of the trial court and the respondent court should be withheld in this particular case
and why their decisions should be reversed.
Article 2176 of the Civil Code prescribes a civil liability for damages caused by a persons act or omission
constituting fault or negligence, to wit:
Art. 2176. Whoever by act or omission, causes damage to another, there being fault or negligence is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
"Fault" or "negligence" in this Article covers not only acts "not punishable by law" but also acts criminal in character,
whether intentional or voluntary or negligent." (Andamo v. Intermediate Appellate Court, 191 SCRA 195 [1990]).
Moreover, Article 2219(7) of the Civil Code provides that moral damages may be recovered in case of libel, slander
or any other form of defamation. In effect, the offended party in these cases is given the right to receive from the
guilty party moral damages for injury to his feelings and reputation in addition to punitive or exemplary damages.
(Occena v. Icamina, 181 SCRA 328 [1990]). In another case, Heirs of Basilisa Justiva v. Gustilo, 7 SCRA 72 [1963],
we ruled that the allegation of forgery of documents could be a defamation, which in the light of Article 2219(7) of
the Civil Code could by analogy be ground for payment of moral damages, considering the wounded feelings and
besmirched reputation of the defendants.
Indeed the imputation of theft contained in the POD dated February 3, 1978 is a defamation against the character
and reputation of the private respondent. Petitioner Wylie himself admitted that the Office of the Provost Marshal
explicitly recommended the deletion of the name Auring if the article were published. The petitioners, however, were
negligent because under their direction they issued the publication without deleting the name "Auring." Such act or
omission is ultra vires and cannot be part of official duty. It was a tortious act which ridiculed the private respondent.
As a result of the petitioners act, the private respondent, according to the record, suffered besmirched reputation,
serious anxiety, wounded feelings and social humiliation, specially so, since the article was baseless and false. The
petitioners, alone, in their personal capacities are liable for the damages they caused the private respondent.
WHEREFORE, the petition is hereby DISMISSED. The questioned decision and resolution of the then Intermediate
Appellate Court, now Court of Appeals, are AFFIRMED.
Bidin, Davide, Jr. and Romero, JJ., concur.
Feliciano, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J .:
The annals of juridical history fail to reveal a case quite as remarkable as the one which this application forhabeas
corpus submits for decision. While hardly to be expected to be met with in this modern epoch of triumphant
democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of our minds the basic
principles of popular government, and if we give expression to the paramount purpose for which the courts, as an
independent power of such a government, were constituted. The primary question is Shall the judiciary permit a
government of the men instead of a government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading for
other departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for the
best of all reasons, to exterminate vice, ordered the segregated district for women of ill repute, which had been
permitted for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918, the women
were kept confined to their houses in the district by the police. Presumably, during this period, the city authorities
quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers;
with some government office for the use of the coastguard cutters Corregidor and Negros, and with the
Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to orders
from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the
houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers that awaited their
arrival. The women were given no opportunity to collect their belongings, and apparently were under the impression
that they were being taken to a police station for an investigation. They had no knowledge that they were destined
for a life in Mindanao. They had not been asked if they wished to depart from that region and had neither directly nor
indirectly given their consent to the deportation. The involuntary guests were received on board the steamers by a
representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers with their
unwilling passengers sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were landed and receipted for as
laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yigo and Rafael Castillo. The
governor and the hacendero Yigo, who appear as parties in the case, had no previous notification that the women
were prostitutes who had been expelled from the city of Manila. The further happenings to these women and the
serious charges growing out of alleged ill-treatment are of public interest, but are not essential to the disposition of
this case. Suffice it to say, generally, that some of the women married, others assumed more or less clandestine
relations with men, others went to work in different capacities, others assumed a life unknown and disappeared, and
a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the
attorney for the relatives and friends of a considerable number of the deportees presented an application forhabeas
corpus to a member of the Supreme Court. Subsequently, the application, through stipulation of the parties, was
made to include all of the women who were sent away from Manila to Davao and, as the same questions concerned
them all, the application will be considered as including them. The application set forth the salient facts, which need
not be repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ was
made returnable before the full court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted
certain facts relative to sequestration and deportation, and prayed that the writ should not be granted because the
petitioners were not proper parties, because the action should have been begun in the Court of First Instance for
Davao, Department of Mindanao and Sulu, because the respondents did not have any of the women under their
custody or control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be laborers, at good
salaries, on the haciendas of Yigo and Governor Sales. In open court, the fiscal admitted, in answer to question of
a member of the court, that these women had been sent out of Manila without their consent. The court awarded the
writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yigo,
an hacendero of Davao, to bring before the court the persons therein named, alleged to be deprived of their liberty,
on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of counsel
for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as commissioners. On the
day named in the order, December 2nd, 1918, none of the persons in whose behalf the writ was issued were
produced in court by the respondents. It has been shown that three of those who had been able to come back to
Manila through their own efforts, were notified by the police and the secret service to appear before the court. The
fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the
original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the
answer thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau then
in Davao, and offered certain affidavits showing that the women were contained with their life in Mindanao and did
not wish to return to Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the
Supreme Court because the women had never been under his control, because they were at liberty in the Province
of Davao, and because they had married or signed contracts as laborers. Respondent Yigo answered alleging that
he did not have any of the women under his control and that therefore it was impossible for him to obey the
mandate. The court, after due deliberation, on December 10, 1918, promulgated a second order, which related that
the respondents had not complied with the original order to the satisfaction of the court nor explained their failure to
do so, and therefore directed that those of the women not in Manila be brought before the court by respondents
Lukban, Hohmann, Sales, and Yigo on January 13, 1919, unless the women should, in written statements
voluntarily made before the judge of first instance of Davao or the clerk of that court, renounce the right, or unless
the respondents should demonstrate some other legal motives that made compliance impossible. It was further
stated that the question of whether the respondents were in contempt of court would later be decided and the
reasons for the order announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and
policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13,
1919, the respondents technically presented before the Court the women who had returned to the city through their
own efforts and eight others who had been brought to Manila by the respondents. Attorneys for the respondents, by
their returns, once again recounted the facts and further endeavored to account for all of the persons involved in
the habeas corpus. In substance, it was stated that the respondents, through their representatives and agents, had
succeeded in bringing from Davao with their consent eight women; that eighty-one women were found in Davao
who, on notice that if they desired they could return to Manila, transportation fee, renounced the right through sworn
statements; that fifty-nine had already returned to Manila by other means, and that despite all efforts to find them
twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit memoranda.
The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police
of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz,
fiscal of the city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de los
recurridos, (reply to respondents memorandum) dated January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final
decision. We will now proceed to do so.
One fact, and one fact only, need be recalled these one hundred and seventy women were isolated from society,
and then at night, without their consent and without any opportunity to consult with friends or to defend their rights,
were forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble attempt to prove
that the women left voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of
the police and the constabulary was deemed necessary and that these officers of the law chose the shades of night
to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted by the
respondents.
With this situation, a court would next expect to resolve the question By authority of what law did the Mayor and
the Chief of Police presume to act in deporting by duress these persons from Manila to another distant locality within
the Philippine Islands? We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The Governor-
General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of the Philippine
Commission and section 733 of the Revised Ordinances of the city of Manila provide for the conviction and
punishment by a court of justice of any person who is a common prostitute. Act No. 899 authorizes the return of any
citizen of the United States, who may have been convicted of vagrancy, to the homeland. New York and other
States have statutes providing for the commitment to the House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a quarantine, or place a
leprous person in the Culion leper colony, it is done pursuant to some law or order. But one can search in vain for
any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of
that city to force citizens of the Philippine Islands and these women despite their being in a sense lepers of
society are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are
other citizens to change their domicile from Manila to another locality. On the contrary, Philippine penal law
specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any
person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the Bill
of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so deeply
imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction.
Even the Governor-General of the Philippine Islands, even the President of the United States, who has often been
said to exercise more power than any king or potentate, has no such arbitrary prerogative, either inherent or
express. Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If
the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render
the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of
the Philippines have the same privilege. If these officials can take to themselves such power, then any other official
can do the same. And if any official can exercise the power, then all persons would have just as much right to do so.
And if a prostitute could be sent against her wishes and under no law from one locality to another within the country,
then officialdom can hold the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be taken, or imprisoned, or be
disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will
we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no
man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng.
stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the forum which functionate to
safeguard individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion
of the Supreme Court of the United States, "is the only supreme power in our system of government, and every man
who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and
to observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882],
106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another case, "that one man
may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at
the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of
slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ
of habeas corpus, and makes clear why we said in the very beginning that the primary question was whether the
courts should permit a government of men or a government of laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil
action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may
still rest with the parties in interest to pursue such an action, but it was never intended effectively and promptly to
meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
Any public officer not thereunto authorized by law or by regulations of a general character in force in the
Philippines who shall banish any person to a place more than two hundred kilometers distant from his
domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than three
hundred and twenty-five and not more than three thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of a general character in force
in the Philippines who shall compel any person to change his domicile or residence shall suffer the penalty
of destierro and a fine of not less than six hundred and twenty-five and not more than six thousand two
hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public officer
has violated this provision of law, these prosecutors will institute and press a criminal prosecution just as vigorously
as they have defended the same official in this action. Nevertheless, that the act may be a crime and that the
persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the words of Judge
Cooley in a case which will later be referred to "It would be a monstrous anomaly in the law if to an application by
one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement was a
crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow
process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was
devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and
only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the
writ, whose principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance
in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court
should not a assume jurisdiction, and (3) that the person in question are not restrained of their liberty by
respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila
only extends to the city limits and that perforce they could not bring the women from Davao.
The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the
deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a
petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf. (Code
of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal
liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the
courts jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made
therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should
have been made returnable before that court. It is a general rule of good practice that, to avoid unnecessary
expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the court of
first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court
or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of
Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior
court rests in the discretion of the Supreme Court and is dependent on the particular circumstances. In this instance
it was not shown that the Court of First Instance of Davao was in session, or that the women had any means by
which to advance their plea before that court. On the other hand, it was shown that the petitioners with their
attorneys, and the two original respondents with their attorney, were in Manila; it was shown that the case involved
parties situated in different parts of the Islands; it was shown that the women might still be imprisoned or restrained
of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken cognizance of and
decided immediately by the appellate court. The failure of the superior court to consider the application and then to
grant the writ would have amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says
counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in
Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first blush,
this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of the first
principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of
action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to
other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as
effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were
prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly
waived his right.
Consider for a moment what an agreement with such a defense would mean. The chief executive of any
municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries
of the municipality, and then, when called upon to defend his official action, could calmly fold his hands and claim
that the person was under no restraint and that he, the official, had no jurisdiction over this other municipality. We
believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power
to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so.
Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the
application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under
no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily
have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not
be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with
impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great writ
of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange
as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain decisions of
respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ
ofhabeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into the
State a minor child under guardianship in the State, who has been and continues to be detained in another State.
The membership of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief justice,
and Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally divided.
Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue.
Since the opinion of Justice Campbell was predicated to a large extent on his conception of the English decisions,
and since, as will hereafter appear, the English courts have taken a contrary view, only the following eloquent
passages from the opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition
which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been
expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many
confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was such a
fellow that he will have no sovereign," and after the extension of its benefits and securities by the petition of
right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that great clause for
the protection of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed
here. If it is so, it is important that it be determined without delay, that the legislature may apply the proper
remedy, as I can not doubt they would, on the subject being brought to their notice. . . .
The second proposition that the statutory provisions are confined to the case of imprisonment within the
state seems to me to be based upon a misconception as to the source of our jurisdiction. It was never the
case in England that the court of kings bench derived its jurisdiction to issue and enforce this writ from the
statute. Statutes were not passed to give the right, but to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to
and served upon, not the person confined, but his jailor. It does not reach the former except through the
latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the
court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent
upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion
are fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted
to, they are only auxiliary to those which are usual. The place of confinement is, therefore, not important to
the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled
to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the
limits of the state, except as greater distance may affect it. The important question is, where the power of
control exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881],
57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by
the respondent. A writ of habeas corpus was issued by the Queens Bench Division upon the application of the
mother and her husband directing the defendant to produce the child. The judge at chambers gave defendant until a
certain date to produce the child, but he did not do so. His return stated that the child before the issuance of the writ
had been handed over by him to another; that it was no longer in his custody or control, and that it was impossible
for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the
defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice
immediately after the receipt of the writ, together with the cause of her being taken and detained. That is a
command to bring the child before the judge and must be obeyed, unless some lawful reason can be shown
to excuse the nonproduction of the child. If it could be shown that by reason of his having lawfully parted
with the possession of the child before the issuing of the writ, the defendant had no longer power to produce
the child, that might be an answer; but in the absence of any lawful reason he is bound to produce the child,
and, if he does not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many
efforts have been made in argument to shift the question of contempt to some anterior period for the
purpose of showing that what was done at some time prior to the writ cannot be a contempt. But the
question is not as to what was done before the issue of the writ. The question is whether there has been a
contempt in disobeying the writ it was issued by not producing the child in obedience to its commands. (The
Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews,
12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossages Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to
have before the circuit court of the District of Columbia three colored persons, with the cause of their detention.
Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the city of
Washington; that, as he believed, they were removed beyond the District of Columbia before the service of the writ
of habeas corpus, and that they were then beyond his control and out of his custody. The evidence tended to show
that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus. The court
held the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being
present in court, and refusing to produce them, ordered that he be committed to the custody of the marshall until he
should produce the negroes, or be otherwise discharged in due course of law. The court afterwards ordered that
Davis be released upon the production of two of the negroes, for one of the negroes had run away and been lodged
in jail in Maryland. Davis produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5
Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd
ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered by the respondents constituted
a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied with the two orders of the Supreme Court
awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be punished or
be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yigo to
present the persons named in the writ before the court on December 2, 1918. The order was dated November 4,
1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the
record discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the attorney for the Bureau of Labor to the telegram of
his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do
so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question
being brought before the court on the day named.
For the respondents to have fulfilled the courts order, three optional courses were open: (1) They could have
produced the bodies of the persons according to the command of the writ; or (2) they could have shown by affidavit
that on account of sickness or infirmity those persons could not safely be brought before the court; or (3) they could
have presented affidavits to show that the parties in question or their attorney waived the right to be present. (Code
of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ was
granted; they did not show impossibility of performance; and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits purporting to show that the women were contended
with their life in Davao, some of which have since been repudiated by the signers, were appended to the return.
That through ordinary diligence a considerable number of the women, at least sixty, could have been brought back
to Manila is demonstrated to be found in the municipality of Davao, and that about this number either returned at
their own expense or were produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been warranted summarily in finding the
respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the
non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat similar
facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossages
case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that, having brought
about that state of things by his own illegal act, he must take the consequences; and we said that he was bound to
use every effort to get the child back; that he must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and do everything that mortal man could do in
the matter; and that the court would only accept clear proof of an absolute impossibility by way of excuse." In other
words, the return did not show that every possible effort to produce the women was made by the respondents. That
the court forebore at this time to take drastic action was because it did not wish to see presented to the public gaze
the spectacle of a clash between executive officials and the judiciary, and because it desired to give the
respondents another chance to demonstrate their good faith and to mitigate their wrong.
In response to the second order of the court, the respondents appear to have become more zealous and to have
shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the
municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided.
While charges and counter-charges in such a bitterly contested case are to be expected, and while a critical reading
of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a
substantial compliance with it. Our finding to this effect may be influenced somewhat by our sincere desire to see
this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive
investigation. If any particular individual is still restrained of her liberty, it can be made the object of separatehabeas
corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this
connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police
force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yigo, an hacenderoof
Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative and not on the vindictive
principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which
the administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain person
and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order him either imprisoned or fined. An officers failure to produce
the body of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt committed
in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say that
any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by acting in
opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their
chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is nevertheless a powerful
mitigating circumstance. The hacendero Yigo appears to have been drawn into the case through a misconstruction
by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to
fulfill his duty as the legal representative of the city government. Finding him innocent of any disrespect to the court,
his counter-motion to strike from the record the memorandum of attorney for the petitioners, which brings him into
this undesirable position, must be granted. When all is said and done, as far as this record discloses, the official who
was primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who made
arrangements for the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and
who later, as the head of the city government, had it within his power to facilitate the return of the unfortunate
women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was
commendable. His methods were unlawful. His regard for the writ ofhabeas corpus issued by the court was only
tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the
penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to deal with him
as for a contempt. Some members of the court are inclined to this stern view. It would also be possible to find that
since respondent Lukban did comply substantially with the second order of the court, he has purged his contempt of
the first order. Some members of the court are inclined to this merciful view. Between the two extremes appears to
lie the correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to belittle and
embarrass the administration of justice to such an extent that his later activity may be considered only as
extenuating his conduct. A nominal fine will at once command such respect without being unduly oppressive such
an amount is P100.
In resume as before stated, no further action on the writ of habeas corpus is necessary. The respondents
Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt of court. Respondent
Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five days
the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the record
theReplica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against
respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision
may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal
encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
Separate Opinions
TORRES, J ., dissenting:
The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpusproceeding against Justo Lukban, the mayor of this city.
There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great number of
women of various ages, inmates of the houses of prostitution situated in Gardenia Street, district of Sampaloc, to
change their residence.
We know no express law, regulation, or ordinance which clearly prohibits the opening of public houses of
prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more than one hundred and fifty
women were assembled and placed aboard a steamer and transported to Davao, considering that the existence of
the said houses of prostitution has been tolerated for so long a time, it is undeniable that the mayor of the city, in
proceeding in the manner shown, acted without authority of any legal provision which constitutes an exception to the
laws guaranteeing the liberty and the individual rights of the residents of the city of Manila.
We do not believe in the pomp and obstentation of force displayed by the police in complying with the order of the
mayor of the city; neither do we believe in the necessity of taking them to the distant district of Davao. The said
governmental authority, in carrying out his intention to suppress the segregated district or the community formed by
those women in Gardenia Street, could have obliged the said women to return to their former residences in this city
or in the provinces, without the necessity of transporting them to Mindanao; hence the said official is obliged to bring
back the women who are still in Davao so that they may return to the places in which they lived prior to their
becoming inmates of certain houses in Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this court, we do not find any apparent
disobedience and marked absence of respect in the steps taken by the mayor of the city and his subordinates, if we
take into account the difficulties encountered in bringing the said women who were free at Davao and presenting
them before this court within the time fixed, inasmuch as it does not appear that the said women were living together
in a given place. It was not because they were really detained, but because on the first days there were no houses
in which they could live with a relative independent from one another, and as a proof that they were free a number of
them returned to Manila and the others succeeded in living separate from their companions who continued living
together.
To determine whether or not the mayor acted with a good purpose and legal object and whether he has acted in
good or bad faith in proceeding to dissolve the said community of prostitutes and to oblige them to change their
domicile, it is necessary to consider not only the rights and interests of the said women and especially of the patrons
who have been directing and conducting such a reproachable enterprise and shameful business in one of the
suburbs of this city, but also the rights and interests of the very numerous people of Manila where relatively a few
transients accidentally and for some days reside, the inhabitants thereof being more than three hundred thousand
(300,000) who can not, with indifference and without repugnance, live in the same place with so many unfortunate
women dedicated to prostitution.
If the material and moral interests of the community as well as the demands of social morality are to be taken into
account, it is not possible to sustain that it is legal and permissible to establish a house of pandering or prostitution
in the midst of an enlightened population, for, although there were no positive laws prohibiting the existence of such
houses within a district of Manila, the dictates of common sense and dictates of conscience of its inhabitants are
sufficient to warrant the public administration, acting correctly, in exercising the inevitable duty of ordering the
closing and abandonment of a house of prostitution ostensibly open to the public, and of obliging the inmates
thereof to leave it, although such a house is inhabited by its true owner who invokes in his behalf the protection of
the constitutional law guaranteeing his liberty, his individual rights, and his right to property.
A cholera patient, a leper, or any other person affected by a known contagious disease cannot invoke in his favor
the constitutional law which guarantees his liberty and individual rights, should the administrative authority order his
hospitalization, reclusion, or concentration in a certain island or distant point in order to free from contagious the
great majority of the inhabitants of the country who fortunately do not have such diseases. The same reasons exist
or stand good with respect to the unfortunate women dedicated to prostitution, and such reasons become stronger
because the first persons named have contracted their diseases without their knowledge and even against their will,
whereas the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously accepted all its
consequences, knowing positively that their constant intercourse with men of all classes, notwithstanding the
cleanliness and precaution which they are wont to adopt, gives way to the spread or multiplication of the disease
known as syphilis, a venereal disease, which, although it constitutes a secret disease among men and women, is
still prejudicial to the human species in the same degree, scope, and seriousness as cholera, tuberculosis, leprosy,
pest, typhoid, and other contagious diseases which produce great mortality and very serious prejudice to poor
humanity.
If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give her sufficient
remuneration for her subsistence, prefers to put herself under the will of another woman who is usually older than
she is and who is the manager or owner of a house of prostitution, or spontaneously dedicates herself to this
shameful profession, it is undeniable that she voluntarily and with her own knowledge renounces her liberty and
individual rights guaranteed by the Constitution, because it is evident that she can not join the society of decent
women nor can she expect to get the same respect that is due to the latter, nor is it possible for her to live within the
community or society with the same liberty and rights enjoyed by every citizen. Considering her dishonorable
conduct and life, she should therefore be comprised within that class which is always subject to the police and
sanitary regulations conducive to the maintenance of public decency and morality and to the conservation of public
health, and for this reason it should not permitted that the unfortunate women dedicated to prostitution evade the
just orders and resolutions adopted by the administrative authorities.
It is regrettable that unnecessary rigor was employed against the said poor women, but those who have been
worrying so much about the prejudice resulting from a governmental measure, which being a very drastic remedy
may be considered arbitrary, have failed to consider with due reflection the interests of the inhabitants of this city in
general and particularly the duties and responsibilities weighing upon the authorities which administer and govern it;
they have forgotten that many of those who criticize and censure the mayor are fathers of families and are in duty
bound to take care of their children.
For the foregoing reasons, we reach the conclusion that when the petitioners, because of the abnormal life they
assumed, were obliged to change their residence not by a private citizen but by the mayor of the city who is directly
responsible for the conservation of public health and social morality, the latter could take the step he had taken,
availing himself of the services of the police in good faith and only with the purpose of protecting the immense
majority of the population from the social evils and diseases which the houses of prostitution situated in Gardenia
Street have been producing, which houses have been constituting for years a true center for the propagation of
general diseases and other evils derived therefrom. Hence, in ordering the dissolution and abandonment of the said
houses of prostitution and the change of the domicile of the inmates thereof, the mayor did not in bad faith violate
the constitutional laws which guarantees the liberty and the individual rights of every Filipino, inasmuch as the
women petitioners do not absolutely enjoy the said liberty and rights, the exercise of which they have voluntarily
renounced in exchange for the free practice of their shameful profession.
In very highly advanced and civilized countries, there have been adopted by the administrative authorities similar
measures, more or less rigorous, respecting prostitutes, considering them prejudicial to the people, although it is
true that in the execution of such measures more humane and less drastic procedures, fortiter in re et suaviter in
forma, have been adopted, but such procedures have always had in view the ultimate object of the Government for
the sake of the community, that is, putting an end to the living together in a certain place of women dedicated to
prostitution and changing their domicile, with the problematical hope that they adopt another manner of living which
is better and more useful to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is obliged to take
back and restore the said women who are at present found in Davao, and who desire to return to their former
respective residences, not in Gardenia Street, Sampaloc District, with the exception of the prostitutes who should
expressly make known to the clerk of court their preference to reside in Davao, which manifestation must be made
under oath. This resolution must be transmitted to the mayor within the shortest time possible for its due
compliance. The costs shall be charged de officio.
ARAULLO, J ., dissenting in part:
I regret to dissent from the respectable opinion of the majority in the decision rendered in these proceedings, with
respect to the finding as to the importance of the contempt committed, according to the same decision, by Justo
Lukban, Mayor of the city of Manila, and the consequent imposition upon him of a nominal fine of P100.
In the said decision, it is said:
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano
Yigo to present the persons named in the writ before the court on December 2, 1918. The order was dated
November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the
writ. As far as the record disclosed, the mayor of the city of Manila waited until the 21st of November before
sending a telegram to the provincial governor of Davao. According to the response of the Attorney for the
Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to
Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted
effort naturally resulted in none of the parties in question being brought before the court on the day named.
In accordance with section 87 of General Orders No. 58, as said in the same decision, the respondents, for the
purpose of complying with the order of the court, could have, (1) produced the bodies of the persons according to
the command of the writ; (2) shown by affidavits that on account of sickness or infirmity the said women could not
safely be brought before this court; and (3) presented affidavits to show that the parties in question or their lawyers
waived their right to be present. According to the same decision, the said respondents ". . . did not produce the
bodies of the persons in whose behalf the writ was granted; did not show impossibility of performance; and did not
present writings, that waived the right to be present by those interested. Instead, a few stereotyped affidavits
purporting to show that the women were contented with their life in Davao, some of which have since been
repudiated by the signers, were appended to the return. That through ordinary diligence a considerable number of
the women, at least sixty, could have been brought back to Manila is demonstrated by the fact that during this time
they were easily to be found in the municipality of Davao, and that about this number either returned at their own
expense or were produced at the second hearing by the respondents."
The majority opinion also recognized that, "That court, at the time the return to its first order was made, would have
been warranted summarily in finding the respondent guilty of contempt of court, and in sending them to jail until they
obeyed the order. Their excuses for the non production of the persons were far from sufficient." To corroborate this,
the majority decision cites the case of the Queen vs. Barnardo, Gossages Case ([1890], 24 Q. B. D., 283) and
added "that the return did not show that every possible effort to produce the women was made by the respondents."
When the said return by the respondents was made to this court in banc and the case discussed, my opinion was
that Mayor Lukban should have been immediately punished for contempt. Nevertheless, a second order referred to
in the decision was issued on December 10, 1918, requiring the respondents to produce before the court, on
January 13, 1919, the women who were not in Manila, unless they could show that it was impossible to comply with
the said order on the two grounds previously mentioned. With respect to this second order, the same decision has
the following to say:
In response to the second order of the court, the respondents appear to have become more zealous and to
have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary
and the municipal police joined in rounding up the women, and a steamer with free transportation to Manila
was provided. While charges and countercharges in such a bitterly contested case are to be expected, and
while a critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to
conclude that there is a substantial compliance with it.
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the issuance of the
first order on November 4th till the 21st of the same month before taking the first step for compliance with the
mandate of the said order; he waited till the 21st of November, as the decision says, before he sent a telegram to
the provincial governor o f Davao and naturally this half-hearted effort, as is so qualified in the decision, resulted in
that none of the women appeared before this court on December 2nd. Thus, the said order was not complied with,
and in addition to this noncompliance there was the circumstances that seven of the said women having returned to
Manila at their own expense before the said second day of December and being in the antechamber of the court
room, which fact was known to Chief of Police Hohmann, who was then present at the trial and to the attorney for
the respondents, were not produced before the court by the respondents nor did the latter show any effort to present
them, in spite of the fact that their attention was called to this particular by the undersigned.
The result of the said second order was, as is said in the same decision, that the respondents, on January 13th, the
day fixed for the protection of the women before this court, presented technically the seven (7) women above-
mentioned who had returned to the city at their own expense and the other eight (8) women whom the respondents
themselves brought to Manila, alleging moreover that their agents and subordinates succeeded in bringing them
from Davao with their consent; that in Davao they found eighty-one (81) women who, when asked if they desired to
return to Manila with free transportation, renounced such a right, as is shown in the affidavits presented by the
respondents to this effect; that, through other means, fifty-nine (59) women have already returned to Manila, but
notwithstanding the efforts made to find them it was not possible to locate the whereabouts of twenty-six (26) of
them. Thus, in short, out of the one hundred and eighty-one (181) women who, as has been previously said, have
been illegally detained by Mayor Lukban and Chief of Police Hohmann and transported to Davao against their will,
only eight (8) have been brought to Manila and presented before this court by the respondents in compliance with
the said two orders. Fifty-nine (59) of them have returned to Manila through other means not furnished by the
respondents, twenty-six of whom were brought by the attorney for the petitioners, Mendoza, on his return from
Davao. The said attorney paid out of his own pocket the transportation of the said twenty-six women. Adding to
these numbers the other seven (7) women who returned to this city at their own expense before January 13 we
have a total of sixty-six (66), which evidently proves, on the one hand, the falsity of the allegation by the
respondents in their first answer at the trial of December 2, 1918, giving as one of the reasons for their inability to
present any of the said women that the latter were content with their life in Mindanao and did not desire to return to
Manila; and, on the other hand, that the respondents, especially the first named, that is Mayor Justo Lukban, who
acted as chief and principal in all that refers to the compliance with the orders issued by this court, could bring
before December 2nd, the date of the first hearing of the case, as well as before January 13th, the date fixed for the
compliance with the second order, if not the seventy-four (74) women already indicated, at least a great number of
them, or at least sixty (60) of them, as is said in the majority decision, inasmuch as the said respondent could count
upon the aid of the Constabulary forces and the municipal police, and had transportation facilities for the purpose.
But the said respondent mayor brought only eight (8) of the women before this court on January 13th. This fact can
not, in my judgment, with due respect to the majority opinion, justify the conclusion that the said respondent has
substantially complied with the second order of this court, but on the other hand demonstrates that he had not
complied with the mandate of this court in its first and second orders; that neither of the said orders has been
complied with by the respondent Justo Lukban, Mayor of the city of Manila, who is, according to the majority
decision, principally responsible for the contempt, to which conclusion I agree. The conduct of the said respondent
with respect to the second order confirms the contempt committed by non-compliance with the first order and
constitutes a new contempt because of non-compliance with the second, because of the production of only eight (8)
of the one hundred and eighty-one (181) women who have been illegally detained by virtue of his order and
transported to Davao against their will, committing the twenty-six (26) women who could not be found in Davao,
demonstrates in my opinion that, notwithstanding the nature of the case which deals with the remedy of habeas
corpus, presented by the petitioners and involving the question whether they should or not be granted their liberty,
the respondent has not given due attention to the same nor has he made any effort to comply with the second order.
In other words, he has disobeyed the said two orders; has despised the authority of this court; has failed to give the
respect due to justice; and lastly, he has created and placed obstacles to the administration of justice in the
said habeas corpus proceeding, thus preventing, because of his notorious disobedience, the resolution of the said
proceeding with the promptness which the nature of the same required.
Contempt of court has been defined as a despising of the authority, justice, or dignity of the court; and he is
guilty of contempt whose conduct is such as tends to bring the authority and administration of the law into
disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)
It is a general principle that a disobedience of any valid order of the court constitutes contempt, unless the
defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p. 502.)
It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or attempt to obstruct
the service of legal process. If a person hinders or prevents the service of process by deceiving the officer or
circumventing him by any means, the result is the same as though he had obstructed by some direct means.
(Ruling Case Law, vol. 6, p. 503.)
While it may seem somewhat incongruous to speak, as the courts often do, of enforcing respect for the law
and for the means it has provided in civilized communities for establishing justice, since true respect never
comes in that way, it is apparent nevertheless that the power to enforce decorum in the courts and
obedience to their orders and just measures is so essentially a part of the life of the courts that it would be
difficult to conceive of their usefulness or efficiency as existing without it. Therefore it may be said generally
that where due respect for the courts as ministers of the law is wanting, a necessity arises for the use of
compulsion, not, however, so much to excite individual respect as to compel obedience or to remove an
unlawful or unwarranted interference with the administration of justice. (Ruling Case Law, vol. 6, p. 487.)
The power to punish for contempt is as old as the law itself, and has been exercised from the earliest times.
In England it has been exerted when the contempt consisted of scandalizing the sovereign or his ministers,
the law-making power, or the courts. In the American states the power to punish for contempt, so far as the
executive department and the ministers of state are concerned, and in some degree so far as the legislative
department is concerned, is obsolete, but it has been almost universally preserved so far as regards the
judicial department. The power which the courts have of vindicating their own authority is a necessary
incident to every court of justice, whether of record or not; and the authority for issuing attachments in a
proper case for contempts out of court, it has been declared, stands upon the same immemorial usage as
supports the whole fabric of the common law. . . . (Ruling Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been disobeyed; the loss of the prestige of the
authority of the court which issued the said orders, which loss might have been caused by noncompliance with the
same orders on the part of the respondent Justo Lukban; the damages which might have been suffered by some of
the women illegally detained, in view of the fact that they were not brought to Manila by the respondents to be
presented before the court and of the further fact that some of them were obliged to come to this city at their own
expense while still others were brought to Manila by the attorney for the petitioners, who paid out of his own pocket
the transportation of the said women; and the delay which was necessarily incurred in the resolution of the petition
interposed by the said petitioners and which was due to the fact that the said orders were not opportunately and
duly obeyed and complied with, are circumstances which should be taken into account in imposing upon the
respondent Justo Lukban the penalty corresponding to the contempt committed by him, a penalty which, according
to section 236 of the Code of Civil Procedure, should consist of a fine not exceeding P1,000 or imprisonment not
exceeding months, or both such fine and imprisonment. In the imposition of the penalty, there should also be taken
into consideration the special circumstance that the contempt was committed by a public authority, the mayor of the
city of Manila, the first executive authority of the city, and consequently, the person obliged to be the first in giving an
example of obedience and respect for the laws and the valid and just orders of the duly constituted authorities as
well as for the orders emanating from the courts of justice, and in giving help and aid to the said courts in order that
justice may be administered with promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed upon the
respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be charged against him.
Lastly, I believe it to be my duty to state here that the records of this proceeding should be transmitted to the
Attorney-General in order that, after a study of the same and deduction from the testimony which he may deem
necessary, and the proper transmittal of the same to the fiscal of the city of Manila and to the provincial fiscal of
Davao, both the latter shall present the corresponding informations for the prosecution and punishment of the
crimes which have been committed on the occasion when the illegal detention of the women was carried into effect
by Mayor Justo Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of those crimes
committed by reason of the same detention and while the women were in Davao. This will be one of the means
whereby the just hope expressed in the majority decision will be realized, that is, that in the Philippine Islands there
should exist a government of laws and not a government of men and that this decision may serve to bulwark the
fortifications of an orderly Government of laws and to protect individual liberty from illegal encroachments.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 169838 April 25, 2006
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato
Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the
Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and
Western Police District Chief Gen. PEDRO BULAONG, Respondents.
x---------------------------------x
G.R. No. 169848 April 25, 2006
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul
Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael
Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita
Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De
los Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity,
ANGELO REYES, in his official capacity as Secretary of the Interior and Local Governments, ARTURO
LOMIBAO, in his official capacity as the Chief, Philippine National Police, VIDAL QUEROL, in his official
capacity as the Chief, National Capital Regional Police Office (NCRPO), PEDRO BULAONG, in his official
capacity as the Chief, Manila Police District (MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND
PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND
INSTRUCTIONS, Respondents.
x---------------------------------x
G.R. No. 169881 April 25, 2006
KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL
MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU),
represented by its National President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE
MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents.
D E C I S I O N
AZCUNA, J .:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,
1
allege that they are citizens and taxpayers of the
Philippines and that their rights as organizations and individuals were violated when the rally they participated in on
October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,
2
who allege that
they were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was
preempted and violently dispersed by the police. They further assert that on October 5, 2005, a group they
participated in marched to Malacaang to protest issuances of the Palace which, they claim, put the country under
an "undeclared" martial rule, and the protest was likewise dispersed violently and many among them were arrested
and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,
3
allege that they conduct
peaceful mass actions and that their rights as organizations and those of their individual members as citizens,
specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of "Calibrated
Preemptive Response" (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge
but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to
several of their members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-
sponsored was scheduled to proceed along Espaa Avenue in front of the University of Santo Tomas and going
towards Mendiola bridge. Police officers blocked them along Morayta Street and prevented them from proceeding
further. They were then forcibly dispersed, causing injuries on one of them.
4
Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and
14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally"
policy and the CPR policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The
Government [And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. This Act shall be known as "The Public Assembly Act of 1985."
Sec. 2. Declaration of policy. The constitutional right of the people peaceably to assemble and petition the
government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the
State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal
protection of the law.
Sec. 3. Definition of terms. For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass
or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an
opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether
political, economic or social; or petitioning the government for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes
shall be governed by local ordinances; Provided, however, That the declaration of policy as provided in
Section 2 of this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other concerted action in strike areas by
workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules
and regulations, and by the Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare,
park, plaza, square, and/or any open space of public ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace
keeping authorities shall observe during a public assembly or in the dispersal of the same.
(d) "Modification of a permit" shall include the change of the place and time of the public assembly, rerouting
of the parade or street march, the volume of loud-speakers or sound system and similar changes.
Sec. 4. Permit when required and when not required. A written permit shall be required for any person or persons
to organize and hold a public assembly in a public place. However, no permit shall be required if the public
assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in
which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of
a government-owned and operated educational institution which shall be subject to the rules and regulations of said
educational institution. Political meetings or rallies held during any election campaign period as provided for by law
are not covered by this Act.
Sec. 5. Application requirements. All applications for a permit shall comply with the following guidelines:
(a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose
of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended
activity; and the probable number of persons participating, the transport and the public address systems to
be used.
(b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction
the intended activity is to be held, at least five (5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or
municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or
municipal building.
Sec. 6. Action to be taken on the application.
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there
is clear and convincing evidence that the public assembly will create a clear and present danger to public
order, public safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from
the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason
the mayor or any official acting in his behalf refuse to accept the application for a permit, said application
shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have
been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the
denial or modification of the permit, he shall immediately inform the applicant who must be heard on the
matter.
(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his
permit, the applicant may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit
Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to
the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on
appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant
shall be immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing.
Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his
absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
Sec. 7. Use of Public throroughfare. Should the proposed public assembly involve the use, for an appreciable
length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf
may, to prevent grave public inconvenience, designate the route thereof which is convenient to the participants or
reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free
flow of commerce and trade.
Sec. 8. Responsibility of applicant. It shall be the duty and responsibility of the leaders and organizers of a public
assembly to take all reasonable measures and steps to the end that the intended public assembly shall be
conducted peacefully in accordance with the terms of the permit. These shall include but not be limited to the
following:
(a) To inform the participants of their responsibility under the permit;|avvphi| .net
(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful
activities of the public assembly;
(c) To confer with local government officials concerned and law enforcers to the end that the public
assembly may be held peacefully;
(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and
(e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with
the rights of other persons not participating in the public assembly.
Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the
holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters
away from the area of activity ready to maintain peace and order at all times.
Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their
assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility
to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is
primordial. Towards this end, law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete
uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal
parts of their uniform and must observe the policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be
equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes
with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the
public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of
property.
Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However,
when an assembly becomes violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the
attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at
the police or at the non-participants, or at any property causing damage to such property, the ranking officer
of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the
public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or
abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants
of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to
forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he
violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be
governed by Article 125 of the Revised Penal Code, as amended;
(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not
constitute a ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a
permit is required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. The following shall constitute violations of the Act:
(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first
secured that written permit where a permit is required from the office concerned, or the use of such permit
for such purposes in any place other than those set out in said permit: Provided, however, That no person
can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the
mayor or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by
the mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to
disperse the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the
public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the
like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a
motor vehicle, its horns and loud sound systems.
Sec. 14. Penalties. Any person found guilty and convicted of any of the prohibited acts defined in the immediately
preceding section shall be punished as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six
months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by
imprisonment of six months and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six
years without prejudice to prosecution under Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day
to thirty days.
Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of
this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as
far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at
any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks
within the period of six months from the effectivity this Act.
Sec. 16. Constitutionality. Should any provision of this Act be declared invalid or unconstitutional, the validity or
constitutionality of the other provisions shall not be affected thereby.
Sec. 17. Repealing clause. All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts
thereof which are inconsistent with the provisions of this Act are hereby repealed, amended, or modified
accordingly.
Sec. 18. Effectivity. This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by Malacaang dated September 21, 2005, shown in
Annex "A" to the Petition in G.R. No. 169848, thus:
Malacaang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation,
sow disorder and incite people against the duly constituted authorities, we have instructed the PNP as well as the
local government units to strictly enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard
and arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions
and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not
stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions
that are inimical to public order, and the peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a
vigilant and proactive government.
We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic
society.
The Presidents call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the
International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a
signatory.
5
They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence
or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom
of expression clause as the time and place of a public assembly form part of the message for which the expression
is sought. Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government.
The words "lawful cause," "opinion," "protesting or influencing" suggest the exposition of some cause not espoused
by the government. Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the
government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the
right to peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise
of that right. It also characterizes public assemblies without a permit as illegal and penalizes them and allows their
dispersal. Thus, its provisions are not mere regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in
the laws (clear and present danger and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set
forth in B.P. No. 880, aside from being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P.
No. 880 cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits
to this right, the limits provided are unreasonable: First, allowing the Mayor to deny the permit on clear and
convincing evidence of a clear and present danger is too comprehensive. Second, the five-day requirement to apply
for a permit is too long as certain events require instant public assembly, otherwise interest on the issue would
possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can
perform their act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the
maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise
by the people of the right to peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza,
Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office
(NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity;Angelo
Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief,
NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and private individuals acting under their
control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo
Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not presented evidence that they had been "injured,
arrested or detained because of the CPR," and that "those arrested stand to be charged with violating Batas
Pambansa [No.] 880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place
and manner regulation embodied in B.P. No. 880 violates the three-pronged test for such a measure, to wit:
(a) B.P. No. 880 is content-neutral, i.e., it has no reference to content of regulated speech; (b) B.P. No. 880
is narrowly tailored to serve a significant governmental interest, i.e., the interest cannot be equally well
served by a means that is less intrusive of free speech interests; and (c) B.P. No. 880 leaves open
alternative channels for communication of the information.
6
3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the
public assemblys time, place and manner of conduct. It entails traffic re-routing to prevent grave public
inconvenience and serious or undue interference in the free flow of commerce and trade. Furthermore,
nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a rallys program content or the
statements of the speakers therein, except under the constitutional precept of the "clear and present danger
test." The status of B.P. No. 880 as a content-neutral regulation has been recognized in Osmea v.
Comelec.
7
4. Adiong v. Comelec
8
held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of
holding public assemblies and the law passes the test for such regulation, namely, these regulations need
only a substantial governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court
9
held that a local chief executive has the authority to exercise
police power to meet "the demands of the common good in terms of traffic decongestion and public
convenience." Furthermore, the discretion given to the mayor is narrowly circumscribed by Sections 5 (d),
and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public
assembly will create a clear and present danger to public order, public safety, public convenience, public
morals or public health" and "imminent and grave danger of a substantive evil" both express the meaning of
the "clear and present danger test."
10
7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to
protect public interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is a
more pro-active and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in
the streets. It does not replace the rule of maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838
should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit
independently of B.P. No. 880; that his denials of permits were under the "clear and present danger" rule as there
was a clamor to stop rallies that disrupt the economy and to protect the lives of other people; that J. B. L. Reyes v.
Bagatsing,
11
Primicias v. Fugoso,
12
and Jacinto v. CA,
13
have affirmed the constitutionality of requiring a permit; that
the permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a content-
based regulation because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court
set the cases for oral arguments on April 4, 2006,
14
stating the principal issues, as follows:
1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a)
thereof, and Republic Act No. 7160:
(a) Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?
(e) Do they violate international human rights treaties and the Universal Declaration of Human
Rights?
2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):
(a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005?
During the course of the oral arguments, the following developments took place and were approved and/or noted by
the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions
raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as
applied to the rallies of September 20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used
as a legal term inasmuch as, according to respondents, it was merely a "catchword" intended to clarify what
was thought to be a misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as
stated in the affidavit executed by Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it
does not replace B.P. No. 880 and the maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into account the foregoing developments.
Petitioners standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and
exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a
permit for all who would publicly assemble in the nations streets and parks. They have, in fact, purposely engaged
in public assemblies without the required permits to press their claim that no such permit can be validly required
without violating the Constitutional guarantee. Respondents, on the other hand, have challenged such action as
contrary to law and dispersed the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with
freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional
protection. For these rights constitute the very basis of a functional democratic polity, without which all the other
rights would be meaningless and unprotected. As stated in Jacinto v. CA,
15
the Court, as early as the onset of this
century, in U.S. v. Apurado,
16
already upheld the right to assembly and petition, as follows:
There is no question as to the petitioners rights to peaceful assembly to petition the government for a redress of
grievances and, for that matter, to organize or form associations for purposes not contrary to law, as well as to
engage in peaceful concerted activities. These rights are guaranteed by no less than the Constitution, particularly
Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds
with hallowed pronouncements defending and promoting the peoples exercise of these rights. As early as the onset
of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as
far as to acknowledge:
"It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of
excitement, and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the
disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon
every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the
assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for
redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting
authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out
and punished therefor, but the utmost discretion must be exercised in drawing the line
betweendisorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous
uprising."
Again, in Primicias v. Fugoso,
17
the Court likewise sustained the primacy of freedom of speech and to assembly and
petition over comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances,
are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic
countries. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of
those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others
having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of
such and other constitutional rights is termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the
people. This sovereign police power is exercised by the government through its legislative branch by the enactment
of laws regulating those and other constitutional and civil rights, and it may be delegated to political subdivisions,
such as towns, municipalities and cities by authorizing their legislative bodies called municipal and city councils to
enact ordinances for the purpose.
18
Reyes v. Bagatsing
19
further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech
and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be
passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble
and petition the Government for redress of grievances." Free speech, like free press, may be identified with
the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment.
There is to be then no previous restraint on the communication of views or subsequent liability whether in
libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a "clear
and present danger of a substantive evil that [the State] has a right to prevent." Freedom of assembly
connotes the right of the people to meet peaceably for consultation and discussion of matters of public
concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less
denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm
had occasion to stress that it is a necessary consequence of our republican institutions and complements
the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the
American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to
freedom of speech and of the press were coupled in a single guarantee with the rights of the people
peaceably to assemble and to petition the government for redress of grievances. All these rights, while not
identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this
right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole
justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public
morals, public health, or any other legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better
expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however,
that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the
power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to
avert force and explosions due to restrictions upon rational modes of communication that the guaranty of
free speech was given a generous scope. But utterance in a context of violence can lose its significance as
an appeal to reason and become part of an instrument of force. Such utterance was not meant to be
sheltered by the Constitution." What was rightfully stressed is the abandonment of reason, the utterance,
whether verbal or printed, being in a context of violence. It must always be remembered that this right
likewise provides for a safety valve, allowing parties the opportunity to give vent to their views, even if
contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed
of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression
of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is
dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing
from the dissenter. That is to ensure a true ferment of ideas. There are, of course, well-defined limits. What
is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less
preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or
assembly. Resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is
not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v.
Apurado: "It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always wrought
to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less
perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." It bears
repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of
vandalism must be avoided. To give free rein to ones destructive urges is to call for condemnation. It is to
make a mockery of the high estate occupied by intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on
the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view
expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of
streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out
of mind, have been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient times, been a part
of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to
use the streets and parks for communication of views on national questions may be regulated in the interest
of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but must not, in the guise of regulation, be
abridged or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias made
explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically
affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that
leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for
public use," which certainly is not the only purpose that it could serve. To repeat, there can be no valid
reason why a permit should not be granted for the proposed march and rally starting from a public park that
is the Luneta.
4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly
two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter.
In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at
Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in
the case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire
P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting thereon, shall be
permitted unless a special license therefor shall first be obtained from the selectmen of the town or from
licensing committee, was construed by the Supreme Court of New Hampshire as not conferring upon the
licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of
the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State
Supreme Court, held that a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights
of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and
manner of the parade or procession, with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse
license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be
ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society
maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The
authority of a municipality to impose regulations in order to assure the safety and convenience of the people
in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of
the means of safeguarding the good order upon which they ultimately depend. The control of travel on the
streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the
use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot
be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled
to protection."
x x x
6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these
words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to
the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers,
but whether their utterances transcend the bounds of the freedom of speech which the Constitution
protects." There could be danger to public peace and safety if such a gathering were marked by turbulence.
That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable.
It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether
or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that
there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the
relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific
public place is that the permit must be for the assembly being held there. The exercise of such a right, in
the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the
plea that it may be exercised in some other place."
x x x
8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take place. If it were a private place,
only the consent of the owner or the one entitled to its legal possession is required. Such application should
be filed well ahead in time to enable the public official concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition
to such refusal or modification that the clear and present danger test be the standard for the decision
reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper
judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are
highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary,
-- even more so than on the other departments rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of
judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of
such rights, enjoying as they do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing
(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The applicants for a permit to
hold an assembly should inform the licensing authority
of the date, the public placewhere and the time when it
will take place. If it were a private place, only the
consent of the owner or the one entitled to its legal
possession is required. Such application should be
filed well ahead in time to enable the public official
concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant but
at another public place. It is an indispensable condition
to such refusal or modification that the clear and
present danger test be the standard for the decision
reached. If he is of the view that there is such an
imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter,
B.P. No. 880
Sec. 4. Permit when required and when not required.--
A written permit shall be required for any person or
persons to organize and hold a public assembly in a
public place. However, no permit shall be required if
the public assembly shall be done or made in a
freedom park duly established by law or ordinance or
in private property, in which case only the consent of
the owner or the one entitled to its legal possession is
required, or in the campus of a government-owned
and operated educational institution which shall be
subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any
election campaign period as provided for by law are
not covered by this Act.
Sec. 5. Application requirements.-- All applications for
a permit shall comply with the following guidelines:
(a) The applications shall be in writing and
his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if
so minded, they can have recourse to the proper
judicial authority.
shall include the names of the leaders or
organizers; the purpose of such public
assembly; the date, time and duration thereof,
and place or streets to be used for the
intended activity; and the probable number of
persons participating, the transport and the
public address systems to be used.
(b) The application shall incorporate the duty
and responsibility of applicant under Section 8
hereof.
(c) The application shall be filed with the office
of the mayor of the city or municipality in
whose jurisdiction the intended activity is to be
held, at least five (5) working days before the
scheduled public assembly.
(d) Upon receipt of the application, which must
be duly acknowledged in writing, the office of
the city or municipal mayor shall cause the
same to immediately be posted at a
conspicuous place in the city or municipal
building.
Sec. 6. Action to be taken on the application.
(a) It shall be the duty of the mayor or any
official acting in his behalf to issue or grant a
permit unless there is clear and convincing
evidence that the public assembly will create a
clear and present danger to public order,
public safety, public convenience, public
morals or public health.
(b) The mayor or any official acting in his
behalf shall act on the application within two
(2) working days from the date the application
was filed, failing which, the permit shall be
deemed granted. Should for any reason the
mayor or any official acting in his behalf refuse
to accept the application for a permit, said
application shall be posted by the applicant on
the premises of the office of the mayor and
shall be deemed to have been filed.
(c) If the mayor is of the view that there is
imminent and grave danger of a substantive
evil warranting the denial or modification of the
permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in writing
and served on the applica[nt] within twenty-
four hours.
(e) If the mayor or any official acting in his
behalf denies the application or modifies the
terms thereof in his permit, the applicant may
contest the decision in an appropriate court of
law.
(f) In case suit is brought before the
Metropolitan Trial Court, the Municipal Trial
Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate
Appellate Court, its decisions may be appealed
to the appropriate court within forty-eight (48)
hours after receipt of the same. No appeal
bond and record on appeal shall be required. A
decision granting such permit or modifying it in
terms satisfactory to the applicant shall be
immediately executory.
(g) All cases filed in court under this section
shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall
be immediately endorsed to the executive
judge for disposition or, in his absence, to the
next in rank.
(h) In all cases, any decision may be appealed
to the Supreme Court.
(i) Telegraphic appeals to be followed by
formal appeals are hereby allowed.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply
regulates the time, place and manner of the assemblies. This was adverted to in Osmea v. Comelec,
20
where the
Court referred to it as a "content-neutral" regulation of the time, place, and manner of holding public assemblies.
21
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies
22
that
would use public places. The reference to "lawful cause" does not make it content-based because assemblies really
have to be for lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the
words "opinion," "protesting" and "influencing" in the definition of public assembly content based, since they can
refer to any subject. The words "petitioning the government for redress of grievances" come from the wording of the
Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists
and is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety,
public convenience, public morals or public health. This is a recognized exception to the exercise of the right even
under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
x x x
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is
possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are
determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms
of others and of meeting the just requirements of morality, public order and the general welfare in a
democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the
United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or
morals.
Contrary to petitioners claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to
be defined. Its ordinary meaning is well-known. Websters Dictionary defines it, thus:
23
public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or
characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade,
procession or any other form of mass or concerted action held in a public place." So it does not cover any and all
kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the
extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the clear and
present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec.
6(c) substantially means the same thing and is not an inconsistent standard. As to whether respondent Mayor has
the same power independently under Republic Act No. 7160
24
is thus not necessary to resolve in these proceedings,
and was not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of
freedom parks where no prior permit is needed for peaceful assembly and petition at any time:
Sec. 15. Freedom parks. Every city and municipality in the country shall within six months after the effectivity of
this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as
far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at
any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks
within the period of six months from the effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a
freedom park Fuente Osmea.
That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.
If this is so, the degree of observance of B.P. No. 880s mandate that every city and municipality set aside a
freedom park within six months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The
matter appears to have been taken for granted amidst the swell of freedom that rose from the peaceful revolution of
1986.
Considering that the existence of such freedom parks is an essential part of the laws system of regulation of the
peoples exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty
(30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any
public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the
law. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices
should, however, be given to the authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of
the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set
forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by
the Solicitor General, thus:
14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition
of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the
military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the
same." Unfortunately, however, the phrase "maximum tolerance" has acquired a different meaning over the years.
Many have taken it to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to
public order. More so, other felt that they need not bother secure a permit when holding rallies thinking this would be
"tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real essence under B.P.
Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all
pubic assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes
certain instances when water cannons may be used. This could only mean that "maximum tolerance" is not in
conflict with a "no permit, no rally policy" or with the dispersal and use of water cannons under certain
circumstances for indeed, the maximum amount of tolerance required is dependent on how peaceful or unruly a
mass action is. Our law enforcers should calibrate their response based on the circumstances on the ground with
the view to preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly
was not referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only
wanted to disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of
keeping the peace even when confronted with dangerously threatening behavior. I wanted to send a message that
we would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I said, "we have
instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all
persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is at loggerheads
with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered
my co-respondents to violate any law.
25
At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid
purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly,
what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, which
specifically means the following:
Sec. 3. Definition of terms. For purposes of this Act:
x x x
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping
authorities shall observe during a public assembly or in the dispersal of the same.
x x x
Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the
holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters
away from the area of activity ready to maintain peace and order at all times.
Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their
assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility
to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is
primordial.1avvphil. net Towards this end, law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete
uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal
parts of their uniform and must observe the policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be
equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes
with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the
public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of
property.
Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However,
when an assembly becomes violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the
attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at
the police or at the non-participants, or at any property causing damage to such property, the ranking officer
of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the
public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or
abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants
of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to
forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he
violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be
governed by Article 125 of the Revised Penal Code, as amended;
(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not
constitute a ground for dispersal.
x x x
Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a
permit is required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. The following shall constitute violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the
public assembly;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public
assembly or on the occasion thereof:
x x x
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its
horns and loud sound systems.
Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on
applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is
immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists
who can show the police an application duly filed on a given date can, after two days from said date, rally in
accordance with their application without the need to show a permit, the grant of the permit being then presumed
under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in
which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the
law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of
expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has
repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that "in cases involving
liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed,
the marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to
the courts with a heavy presumption against their validity. These laws and actions are subjected
toheightened scrutiny."
26
For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must
be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police
agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not
curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of
assemblies. Far from being insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The
delegation to the mayors of the power to issue rally "permits" is valid because it is subject to the constitutionally-
sound "clear and present danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline
of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no
such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality
or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold
an assembly therein. The only requirement will be written notices to the police and the mayors office to allow proper
coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior
and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15
of Batas Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza
in every city and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the
giving of advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition
in the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law.
Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of
maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and
toSTRICTLY OBSERVE the requirements of maximum tolerance. The petitions are DISMISSED in all other
respects, and the constitutionality of Batas Pambansa No. 880 is SUSTAINED.
No costs.
SO ORDERED.
ADOLFO S. AZCUNA
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
(On Leave)
REYNATO S. PUNO
Associate Justice
LEONARDO A. QUISUMBING
Asscociate Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
ANGELINA SANDOVAL-GUTIERREZ
Asscociate Justice
ANTONIO T. CARPIO
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ
Asscociate Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Asscociate Justice
ROMEO J. CALLEJO, SR.
Associate Justice
DANTE O. TINGA
Asscociate Justice
MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
Associate Justice Asscociate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the cases were assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
1
Petition for Certiorari, Mandamus and Prohibition with Prayer for Temporary Restraining Order filed by
Bayan, Karapatan, Kilusang Magbubukid Ng Pilipinas (KMP), COURAGE, GABRIELA, Fr. Jose A. Dizon,
Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar.
2
Petition for Prohibition, Injunction, Restraining Order and other Just and Equitable Reliefs filed by Jess Del
Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay,
Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres,
Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober,
Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los
Reyes, Pedrito Fadrigon.
3
Petition for Certiorari, Prohibition and Mandamus with Prayer for Issuance of Restraining Order filed by
Kilusang Mayo Uno, represented by its Chairperson Elmer C. Labog and Secretary General Joel
Maglunsod, National Federation of Labor Unions Kilusang Mayo Uno (NAFLU-KMU), represented by its
National President, Joselito V. Ustarez, Antonio C. Pascual, Salvador T. Carranza, Gilda Sumilang,
Francisco Lastrella, and Roque M. Tan.
4
Petitioner Gilda Sumilang.
5
Petition, G.R. No. 169838, p. 29.
6
Citing Adiong v. Commission on Elections, 207 SCRA 712 (1992); United States v. OBrien, 391 U.S. 367,
20 L. Ed. 2d 672 (1968); see R.D. Rotunda, et al., TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE
AND PROCEDURE (1986) citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct.
3065, 82 L.Ed. 2d 221 (1984).
7
G.R. No. 132231, March 31, 1998, 288 SCRA 447.
8
G.R. No. 103956, March 31, 1992, 207 SCRA 712.
9
G.R. No. 71169, August 25, 1989, 176 SCRA 719.
10
Citing Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, July 26, 1996, 259 SCRA 529.
11
G. R. No. L-65366, November 9, 1983, 125 SCRA 553.
12
80 Phil. 71 (1948).
13
G.R. No. 124540, November 14, 1997.
14
Resolution dated March 28, 2006.
15
346 Phil. 665-666 (1997).
16
7 Phil. 422 (1907).
17
80 Phil. 71 (1948).
18
Ibid at 75-76 (Emphasis supplied).
19
G.R. No. L-65366, November 9, 1983, 125 SCRA 553.
20
G.R. No. 132231, March 31, 1998, 288 SCRA 447.
21
Ibid, p. 478.
22
Except picketing and other concerted action in strike areas by workers and employees resulting from a
labor dispute, which are governed by the Labor Code and other labor laws; political meeting or rallies held
during any election campaign period, which are governed by the Election Code and other election related
laws; and public assemblies in the campus of a government-owned and operated educational institution,
which shall be subject to the rules and regulations of said educational institution. (Sec. 3[a] and Sec. 4 of
B.P. No. 880).
23
WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE
UNABRIDGED (1993 Ed)., p. 1836.
24
The Local Government Code. Specifically, Section 16 stating the general welfare clause, thus:
Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall ensure
and support among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
25
Respondents Consolidated Memorandum, pp. 30-31 (Emphasis supplied by respondents).
26
Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 97882 August 28, 1996
THE CITY OF ANGELES, Hon. ANTONIO ABAD SANTOS, in his capacity as MAYOR of Angeles City, and the
SANGGUNIANG PANLUNGSOD OF THE CITY OF ANGELES, petitioners,
vs.
COURT OF APPEALS and TIMOG SILANGAN DEVELOPMENT CORPORATION, respondents.
PANGANIBAN, J .:p
In resolving this petition, the Court addressed the questions of whether a donor of open spaces in a residential
subdivision can validly impose conditions on the said donation; whether the city government as donee can build and
operate a drug rehabilitation center on the donated land intended for open space; and whether the said donation
may be validly rescinded by the donor.
Petitioners claim they have the right to construct and operate a drug rehabilitation center on the donated land in
question, contrary to the provisions stated in the amended Deed of Donation.
On the other hand, private respondent, owner/developer of the Timog Park residential subdivision in Angeles City,
opposed the construction and now, the operation of the said center on the donated land, which is located within said
residential subdivision.
Before us is a petition for review on certiorari assailing the Decision
1
of the Court of Appeals
2
dated October 31, 1990,
which affirmed the decision
3
of the Regional Trial Court of Angeles City Branch 56,
4
dated February 15, 1989.
The Antecedents
In a Deed of Donation dated March 9, 1984, subsequently superseded by a Deed of Donation dated September 27,
1984, which in turn was superseded by an Amended Deed of Donation dated November 26, 1984, private
respondent donated to the City of Angeles, 51 parcels of land situated in Barrio Pampang, City of Angeles, with an
aggregate area of 50,676 square meters, more or less, part of a bigger area also belonging to private respondent.
The amended deed
5
provided, among others, that:
2. The properties donated shall be devoted and utilized solely for the site of the Angeles City Sports
Center (which excludes cockfighting) pursuant to the plans to be submitted within six (6) months by
the DONEE to the DONOR for the latters approval, which approval shall not be unreasonably
withheld as long as entire properties donated are developed as a Sports Complex. Any change or
modification in the basic design or concept of said Sports Center must have the prior written consent
of the DONOR.
3. No commercial building, commercial complex, market or any other similar complex, mass or
tenament (sic) housing/building(s) shall be constructed in the properties donated nor shall
cockfighting, be allowed in the premises.
4. The construction of the Sports Center shall commence within a period of one (1) year from March
9, 1984 and shall be completed within a period of five (5) years from March 9, 1984.
xxx xxx xxx
6. The properties donated (which is more than five (5) percent of the total land area of the DONORs
subdivision) shall constitute the entire open space for DONORs subdivision and all other lands or
areas previously reserved or designated, including Lot 1 and Lot 2A of Block 72 and the whole Block
29 are dispensed with, and rendered free, as open spaces, and the DONEE hereby agrees to
execute and deliver all necessary consents, approvals, endorsements, and authorizations to effect
the foregoing.
7. The properties donated are devoted and described as "open spaces" of the DONORs subdivision,
and to this effect, the DONEE, upon acceptance of this donation, releases the DONOR and/or
assumes any and all obligations and liabilities appertaining to the properties donated.
8. Any substantial breach of the foregoing provisos shall entitle the DONOR to revoke or rescind this
Deed of Donation, and in such eventuality, the DONEE agrees to vacate and return the premises,
together with all improvements, to the DONOR peacefully without necessity of judicial action.
On July 19, 1988, petitioners started the construction of a drug rehabilitation center on a portion of the donated land.
Upon learning thereof, private respondent protested such action for being violative of the terms and conditions of the
amended deed and prejudicial to its interest and to those of its clients and residents. Private respondent also offered
another site for the rehabilitation center. However, petitioners ignored the protest, maintaining that the construction
was not violative of the terms of the donation. The alternative site was rejected because, according to petitioners,
the site was too isolated and had no electric and water facilities.
On August 8, 1988, private respondent filed a complaint with the Regional Trial Court, Branch 56, in Angeles City
against the petitioners, alleging breach of the conditions imposed in the amended deed of donation and seeking the
revocation of the donation and damages, with preliminary injunction and/or temporary restraining order to halt the
construction of the said center.
On August 10, 1988, the trial court issued a temporary restraining order to enjoin the petitioners from further
proceeding with the construction of the center, which at that time was already 40% complete.
However, the trial court denied the prayer for preliminary injunction based on the prohibition in Presidential Decree
No. 1818.
In their Answer with counterclaim, petitioners admitted the commencement of the construction but alleged inter
aliathat the conditions imposed in the amended deed were contrary to Municipal Ordinance No. 1, Series of 1962,
otherwise known as the Subdivision Ordinance of the Municipality of Angeles.
6
On October 15, 1988, private respondent filed a Motion for Partial Summary Judgment on the ground that the main
defense of the petitioners was anchored on a pure question of law and that their legal position was untenable.
The petitioners opposed, contending that they had a meritorious defense as (1) private respondents had no right to
dictate upon petitioners what to do with the donated land and how to do it so long as the purpose remains for public
use; and (2) the cause of action of the private respondent became moot and academic when the Angeles City
Council repealed the resolution providing for the construction of said drug rehabilitation center and adopted a new
resolution changing the purpose and usage of said center to a "sports development and youth center" in order to
conform with the sports complex project constructed on the donated land.
On February 15, 1989, the trial court rendered its decision, in relevant part reading as follows:
. . . the Court finds no inconsistency between the conditions imposed in the Deeds of Donation and
the provision of the Subdivision Ordinance of the City of Angeles requiring subdivisions in Angeles
City to reserve at least one (1) hectare in the subdivision as suitable sites known as open spaces for
parks, playgrounds, playlots and/or other areas to be rededicated to public use. On the contrary, the
condition requiring the defendant city of Angeles to devote and utilize the properties donated to it by
the plaintiff for the site of the Angeles City Sports Center conforms with the requirement in the
Subdivision Ordinance that the subdivision of the plaintiff shall be provided with a playground or
playlot, among others.
On the other hand the term "public use" in the Subdivision Ordinance should not be construed to
include a Drug Rehabilitation Center as that would be contrary to the primary purpose of the
Subdivision Ordinance requiring the setting aside of a portion known as "Open Space" for park,
playground and playlots, since these are intended primarily for the benefit of the residents of the
subdivision. While laudable to the general public, a Drug Rehabilitation Center in a subdivision will
be a cause of concern and constant worry to its residents.
As to the third issue in paragraph (3), the passage of the Ordinance changing the purpose of the
building constructed in the donated properties from a Drug Rehabilitation Center to a Sports Center
comes too late. It should have been passed upon the demand of the plaintiff to the defendant City of
Angeles to stop the construction of the Drug Rehabilitation Center, not after the complaint was filed.
Besides, in seeking the revocation of the Amended Deed of Donation, plaintiff also relies on the
failure of the defendant City of Angeles to submit the plan of the proposed Sports Center within six
(6) months and construction of the same within five years from March 9, 1984, which are substantial
violations of the conditions imposed in the Amended Deed of Donation.
The dispositive portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered:
(1) Enjoining defendants, its officers, employees and all persons acting on their behalf to perpetually
cease and desist from constructing a Drug Rehabilitation Center or any other building or
improvement on the Donated Land.
(2) Declaring the amended Deed of Donation revoked and rescinded and ordering defendants to
peacefully vacate and return the Donated Land to plaintiff, together with all the improvements
existing thereon. And,
(3) Denying the award of compensatory or actual and exemplary damages including attorneys fees.
NO PRONOUNCEMENT AS TO COST.
In March 1989, petitioners fried their Notice of Appeal. On April 15, 1989 while the appeal was pending, petitioners
inaugurated the Drug Rehabilitation Center.
7
On April 26, 1991, the respondent Court rendered the assailed Decision affirming the ruling of the trial court.
Subsequently, the petitioners motion for re-consideration was also denied for lack of merit.
Consequently, this Petition for Review.
The Issues
The key issues
8
raised by petitioners may be restated as follows:
I. Whether a subdivision owner/developer is legally bound under Presidential Decree No. 1216 to
donate to the city or municipality the "open space" allocated exclusively for parks, playground and
recreational use.
II. Whether the percentage of the "open space" allocated exclusively for parks, playgrounds and
recreational use is to be based on the "gross area" of the subdivision or on the total area reserved
for "open space".
III. Whether private respondent as subdivision owner/developer may validly impose conditions in the
Amended Deed of Donation regarding the use of the "open space" allocated exclusively for parks
and playgrounds..
IV. Whether or not the construction of the Drug Rehabilitation Center on the donated "open space"
may be enjoined.
V. Whether the donation by respondents subdivision owner/developer of the "open space" of its
subdivision in favor of petitioner City of Angeles may be revoked for alleged violation of the
Amended Deed of Donation.
Central to this entire controversy is the question of whether the donation of the open space may be revoked at all.
First Issue: Developer Legally Bound to Donate Open Space
The law involved in the instant case is Presidential Decree No. 1216, dated October 14, 1977,
9
which reads:
PRESIDENTIAL DECREE NO. 1216
Defining "Open Space" In Residential Subdivisions And Amending Section 31 Of Presidential
Decree No. 957 Requiring Subdivision Owners To Provide Roads, Alleys, Sidewalks And Reserve
Open Space For Parks Or Recreational Use.
WHEREAS, there is a compelling need to create and maintain a healthy environment in human
settlements by providing open spaces, roads, alleys and sidewalks as may be deemed suitable to
enhance the quality of life of the residents therein;
WHEREAS, such open spaces, roads, alleys and sidewalks in residential subdivisions are for public
use and are, therefore, beyond the commerce of men;
WHEREAS, pursuant to Presidential Decree No. 953 at least thirty percent (30%) of the total area of
a subdivision must be reserved, developed and maintained as open space for parks and recreational
areas, the cost of which will ultimately be borne by the lot buyers which thereby increase the
acquisition price of subdivision lots beyond the reach of the common mass;
WHEREAS, thirty percent (30%) required open space can be reduced to a level that will make the
subdivision industry viable and the price of residential lots within the means of the low income group
at the same time preserve the environmental and ecological balance through rational control of land
use and proper design of space and facilities;
WHEREAS, pursuant to Presidential Decree No. 757, government efforts in housing, including
resources, functions and activities to maximize results have been concentrated into one single
agency, namely, the National Housing Authority;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me by the Constitution, do hereby order and decree:
Sec. 1. For purposes of this Decree, the term "open apace" shall mean an area reserved exclusively
for parks, playgrounds, recreational uses, schools, roads, places of worship, hospitals, health
centers, barangay centers and other similar facilities and amenities.
Sec. 2. Section 31 of Presidential Decree No. 957 is hereby amended to read as follows:
Sec. 31. Roads, Alleys, Sidewalks and Open Spaces The owner as developer of a
subdivision shall provide adequate roads, alleys and sidewalks. For subdivision
projects one (1) hectare or more, the owner or developer shall reserve thirty percent
(30%) of the gross area for open space. Such open space shall have the following
standards allocated exclusively for parks, playgrounds and recreational use:
a. 9% of gross area for high density or social housing (66 to 100 family lots per gross
hectare).
b. 7% of gross area for medium-density or economic housing (21 to 65 family lots per
gross hectare).
c. 3.5% of gross area for low-density or open market housing (20 family lots and
below per gross hectare).
These areas reserved for parks, playgrounds and recreational use shall be non-alienable public
lands, and non-buildable. The plans of the subdivision project shall include tree planting on such
parts of the subdivision as may be designated by the Authority.
Upon their completion certified to by the Authority, the roads, alleys, sidewalks and playgrounds
shall be donated by the owner or developer to the city or municipality and it shall be mandatory for
the local governments to accept provided, however, that the parks and playgrounds maybe donated
to the Homeowners Association of the project with the consent of the city or municipality concerned.
No portion of the parks and playgrounds donated thereafter shall be converted to any other purpose
or purposes.
Sec. Sections 2 and 5 of Presidential Decree No. 953 are hereby repealed and other laws, decrees,
executive orders, institutions, rules and regulations or parts thereof inconsistent with these
provisions are also repealed or amended accordingly.
Sec. 4. This Decree shall take effect immediately.
Pursuant to the wording of Sec. 31 of P.D. 957 as above amended by the aforequoted P.D. No. 1216, private
respondent is under legal obligation to donate the open space exclusively allocated for parks, playgrounds and
recreational use to the petitioner.
This can be clearly established by referring to the original provision of Sec. 31 of P.D. 957, which reads as follows:
Sec. 31. Donation of roads and open spaces to local government The registered owner developer
of the subdivision or condominium project, upon completion of the development of said project may,
at his option, convey by way of donation the roads and open spaces found within the project to the
city or municipality wherein the project is located. Upon acceptance of he donation by the city or
municipality concerned, no portion of the area donated shall thereafter be converted to any other
purpose or purposes unless after hearing, the proposed conversion is approved by the Authority.
(Emphasis supplied)
It will be noted that under the aforequoted original provision, it was optional on the part of the owner or developer to
donate the roads and spaces found within the project to the city or municipality where the project is located.
Elsewise stated, there was no legal obligation to make the donation.
However, said Sec. 31 as amended now states in its last paragraph:
Upon their completion . . ., the roads, alleys, sidewalks and playgrounds shall be donated by the
owner or developer to the city or municipality and it shall be mandatory for the local government to
accept; provided, however, that the parks and playgrounds may be donated to the Homeowners
Association of the project with the consent of the city or must concerned. . . .
It is clear from the aforequoted amendment that it is no longer optional on the part of the subdivision
owner/developer to donate the grounds; rather there is now a legal obligation to donate the same. Although
there is a proviso a proviso that the donation of the parks and playgrounds may be made to the homeowners
association of the project with the consent of the city of municipality, concerned, nonetheless, the
owner/developer is still obligated under the law to donate. Such option does not change the mandatory
hectare of the provision. The donation has to be made regardless of which donee is picked by the
owner/developer. The consent requirement before the same can be donated to the homeowners"
association emphasizes this point.
Second Issue: Percentage of Area for Parks and Playgrounds
Petitioners contend that the 3.5% to 9% allotted by Sec. 31 for parks, playgrounds and recreational uses should be
based on the gross area of the entire subdivision, and not merely on the area of the open space alone, as
contended by private respondent and as decided by the respondent Court.
10
The petitioners are correct. The language of Section 31 of P.D. 957 as amended by Section 2 of P.D. 1216 is
wanting in clarity and exactitude, but it can be easily inferred that the phrase "gross area" refers to the entire
subdivision area. The said phrase was used four times in the same section in two sentences, the first of which
reads:
. . . For subdivision projects one (1) hectare or more, the owner or more, the owner or developer
shall reserve thirty percent (30%) of the gross area for open space, . . .
Here, the phrase "30% of the gross area" refers to the total area of the subdivision, not of the open space.
Otherwise, the definition of "open space" would be circular. Thus, logic dictates that the same basis be applied in
the succeeding instances where the phrase "open space" is used, i.e., "9% of gross area... 7% of gross area... 3.5%
of gross area..." Moreover, we agree with petitioners that construing the 3.5% to 9% as applying to the totality of
the open space would result in far too small an area being devoted for parks, playgrounds, etc., thus rendering
meaningless and defeating the purpose of the statute. This becomes clear when viewed in the light of the original
requirement of P.D. 953 ("Requiring the Planting of Trees in Certain Places, etc."), section 2 of which reads:
Sec. 2. Every owner of land subdivided into commerce/residential/industrial lots after the effectivity
of this Decree shall reserve, develop and maintain not less than thirty percent (30%) of the total area
of the subdivision, exclusive of roads, service streets and alleys, as open space for parks and
recreational areas.
No plan for a subdivision shall be approved by the Land Registration Commission or any office or
agency of the government unless at least thirty percent (30%) of the total area of the subdivision,
exclusive, of roads, service streets and alleys, is reserved as open space for parks and recreational
areas . . .
To our mind, it is clear that P.D. 1216 was an attempt to achieve a happy compromise and a realistic balance
between the imperatives of environmental planning and the need to maintain economic feasibility in subdivision and
housing development, by reducing the required area for parks, playgrounds and recreational uses from thirty
percent (30%) to only 3.5% 9% of the entire area of the subdivision.
Third Issue: Imposition of Conditions in Donation of Open Space
Petitioners argue that since the private respondent is required by law to donate the parks and playgrounds, it has no
right to impose the condition in the Amended Deed of Donation that "the properties donated shall be devoted and
utilized solely for the site of the Angeles City Sports Center." It cannot prescribe any condition as to the use of the
area donated because the use of the open spaces already governed by P.D. 1216. In other words, the donation
should be absolute. Consequently, the conditions in the amended deed which were allegedly violated aredeemed
not written. Such being the case, petitioners cannot be considered to have committed any violation of the terms and
conditions of the said amended deed, as the donation is deemed unconditional, and it follows that there is no basis
for revocation of the donation.
However, the general law on donations does not prohibit the imposition of conditions on a donation so long as the
conditions are not illegal or
impossible.
11
In regard to donations of open spaces, P.D. 1216 itself requires among other things that the recreational areas to be
donated be based, as aforementioned, on a percentage (3.5% 7%, or 9%) of the total area of the subdivision
depending on whether the division is low , medium , or high-density. It further declares that such open space
devoted to parks, playgrounds and recreational areas are non-alienable public land and non-buildable. However,
there is no prohibition in either P.D. 957 or P.D. 1216 against imposing conditions on such donation.
We hold that any condition may be imposed in the donation, so long as the same is not contrary to law, morals,
good customs, public order or public policy. The contention of petitioners that the donation should be unconditional
because it is mandatory has no basis in law. P.D. 1216 does not provide that the donation the open space for parks
and playgrounds should be unconditional. To rule that it should be so is tantamount to unlawfully expanding, the
provisions of the decree.
12
In the case at bar, one of the conditions imposed in the Amended Deed of Donation is that the donee should build a
sports complex on the donated land. Since P.D. 1216 clearly requires that the 3.5% to 9% of the gross area alloted
for parks and playgrounds is "non-buildable", then the obvious question arises whether or not such condition was
validly imposed and is binding on the donee. It is clear that the "non-buildable" character applies only to the 3.5% to
9% area set by law. If there is any excess land over and above the 3.5% to 9% required by the decree, which is also
used or allocated for parks, playgrounds and recreational purposes, it is obvious that such excess area is not
covered by the non-buildability restriction. In the instant case, if there be an excess, then the donee would not be
barred from developing and operating a sports complex thereon, and the condition in the amended deed would then
be considered valid and binding.
To determine if the over 50,000 square meter area donated pursuant to the amended deed would yield an excess
over the area required by the decree, it is necessary to determine under which density category the Timog Park
subdivision falls.
If the subdivision falls under the low density or open market housing category, with 20 family lots or below per gross
hectare, the developer will need to allot only 3.5% of gross area for parks and playgrounds, and since the donated
land constitutes "more than five (5) percent of the total land area of the subdivision
13
there would therefore be an
excess of over 1.5% of gross area which would not be non-buildable. Petitioners, on the other hand, alleged (and private
respondent did not controvert) that the subdivision in question is a "medium-density or economic housing" subdivision
based on the sizes of the family lots donated in the amended deed,
14
for which category the decree mandates that not
less than 7% of gross area be set aside. Since the donated land constitutes only a little more than 5% of the gross area of
the subdivision, which is less than the area required to be allocated for non-buildable open space, therefore there is no
"excess land" to speak of. This then means that the condition to build a sports complex on the donated land is contrary to
law and should be considered as not imposed.
Fourth Issue: Injunction vs. Construction of the Drug
Rehabilitation Center
Petitioners argue that the court cannot enjoin the construction of the drug rehabilitation center because the decision
of the court came only after the construction of the center was completed and, based on jurisprudence, there can be
no injunction unction of events that have already transpired.
15
Private respondent, on the other hand, counters that the operation of the center is a continuing act which would
clearly cause injury to private respondent, its clients, and residents of the subdivision, and thus, a proper subject of
injunction.
16
Equity should move in to granting of the injunctive relief if persistent repetition of the wrong is threatened.
In light of Sec. 31 of P.D. 957, as amended, declaring the open space for parks, playgrounds and recreational area
as non-buildable, it appears indubitable that the construction and operation of a drug rehabilitation center on the
land in question is a continuing violation of the law and thus should be enjoined.
Furthermore, the factual background of this case warrants that this Court rule against petitioners on this issue. We
agree with and affirm the Courts finding that petitioners committed acts mocking the judicial system.
18
. . . When a writ of preliminary injunction was sought for by the appellee (private respondent) to
enjoin the appellants [petitioners herein] from further continuing with the construction of the
appellants the said center, the latter resisted and took refuge under the provisions of Presidential
Decree No. 1818 (which prohibits writs of preliminary injunction) to continue with the construction of
the building. Yet, the appellants also presented "City Council Resolution No. 227 which allegedly
repealed the previous Resolution authorizing the City Government to construct a Drug Rehabilitation
Center on the donated property, by "changing the purpose and usage of the Drug Rehabilitation
Center to Sports Development and Youth Center to make it conform to the Sports Complex Project
therein". Under this Resolution No. 227, the appellants claimed that they have abandoned all plans
for the construction of the Drug Rehabilitation Nonetheless, when judgment was finally rendered on
February 15, 1989, the appellants were quick to state that they have not after all abandoned their
plans for the center as they have in fact inaugurated the same April 15, 1989. In plain and simple
terms, this act is a mockery of our judicial system perpetrated by the appellants. For them to argue
that the court deal on their Drug Rehabilitation Center is not only preposterous but also ridiculous.
It is interesting to observe that under the appealed decision the appellants and their officers,
employees and all other persons acting on their behalf were perpetually enjoined to cease and
desist from constructing a Drug Rehabilitation Center on the donated property. Under Section 4 of
Rule 39 of the Rules of Court, it is provided that:
Sec. 4 A judgment in an action for injunction shall not be stayed after its rendition and before an
appeal is taken or during the tendency of an appeal .
Accordingly, a judgment restraining a party from doing a certain act is enforceable and shall remain
in full force and effect appeal. In the case at bar, the cease and desist order therefore still stands.
Appellants persistence and continued construction and, subsequent, operation of the Drug
Rehabilitation Center violate the express terms of the writ of injunction lawfully issued by the lower
court.
This Court finds no cogent reason to reverse the above mentioned findings of the respondent court. The allegation
of the petitioners that the construction of the center was finished before the judgment of the trial court was rendered
deserves scant consideration because it is self-serving and is completely unsupported by other evidence.
The fact remains that the trial court rendered judgment enjoining the construction of the drug rehabilitation center,
revoking the donation and ordering the return of the donated land. In spite of such injunction, petitioners publicly
flaunted their disregard thereof with the subsequent inauguration of the center on August 15, 1989. The operation o
the center, after inauguration, is even more censurable
Fifth Issue: Revocation of a Mandatory Donation Because of Non-
compliance With an Illegal Condition
The private respondent contends that the building of said drug rehabilitation center is violative of the Amended Deed
of Donation. Therefore, under Article 764 of the New Civil Code and stipulation no. 8 of the amended deed, private
respondent is empowered to revoke the donation when the donee has failed to comply with any of the conditions
imposed in the deed.
We disagree. Article 1412 of the Civil Code which provides that:
If the act in which the unlawful or forbidden cause consists does not constitute a criminal offense, the
following rules shall be observed:
(1) When the fault is on the part of both contracting parties, neither may recover what he has given
by virtue of the contract, or demand the performance of the others undertaking;
comes into play here. Both petitioners and private respondents are in violation of P.D. 957 as amended, for
donating and accepting a donation of open space less than that required by law, and for agreeing to build
and operate a sports complex on the non-buildable open space so donated; and petitioners, for constructing
a drug rehabilitation center on the same non-buildable area.
Moreover, since the condition to construct a sport complex on the donated land has previously been shown to be
contrary to law, therefore, stipulation no. 8 of the amended deed cannot be implemented because (1)
no validstipulation of the amended deed had been breached, and (2) it is highly improbable that the decree would
have allowed the return of the donated land for open space under any circumstance, considering the non-alienable
character of such open space, in the light of the second Whereas clause of P.D. 1216 which declares that . . . such
open spaces, roads, alleys and sidewalks in residential subdivisions are for public use and are, therefore, beyond
the commerce of men.
Further, as a matter of public policy, private respondent cannot be allowed to evade its statutory obligation to donate
the required open space through the expediency of invoking petitioners breach of the aforesaid condition. It is a
familiar principle that the courts will not aid either party to enforce an illegal contract, but will leave them both where
they find them. Neither party can recover damages from the other arising from the act contrary to law, or plead the
same as a cause of action or as a defense. Each must bear the consequences of his own acts.
19
There is therefore no legal basis whatsoever to revoke the donation of the subject open space and to return the
donated land to private respondent. The donated land should remain with the donee as the law clearly intended
such open spaces to be perpetually part of the public domain, non-alienable and permanently devoted to public use
as such parks, playgrounds or recreation areas.
Removal/Demolition of Drug Rehabilitation Center
Inasmuch as the construction and operation of the drug rehabilitation center has been established to law, the said
center should be removed or demolished. At this juncture, we hasten to add that this Court is and has always been
four-square behind the governments efforts to eradicate the drug scourge in this country. But the end never justifies
the means, and however laudable the purpose of the construction in question, this Court cannot and will not
countenance an outright and continuing violation of the laws of the land, especially when committed by public
officials.
In theory, the cost of such demolition, and the reimbursement of the public funds expended in the construction
thereof, should be borne by the officials of the City Angeles who ordered and directed such construction. This Court
has time and again ruled that public officials are not immune from damages in their personal capacities arising from
acts done in bad faith. Otherwise stated, a public official may be liable in his personal capacity for whatever damage
he may have caused by his act done with malice and in bad faith or beyond the scope of his authority or
jurisdiction.
20
In the instant case, the public officials concerned deliberately violated the law and persisted in their
violations, going so far as attempting to deceive the courts by their pretended change of purpose and usage for the enter,
and "making a mockery of the judicial system". Indisputably, said public officials acted beyond the scope of their authority
and jurisdiction and with evident bad faith. However, as noted by the trial court
21
, the petitioners mayor and members of
the Sangguniang Panlungsod of Angeles City were sued only in their official capacities, hence, they could not be held
personally liable without first giving them their day in court. Prevailing jurisprudence
22
holding that public officials are
personally liable for damages arising from illegal acts done in bad faith are premised on said officials having been sued
both in their official and personal capacities.
After due consideration of the circumstances, we believe that the fairest and most equitable solution is to have the
City of Angeles, donee of the subject open space and, ostensibly, the main beneficiary of the construction and
operation of the proposed drug rehabilitation center, undertake the demolition and removal of said center, and if
feasible, recover the cost thereof from the city officials concerned.
WHEREFORE, the assailed Decision of the Court of appeals hereby MODIFIED as follows:
(1) Petitioners are hereby ENJOINED perpetually from operating the drug rehabilitation center or any other such
facility on the donated open space.
(2) Petitioner City of Angeles is ORDERED to undertake and removal of said drug rehabilitation center within a
period of three (3) months from finality of this Decision, and thereafter, to devote public use as a park, playground or
other recreational use.
(3) The Amended Deed of Donation dated November 26, 1984 is hereby declared valid and subsisting, except that
the stipulations or conditions therein concerning the construction of the Sports Center or Complex are hereby
declared void and as if not imposed, and therefore of no force and effect.
No Costs.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
Footnotes
1 Rollo, pp. 42-50.
2 Twelfth Division, J. Bonifacio A. Cacdac, Jr., ponente, and JJ. Reynato S. Puno (chairman) and Salome A.
Montoya, concuring.
3 Rollo, pp. 93-106.
4 Judge Carlos D. Rusita, presiding.
5 Rollo, pp. 54-62.
6 Section 10 of the said Subdivision Ordinance of the Municipality of Angeles reads:
Open Spaces Decided to Public Use-Subdivisions in the Municipality containing an area of at least one (1)
hectare shall be provided with suitable sites known as open spaces for parks, playgrounds, playlots and/or
other areas to be dedicated to public use which areas shall comprise at least five (5) percent of the gross
area of the subdivision. Open spaces so dedicated for public use shall be consolidated as much as possible
and not broken into small odd-shaped parcels of land, and shall be conveniently located for maximum
utility.Should the subdivision so elect, he may turn over and transfer free of charge the title to said open
space to the Municipal Government after which the government shall assume the responsibility of
maintaining the said areas. Provided, that the government reserves the right to reject the transfer of any
area specified in this section if in its opinion the site has not been developed in such manner as to make the
same suitable for the use it in intended. (Emphasis supplied)
7 Court of Appeals Decision, p. 5; rollo, p. 46.
8 Rollo, pp. 20-21.
9 Published in the Official Gazette (Vol. 74, No. 2 January 9, 1978, pp. 257-259).
10 The Court of Appeals said:
. . . The obligation to donate however, does not cover the entire open space but only that 3.5% to 9% of the
open space which is exclusively reserved to parks and playgrounds. . . . (Rollo, p. 48).
11 Art. 727, Civil Code.
12 Palanca vs. City of Manila, 41 Phil. 125, 130, October 27, 1920 and Republic Flour Mills, Inc. vs.
Commissioner of Customs, 39 SCRA 268, 278, 274, May 31, 1971.
13 Vide par. 6 of Amended Deed of Donation.
14 The 51 donated lots ranged in size from 287 to 640 square meters with the average size of a family lot
being 463.5 square meters. The average size or area of a family lot should be at least 500 square meters to
have a density of 20 family lots or below per gross hectare. The subdivision in question obviously falls under
the medium-density or economic housing category.
15 Aragones vs. Subido, 25 SCRA 95, 101, September 23, 1968.
16 Dayrit vs. De Los Santos, 18 Phil. 275, 280, January 11, 1911.
17 Rustia vs. Franco, 41 Phil. 280, 283-285, December 13, 1920.
18 CA Decision, pp. 5-6; rollo, pp. 46-47.
19 Teja vs. Intermediate Appellate Court, 148 SCRA 347, March 10, 1987.
20 See for instance, Vidad vs. RTC of Negros Oriental, Br. 42, 227, 271, October 18, 1993; M.H. Wylie vs
Rarang, 209 SCRA 357, May 28, 1992; Orocio Commission On Audit, 213 SCRA 109, August 31, 1992.
21 RTC Decision, p. 7; records, p. 113.
22 Aside from the cases cited in footnote no. 20, consider also Rama vs. Court of Appeals, 148 SCRA 496
March 16, 1987, and San Luis vs. Court of Appeals, 174 SCRA 258, June 26, 1989.