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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
latter's 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
Asuncion's 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 latter's 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 Attorney's
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,
respondent's 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
Respondent's 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. 391394, 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
respondent's 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 onefourth 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 complainant's 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 complainant's 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 judge's 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. (Halleck's 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. (Ely's 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 respondent's 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 complainant's 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 attorneyat-law to the extent of putting up a signboard with his name and the words "Attorneyat 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. Tan's 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 respondent's unqualified exoneration.
BARREDO, J., concurring and dissenting:
I vote with Justice Aquino.

Separate Opinions
AQUINO, J., concurring and dissenting:
I vote for respondent's unqualified exoneration.
BARREDO, J., concurring and dissenting:
I vote with Justice Aquino.

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 King's 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
King's 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 mayor and 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 Wharton's 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. Appellant's 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 enemy's 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 notmalum in se or malum 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.
1aw ph!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.

G.R. No. 122156 February 3, 1997


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

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

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

Pertinent provisions of the bidding rules prepared by respondent GSIS state


I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below by October 23,
1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the
GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila
Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than
October 23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/OGCC (Office of the Government Corporate Counsel)
are obtained. 3
Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution
of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered by Renong Berhad. 4 In a subsequent letter dated
10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad . .
. 5 which respondent GSIS refused to accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On
18 October 1995 the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to
it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique
M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits
that the Manila Hotel has been identified with the Filipino nation and has practically become a
historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud
legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony. 6 Petitioner also argues that
since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is
owned by respondent GSIS, a government-owned and controlled corporation, the hotel business of
respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy.
Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered by the
term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
business also unquestionably part of the national economy petitioner should be preferred after it has
matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share. 8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing provision and
requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be done." 9

Second, granting that this provision is self-executing, Manila Hotel does not fall under the term
national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum
and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and
second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner
speaks of the guests who have slept in the hotel and the events that have transpired therein which
make the hotel historic, these alone do not make the hotel fall under the patrimonyof 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 selfexecuting. But a provision which is complete in itself and becomes operative without the aid of

supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if
the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so
that they can be determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action. 13

As against constitutions of the past, modern constitutions have been generally drafted upon a
different principle and have often become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it
is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing If the constitutional
provisions are treated as requiring legislation instead of self-executing, the legislature would have
the power to ignore and practically nullify the mandate of the fundamental law. 14 This can be
cataclysmic. That is why the prevailing view is, as it has always been, that

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


non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed implementing
statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not selfexecuting, 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 the setting up of other financial
structures, et cetera (emphasis supplied by respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear
that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not

precluded from enacting other 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 selfexecuting 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
the 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 the legislations must be based. Res ipsa loquitur.

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

As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains
The patrimony of the Nation that should be conserved and developed refers not only
to out rich natural resources but also to the cultural heritage of out race. It also refers
to our intelligence in arts, sciences and letters. Therefore, we should develop not
only our lands, forests, mines and other natural resources but also the mental ability
or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the
Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as
the Constitution could have very well used the term natural resources, but also to the cultural heritage of
the Filipinos.

Manila Hotel has become a landmark a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly
Filipino, Formerly a concourse for the elite, it has since then become the venue of various significant
events which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was
the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as
the Official Guest House of the Philippine Government. it plays host to dignitaries and official visitors
who are accorded the traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of
a City. 37During World War II the hotel was converted by the Japanese Military Administration into a
military headquarters. When the American forces returned to recapture Manila the hotel was selected by
the Japanese together with Intramuros as the two (2) places fro their final stand. Thereafter, in the 1950's
and 1960's, the hotel became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a
failedcoup 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 theFilipino 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.
xxx xxx xxx
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
xxx xxx xxx

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 fullycontrolled 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 GlVE 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 . . . This provision was
never found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate the pampering
and preferential treatment to Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would be counter productive 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" end 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 [if] for any reason the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of
price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to award the block of shares
immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In
fact, we cannot conceive of a stronger reason than the constitutional injunction itself.

In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match
the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go
to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of
the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the
bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are understood to be always open to public scrutiny.
These are given factors which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its
agencies or instrumentalities is presumed to know his rights and obligations under the Constitution
and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case before us, while petitioner was
already preferred at the inception of the bidding because of the constitutional mandate, petitioner
had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality
then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of
the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the
latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino
group willing to match the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of
the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable.
Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of
shares of MHC and to execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the Constitution as well.
The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided
in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.

The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution
not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be
enforced. This Court as the ultimate guardian of the Constitution will never shun, under any
reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to
defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much
less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes
more business opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this matter could have not
been more appropriately articulated by Chief Justice Narvasa
As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and feasibility
of legislation economic in nature, the Supreme Court has not been spared criticism
for decisions perceived as obstacles to economic progress and development . . . in
connection with a temporary injunction issued by the Court's First Division against
the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that 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 nonmaterial 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 nationstate 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 nation's soul for
some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from
a qualified Filipino, can be gained by the Filipinos Manila Hotel and all that it stands for is sold
to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted
to a foreign entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is
the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And
this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly
watchman of the nation, will continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner
MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances and to do
such other acts and deeds as may be necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring:


I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos. 1

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

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race. 4
There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others. 5
It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment" 6 To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances". 7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must


refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.

VITUG, J., concurring:


I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos" 1 is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given
by the State, by favoring it over a foreign national corporation.

Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC," 2 so that petitioner bid for more shares, it would be
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder,
that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by
allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of

stocks. 3That, to me, is what "preference to qualified Filipinos" means in the context of this case by
favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.

This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls." 5 This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De
la Fuente, 6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A.
No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in
the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo, 7the preference
granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference
immediately arises." 8

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

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

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

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

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


TORRES, JR., J., separate opinion:

Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain
The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:
xxx xxx xxx
MR. NOLLEDO. The Amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).
MR. MONSOD. We also wanted to add, as
Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:

MR. NOLLEDO. In the grant of rights, privileges and


concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.
MR. FOZ. In connection with that amendment, if a
foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some
aspects than the Filipino enterprise, will the Filipino
still be preferred:?
MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,
Records of the Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said
The nationalistic tendency is manifested in various provisions of the Constitution. . . .
It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different lights.

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

PUNO, J., dissenting:


This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel" 1 The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2
The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First Pass the prequalification process;
Second Submit the highest bid on a price per share basis for the Block of Shares;
Third Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION

The Winning Bidder/Strategic Partner will be expected to provide


management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel
industry; or
b. Significant equity ownership (i.e. board
representation) in another hotel company; or
c. Overall management and marketing expertise to
successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide
access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration
Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:
a. Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC
Privatization
b. Confidential Information Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to the Prequalification and
Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE

A prequalification and bidding conference will be held at The Manila


Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with
the assistance of the TEC based on the Information
Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the
evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the
results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the
criteria set forth below:
a. Business management expertise,
track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the
proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem
appropriate.
6. The parties that prequalified in the first MHC public bidding ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton may participate in
the Public Bidding without having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED BIDDERS

1. A notice of prequalification results containing the shortlist of


Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by
member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to
participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred
Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is ThirtySix Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the
minimum required will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."

F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.
If the Qualified Bidder is a Consortium/Joint Venture, each member of
the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft
payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable
banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less
than the required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic
Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.

e. The Bid Security of the Qualified Bidder will be returned


immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:
i. Execute the Stock Purchase and Sale Agreement
with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price
not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding
to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security

5. The two sealed envelopes marked "OFFICIAL BID" and


"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at
3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed
period; or
b. There is only one (1) bid that is submitted and
acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to

purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute
with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.
2. In the event that the Highest Bidder chooses a Management
Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating
profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international
marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for
the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The
Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that

have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.
2. The order of priority among the interested Qualified Bidders will be
in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contract with
GSIS/MHC not later than October 23, 1995; and
b. Requisite approvals from the GSIS/MHC and
COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the
Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.
2. All payments should be made in the form of a Manager's Check or
unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all
applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the
prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.

4. The GSIS sells only whatever rights, interest and participation it


has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders,
except the Bid Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public
Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding. 3
The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on
the "National Economy and Patrimony" which provides:

xxx xxx xxx


In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a selfexecuting provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the
controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;

(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government. 5 As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action. 6 Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.

To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.


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

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

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

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

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by

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

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

The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles
and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving

our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day
Romulo,31 the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular
Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively
used by American and Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during
the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and
lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served
foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous
international film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.

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

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

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

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:

xxx xxx xxx


THE PRESIDENT. What is the suggestion of
Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO
QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say, "PREFERENCE TO
QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the
intention of the proponents. The committee has
accepted the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited

from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policymakers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.

Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:


I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add
1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights .
. . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries in the
guise of reverse comity or worse, unabashed retaliation to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the

global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.

Separate Opinions
PADILLA, J., concurring:
I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos. 1
Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air. 2study of the 1935 Constitution, where the concept of "national
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only
their natural resources of the country but practically everything that belongs to the Filipino people, the
tangible and the material as well as the intangible and the spiritual assets and possessions of the people.
It is to be noted that the framers did not stop with conservation. They knew that conservation alone does
not spell progress; and that this may be achieved only through development as a correlative factor to
assure to the people not only the exclusive ownership, but also the exclusive benefits of their national
patrimony). 3

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race. 4
There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.

This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others. 5
It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment" 6 To quote further: "Let not our children
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances". 7

Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must


refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the
national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal
the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the
qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos" 1 is self-executory. The provision verily does not need, although it can obviously be
amplified or regulated by, an enabling law or a set of rules.

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

Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given
by the State, by favoring it over a foreign national corporation.

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

This was the meaning given in Co Chiong v. Cuaderno 4 to a 1947 statute giving "preference to Filipino
citizens in the lease of public market stalls." 5 This Court upheld the cancellation of existing leases
covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls
to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De
la Fuente, 6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A.
No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in
the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo, 7the preference
granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there were available other stalls as good as those
occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between
Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference
immediately arises." 8

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

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

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

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

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


TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain
The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:
xxx xxx xxx
MR. NOLLEDO. The Amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).
MR. MONSOD. We also wanted to add, as
Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
MR. NOLLEDO. In the grant of rights, privileges and
concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.
MR. FOZ. In connection with that amendment, if a
foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some
aspects than the Filipino enterprise, will the Filipino
still be preferred:?

MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,


Records of the Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said
The nationalistic tendency is manifested in various provisions of the Constitution. . . .
It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profits subverts the cherished historical
values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.

PUNO, J., dissenting:


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

Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel" 1 The proposal was approved by respondent Committee on Privatization.
In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2
The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First Pass the prequalification process;
Second Submit the highest bid on a price per share basis for the Block of Shares;
Third Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide
management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel
industry; or
b. Significant equity ownership (i.e. board
representation) in another hotel company; or

c. Overall management and marketing expertise to


successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide
access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration
Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:
a. Guidelines and Procedures: Second
Prequalification and Public Bidding of the MHC
Privatization
b. Confidential Information Memorandum: The Manila
Hotel Corporation
c. Letter of Invitation. to the Prequalification and
Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The Manila
Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.

F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with
the assistance of the TEC based on the Information
Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the
evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the
results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the
criteria set forth below:
a. Business management expertise,
track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the
proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem
appropriate.
6. The parties that prequalified in the first MHC public bidding ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton may participate in
the Public Bidding without having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED BIDDERS
1. A notice of prequalification results containing the shortlist of
Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by
member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to
participate in the Public Bidding.

B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred
Thousand (15,300,000) shares of stock representing Thirty Percent to
Fifty-One Percent (30%-51%) of the issued and outstanding shares of
MHC, will be offered in the Public Bidding by the GSIS. The Qualified
Bidders will have the Option of determining the number of shares
within the range to bid for. The range is intended to attract bidders
with different preferences and objectives for the operation and
management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum bid
required on a price per share basis for the Block of Shares is ThirtySix Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the
minimum required will not considered.
D. TRANSFER COSTS
xxx xxx xxx
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.

If the Qualified Bidder is a Consortium/Joint Venture, each member of


the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft
payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable
banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less
than the required amount.
c. If the Bid Security is in the form of a manager's check or
unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic
Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned
immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement


with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price
not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding
to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
4. The Qualified Bidder should submit the following documents
in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID" and
"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at
3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed
period; or
b. There is only one (1) bid that is submitted and
acceptable to the PBAC.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute
with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.

2. In the event that the Highest Bidder chooses a Management


Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross
revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating
profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international
marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for
the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The
Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.
2. The order of priority among the interested Qualified Bidders will be
in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contract with
GSIS/MHC not later than October 23, 1995; and

b. Requisite approvals from the GSIS/MHC and


COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the
Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.
2. All payments should be made in the form of a Manager's Check or
unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all
applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the
prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.
4. The GSIS sells only whatever rights, interest and participation it
has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders,
except the Bid Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public
Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding. 3

The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution 4 on
the "National Economy and Patrimony" which provides:

xxx xxx xxx


In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a selfexecuting provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the
controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;
(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government. 5 As a rule, its provisions are deemed self-executing and can be enforced without further
legislative action. 6 Some of its provisions, however, can be implemented only through appropriate laws
enacted by the Legislature, hence not self-executing.

To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.


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

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

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

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

Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national jurisdiction and in accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of investments in the
country 25 to Filipino citizens or to corporations sixty per
cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws
that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national

economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.

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

The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles
and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the
constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving
our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day
Romulo,31 the hotel first opened on July 4, 1912 as a first-class hotel built by the American Insular
Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous
materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively
used by American and Caucasian travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during
the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and
lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the
Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served
foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous
international film and sports celebrities were housed in the Hotel. It was also the situs of international
conventions and conferences. In the local scene, it was the venue of historic meetings, parties and
conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent
and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind.

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

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

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

The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:
xxx xxx xxx
THE PRESIDENT. What is the suggestion of
Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO
QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,

qualifications on the setting up of other financial


structures, et cetera.
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say, "PREFERENCE TO
QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the
intention of the proponents. The committee has
accepted the amendment.
xxx xxx xxx
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policymakers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right

primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First

policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting:


I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add
1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights .
. . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries in the
guise of reverse comity or worse, unabashed retaliation to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.
Footnotes

1 See Sec. 10, par. 2, Art. XII, 1987 Constitution


2 Par I. Introduction and Highlights; Guidelines and Procedures: Second
Prequailifications 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. 56; 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 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. O'Malley, 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 selfreliance.
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 indegenous learning, independent, and outof-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. 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 Webster's 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 Ramaswani 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 President 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 Choonvan and Prem Tinsulanonda of Thailand,
Prime Minister Benazir Bhutto of Pakistan, President Vaclav Havel of Czech
Republic, Gen. Norman Schwarzcopf of U.S.A, President Ernesto Perez Balladares
of Panama, Prime Minister Adolfas Slezevicius of Lithuania, President Akbar
Hashemi Rafsanjani of Iran, 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 of 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.
PADILLA, J., concurring:
1 Article XII, Section 10, par. 2, 1987 Constitution.
2 Padilla, The 1987 Constitution of the Republic of the Philippines, Volume III, p. 89.

3 Sinco, Philippine Political Law, 11th ed, p. 112.


4 Nolledo, The New Constitution of the Philippines, Announced, 1990 ed., p. 72.
5 Memorandum for Petitioner, p. 1.
6 Laurel, Proceedings of the Philippine Constitutional Convention (1934-1935), p.
507.
7 Id., p. 562.
VITUG, J., concurring:
1 Second par. Section 10, Art. XII, 1987 Constitution.
MENDOZA, J., concurring:
1 Art. XII, 10, second paragraph.
2 GUIDELINES AND PROCEDURES: SECOND PREQUALIFICATION AND
PUBLIC BIDDING OF THE MHC PRIVATIZATION (hereafter referred to as
GUIDELINES), Part. V, par. H(4)..
3 Id.
4 83 Phil. 242 (1949).
5 R.A. No. 37, 1.
6 87 Phil. 343 (1950).
7 104 Phil. 302 (1958).
8 Id, at 309.
9 For an excellent analysis of American cases on reverse discrimination in these
areas, see GERALD GUNTHER, CONSTITUTIONAL LAW 780-819 (1991).
10 Art. II, 19: "The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos." (Emphasis added)
11 See Villegas v. Hiu Chiung Tsai Pao Ho, 86 SCRA 270 (1978) (invalidating an
ordinance imposing a flat fee of P500 on aliens for the privilege of earning a
livelihood).
12 Petitioner passed the criteria set forth in the GUIDELINES, Part IV, par. F(4), of
the GSIS, relating to the following:
a. Business management expertise, tract record, and experience

b. Financial capability
c. Feasibility and acceptability of the proposed strategic plan for the
Manila Hotel.
13 GUIDELINES, Part V, par. (1)(3), in relation to Part. I.
14 Id., Part V, par. V (1).
PUNO, J., dissenting:
1 Introduction and Highlights, Guidelines and Procedures: Second Prequalification
and Public Bidding of the MHC Privatization, Annex "A" to Petitioner's Consolidated
Reply to Comments of Respondents,Rollo, p. 142.
2 The four bidders who previously prequalified for the first bidding, namely, ITT
Sheraton, Marriot International, Inc., Renaissance Hotel International, Inc., and the
consortium of RCBC and the Ritz Carlton, were deemed prequalified for the second
bidding.
3 Annex "A" to the Consolidated Reply to Comments of Respondents, Rollo, pp. 140155.
4 Former Chief Justice Enrique Fernando and Commissioner Joaquin Bernas were
invited by the Court as amicus curiae to shed light on its meaning.
5 Lopez v. de los Reyes, 55 Phil. 170, 190 [1930].
6 16 Am Jur 2d, Constitutional Law, Sec. 139 p. 510 [1979 ed. ]; 6 R.C.L. Sec. 52 p.
57 [1915]; see also Willis v. St. Paul Sanitation Co. 48 Minn. 140, 50 N.W. 1110, 31
A.J.R. 626, 16 L.R.A. 281 [1892]; State ex rel. Schneider v. Kennedy, 587 P. 2d 844,
225 Kan [1978].
7 Willis v. St. Paul Sanitation, supra, at 1110-1111; see also Cooley, A Treatise on
Constitutional Limitations 167, vol. 1 [1927].
8 16 C.J.S., Constitutional Law, Sec. 48, p. 100.
9 Cooley, supra, at 171; 6 R.C.L. Sec. 53, pp. 57-58; Brice v. McDow, 116 S.C. 324,
108 S.E. 84, 87 [1921]; see also Gonzales, Philippine Constitutional Law p. 26
[1969].
10 16 C.J.S., Constitutional Law, Sec. 48, p. 101.
11 Way v. Barney, 116 Minn. 285, 133 N.W. 801, 804 38 L.R.A. (N.S.) 648, Ann.
Cas. 1913 A, 719 [1911]; Brice v. McDow, supra, at 87; Morgan v. Board of
Supervisors, 67 Ariz. 133, 192 P. 2d 236, 241 [1948]; Gonzales, supra..
12 Ninth Decennial Digest Part I, Constitutional Law, (Key No. 28), p. 1638.

13 Article III, Section 2; see Webb v. de Leon, 247 SCRA 652 [1995]; People v.
Saycon, 236 SCRA 325 (1994]; Allado v. Diokno, 232 SCRA 192 (1994]; Burgos v.
Chief of Staff, 133 SCRA 800 [1984]; Yee Sue Kuy v. Almeda, 70 Phil. 141 [1940];
Pasion Vda. de Garcia v. Locsin, 65 Phil. 689 [1938]; and a host of other cases.
14 Article III, Section 12, pars. 1 to 3; People v. Alicando, 251 SCRA 293 [1995];
People v. Bandula 232 SCRA 566 [1994]; People v. Nito 228 SCRA 442 [1993];
People v. Duero, 104 SCRA 379 [1981]; People v. Galit, 135 SCRA 465 [1985]; and
a host of other cases.
15 Article III, Section 14; People v. Digno, 250 SCRA 237 [1995]; People v. Godoy,
250 SCRA 676 [1995]; People v. Colcol 219 SCRA [1993]; Borja v. Mendoza, 77
SCRA 422 [1977]; People v. Dramayo, 42 SCRA 59 [1971]; and a host of other
cases.
16 Galman v. Pamaran, 138 SCRA 274 [1985]; Chavez v. Court of Appeals 24
SCRA 663 [1968]; People v. Otadura, 86 Phil. 244 [1950]; Bermudez v. Castillo, 64
Phil, 485 [1937]; and a host of other cases.
17 Harley v. Schuylkill County, 476 F. Supp, 191, 195-196 [1979]; Erdman v.
Mitchell, 207 Pa. St. 79, 56 Atl. 327, 99 A.S.R. 783 63 L.R.A. 534 [1903]; see Ninth
Decennial Digest Part I, Constitutional Law, (Key No. 28), pp. 1638-1639.
18 City of Chicago v. George F. Harding Collection, 217 N.E. 2d 381, 383, 70 Ill.
App. 2d 254 [1966]; People v. Buellton Dev. Co., 136 P. 2d 793, 796, 58 Cal. App. 2d
178 [1943]; Bordy v. State, 7 N.W. 2d 632, 635, 142 Neb. 714 [1943]; Cohen v. City
of Chicago, 36 N.E. 2d 220, 224, 377 Ill 221 [1941].
19 16 Am Jur 2d, Constitutional Law, Sec. 143, p. 514; 16 C.J.S. Constitutional Law,
Sec. 48, p. 100; 6 R.C.L. Sec. 54, p. 59; see also State ex rel. Noe v. Knop La. App.
190 So. 135, 142 [1939]; State ex rel. Walker v. Board of Comm'rs. for Educational
Lands and Funds, 3 N.W. 2d 196, 200, 141 Neb. 172 [1942]; Maddox v. Hunt, 83 P.
2d 553, 556, 83 Okl. 465 [1938].
20 Article II, Sections 11, 12 and 13 (Basco v. Phil. Amusements and Gaming
Corporation, 197 SCRA 52, 68 [1991]); Sections 5, 12, 13 and 17 (Kilosbayan, Inc. v.
Morato, 246 SCRA 540, 564 [1995]).
21 Article XIII, Section 13 (Basco, supra).
22 Article XIV, Section 2 (Basco, supra).
23 Kilosbayan v. Morato, supra, at 564.
24 Basco v. Phil. Amusements and Gaming Corporation, supra, at 68.
25 Congress had previously passed the Retail Trade Act (R.A. 1180); the Private
Security Agency Act (R.A. 5487; the law on engaging in the rice and corn industry
(R.A. 3018, P.D. 194), etc.
26 Or such higher percentage as Congress may prescribe.

27 Article XIV, section 3 of the 1973 Constitution reads:


"Sec. 3. The Batasang Pambansa shall, upon recommendation of the National
Economic and Development Authority, reserve to citizens of the Philippines or to
corporations or associations wholly owned by such citizens, certain traditional areas
of investments when the national interest so dictates,"
28 101 Phil. 1155 [1957].
29 See Bernas, The Constitution of the Republic of the Philippines 450, vol. II [1988].
The Lao Ichongcase upheld the Filipinization of the retail trade and implied that
particular areas of business may be Filipinized without doing violence to the equal
protection clause of the Constitution.
30 Nolledo The New Constitution of the Philippines, Annotated, 1990 ed., p. 72. The
word "patrimony" first appeared in the preamble of the 1935 Constitution and was
understood to cover everything that belongs to the Filipino people, the tangible and
the material as well as the intangible and the spiritual assets and possessions of the
nation (Sinco, Philippine Political Law, Principles and Concepts [1962 ed.], p. 112;
Speech of Delegate of Conrado Benitez defending the draft preamble of the 1935
Constitution in Laurel, Proceedings of the Constitutional Convention, vol. III, p. 325
[1966]).
31 Commissioned by the Manila Hotel Corporation for the Diamond Jubilee
celebration of the Hotel in 1987; see The Manila Hotel: The Heart and Memory of a
City.any
32 Section 7 of R.A. 4846 provides:
Sec. 7. In the designation of a particular cultural property as a .national cultural
treasure," the following procedure shall be observed:
(a) Before the actual designation, the owner, if the property is privately owned, shall
be notified at least fifteen days prior to the intended designation, and he shall be
invited to attend the deliberation and given a chance to be heard. Failure on the part
of the owner to attend the deliberation shall not bar the panel to render its decision.
Decision shall be given by the panel within a week after its deliberation. In the event
that the owner desires to seek reconsideration of the designation made by the panel,
he may do so within thirty days from the date that the decision has been rendered. If
no request for reconsideration is filed after this period, the designation is then
considered final and executory. Any request for reconsideration filed within thirty
days and subsequently again denied by the panel, may be further appealed to
another panel chairmanned by the Secretary of Education with two experts as
members appointed by the Secretary of Education. Their decision shall final and
binding.
(b) Within each kind or class of objects, only the rare and unique objects may be
designated as "National Cultural Treasures." The remainder, if any shall be treated
as cultural property.
xxx xxx xxx

33 P.D. 1146, Sec, 5; P.D, 1146, known as "The Revised Government Service
Insurance Act of 1977" amended Commonwealth Act No. 186, the "Government
Service Insurance Act" of 1936.
34 Beronilla v. Government Service Insurance System, 36 SCRA 44, 53 [1970];
Social Security System Employees Association v. Soriano, 7 SCRA 1016, 1023
[1963].
35 Id., secs. 28 and 29.
36 Id., Sec. 30.
37 Constitution, Article IX (B), section 2 (1).
38 Constitution, Article IX (D), section 2 (1).
39 It is meet to note that our laws do not debar foreigners from engaging in the hotel
business. Republic Act No. 7042, entitled the "Foreign Investments Act of 1991" was
enacted by Congress to "attract, promote and welcome . . . foreign investments . . . in
activities which significantly contribute to national industrialization and socioeconomic development to the extent that foreign investment is allowed by the
Constitution and relevant laws." The law contains a list, called the Negative List
specifying areas of economic activity where foreign participation is limited or
prohibited. Areas of economic activity not included in the Negative List are open to
foreign participation up to one hundred per cent (Sees. 6 and 7). Foreigners now own
and run a great number of our five-star hotels.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 161872

April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,


vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17,
2003. Respondent Commission on Elections (COMELEC) refused to give due course to
petitioners Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision,
however, was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted
to include petitioner as they believed he had parties or movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioners Motion
for Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioners Motion
for Reconsideration and on similar motions filed by other aspirants for national elective positions,
denied the same under the aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The
COMELEC declared petitioner and thirty-five (35) others nuisance candidates who could not wage a
nationwide campaign and/or are not nominated by a political party or are not supported by a registered
political party with a national constituency. Commissioner Sadain maintained his vote for petitioner. By
then, Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly
rendered in violation of his right to "equal access to opportunities for public service" under Section 26,
Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a
nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the
COMELEC indirectly amended the constitutional provisions on the electoral process and limited the
power of the sovereign people to choose their leaders. The COMELEC supposedly erred in disqualifying
him since he is the most qualified among all the presidential candidates, i.e., he possesses all the
constitutional and legal qualifications for the office of the president, he is capable of waging a national
campaign since he has numerous national organizations under his leadership, he also has the capacity to
wage an international campaign since he has practiced law in other countries, and he has a platform of
government. Petitioner likewise attacks the validity of the form for theCertificate of Candidacy prepared
by the COMELEC. Petitioner claims that the form does not provide clear and reasonable guidelines for
determining the qualifications of candidates since it does not ask for the candidates bio-data and his
program of government.
First, the constitutional and legal dimensions involved.

Implicit in the petitioners invocation of the constitutional provision ensuring "equal access to
opportunities for public office" is the claim that there is a constitutional right to run for or hold public
office and, particularly in his case, to seek the presidency. There is none. What is recognized is merely a
privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither bestows
such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain
language of the provision which suggests such a thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of
Principles and State Policies." The provisions under the Article are generally considered not selfexecuting,2 and there is no plausible reason for according a different treatment to the "equal access"
provision. Like the rest of the policies enumerated in Article II, the provision does not contain any
judicially enforceable constitutional right but merely specifies a guideline for legislative or executive
action.3 The disregard of the provision does not give rise to any cause of action before the courts.4
An inquiry into the intent of the framers5 produces the same determination that the provision is not
self-executory. The original wording of the present Section 26, Article II had read, "The State shall
broaden opportunities to public office and prohibit public dynasties."6 Commissioner (now Chief Justice)
Hilario Davide, Jr. successfully brought forth an amendment that changed the word "broaden" to the
phrase "ensure equal access," and the substitution of the word "office" to "service." He explained his
proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be
equal access to the opportunity. If you broaden, it would necessarily mean that the government would
be mandated to create as many offices as are possible to accommodate as many people as are also
possible. That is the meaning of broadening opportunities to public service. So, in order that we should
not mandate the State to make the government the number one employer and to limit offices only to
what may be necessary and expedient yet offering equal opportunities to access to it, I change the
word "broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive measures that would
accommodate as many people as possible into public office. The approval of the "Davide amendment"
indicates the design of the framers to cast the provision as simply enunciatory of a desired policy
objective and not reflective of the imposition of a clear State burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of
positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its
effective means and reach are not properly defined. Broadly written, the myriad of claims that can be
subsumed under this rubric appear to be entirely open-ended.8 Words and phrases such as "equal
access," "opportunities," and "public service" are susceptible to countless interpretations owing to their
inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people an
operative but amorphous foundation from which innately unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office may be subjected to
limitations. Some valid limitations specifically on the privilege to seek elective office are found in the
provisions9 of the Omnibus Election Code on "Nuisance Candidates" and COMELEC Resolution No.
645210 dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio refuse
to give due course to or cancel aCertificate of Candidacy.

As long as the limitations apply to everybody equally without discrimination, however, the equal access
clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are
meant to be borne by any one who is minded to file a certificate of candidacy. In the case at bar, there is
no showing that any person is exempt from the limitations or the burdens which they create.
Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus
Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed
validity stands and has to be accorded due weight.
Clearly, therefore, petitioners reliance on the equal access clause in Section 26, Article II of the
Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the disqualification of candidates
who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling
interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the
State takes into account the practical considerations in conducting elections. Inevitably, the greater the
number of candidates, the greater the opportunities for logistical confusion, not to mention the
increased allocation of time and resources in preparation for the election. These practical difficulties
should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the
same time, remedial actions should be available to alleviate these logistical hardships, whenever
necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency,
but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held:
[T]here is surely an important state interest in requiring some preliminary showing of a significant
modicum of support before printing the name of a political organization and its candidates on the ballot
the interest, if no other, in avoiding confusion, deception and even frustration of the democratic
[process].11
The COMELEC itself recognized these practical considerations when it promulgated Resolution No.
6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 January
2004. As observed in the COMELECs Comment:
There is a need to limit the number of candidates especially in the case of candidates for national
positions because the election process becomes a mockery even if those who cannot clearly wage a
national campaign are allowed to run. Their names would have to be printed in the Certified List of
Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to the
government. For the official ballots in automated counting and canvassing of votes, an additional page
would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent
campaign enough to project the prospect of winning, no matter how slim.12
The preparation of ballots is but one aspect that would be affected by allowance of "nuisance
candidates" to run in the elections. Our election laws provide various entitlements for candidates for
public office, such as watchers in every polling place,13 watchers in the board of canvassers,14 or even
the receipt of electoral contributions.15Moreover, there are election rules and regulations the
formulations of which are dependent on the number of candidates in a given election.

Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling.
The organization of an election with bona fide candidates standing is onerous enough. To add into the
mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair
the electoral process. This is not to mention the candidacies which are palpably ridiculous so as to
constitute a one-note joke. The poll body would be bogged by irrelevant minutiae covering every step of
the electoral process, most probably posed at the instance of these nuisance candidates. It would be a
senseless sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible and orderly election, the State could exclude
nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on gossamer
wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State
interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance
candidacies that distract and detract from the larger purpose. The COMELEC is mandated by the
Constitution with the administration of elections16 and endowed with considerable latitude in adopting
means and methods that will ensure the promotion of free, orderly and honest elections.17 Moreover,
the Constitution guarantees that only bona fidecandidates for public office shall be free from any form
of harassment and discrimination.18 The determination ofbona fide candidates is governed by the
statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper application in the case of
the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it. The
assailed resolutions of the COMELEC do not direct the Court to the evidence which it considered in
determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at this
instance whether the COMELEC committed grave abuse of discretion in disqualifying petitioner, since
such a review would necessarily take into account the matters which the COMELEC considered in
arriving at its decisions.
Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his
credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not
properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor the Solicitor
General appended any document to their respective Comments.
The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of
the factual determination is not before this Court. Thus, the remand of this case for the reception of
further evidence is in order.
A word of caution is in order. What is at stake is petitioners aspiration and offer to serve in the
government. It deserves not a cursory treatment but a hearing which conforms to the requirements of
due process.
As to petitioners attacks on the validity of the form for the certificate of candidacy, suffice it to say that
the form strictly complies with Section 74 of the Omnibus Election Code. This provision specifically
enumerates what a certificate of candidacy should contain, with the required information tending to

show that the candidate possesses the minimum qualifications for the position aspired for as
established by the Constitution and other election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the
COMELEC for the reception of further evidence, to determine the question on whether petitioner Elly
Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus Election
Code.
The COMELEC is directed to hold and complete the reception of evidence and report its findings to this
Court with deliberate dispatch.
SO ORDERED.
Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Footnotes
*

On Official Leave.

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law.
2

See Basco v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 52, 68; Kilosbayan, Inc. v. Morato, G.R.
No. 118910, 246 SCRA 540, 564. "A provision which lays down a general principle, such as those found in
Art. II of the 1987 Constitution, is usually not self-executing." Manila Prince Hotel v. GSIS, G.R. No.
122156, 3 February 1997, 267 SCRA 408, 431. "Accordingly, [the Court has] held that the provisions in
Article II of our Constitution entitled "Declaration of Principles and State Policies" should generally be
construed as mere statements of principles of the State." Justice Puno, dissenting, Manila Prince Hotel v.
GSIS, Id. at 474.
3

See Kilosbayan Inc. v. Morato, G.R. No. 118910, 16 November 1995, 250 SCRA 130, 138. Manila Prince
Hotel v. GSIS, supra note 2 at 436.
4

Kilosbayan, Inc. v. Morato, supra note 2.

"A searching inquiry should be made to find out if the provision is intended as a present enactment,
complete in itself as a definitive law, or if it needs future legislation for completion and enforcement.
The inquiry demands a micro-analysis and the context of the provision in question." J. Puno, dissenting,
Manila Prince Hotel v. GSIS, supra note 2.
6

J. Bernas, The Intent of the 1986 Constitution Writers (1995), p. 148.

IV Records of Proceedings and Debates, 1986 Constitutional Commission 945.

See J. Feliciano, concurring, Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792, 815.

Section 69. Nuisance Candidates. The Commission may, motu proprio or upon a verified petition of
an interested party, refuse to give due course or cancel a certificate of candidacy if it is shown that said
certificate has been filed to put the election process in mockery or disrepute or to cause confusion
among the voters by the similarity of the names of the registered candidates or by other circumstances
or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for
which the certificate of candidacy has been filed and thus prevent a faithful determination of the true
will of the electorate.
10

SEC. 6. Motu Proprio Cases. The Commission may, at any time before the election, motu proprio
refuse to give due course to or cancel a certificate of candidacy of any candidate for the positions of
President, Vice-President, Senator and Party-list:
I. The grounds:
a. Candidates who, on the face of their certificate of candidacy, do not possess the constitutional and
legal qualifications of the office to which they aspire to be elected;
b. Candidate who, on the face of said certificate, filed their certificate of candidacy to put the election
process in mockery or disrepute;
c. Candidates whose certificate of candidacy could cause confusion among the voters by the similarity of
names and surnames with other candidates; and
d. Candidates who have no bona fide intention to run for the office for which the certificate of candidacy
had been filed or acts that clearly demonstrate the lack of such bona fide intention, such as:
d.1 Candidates who do not belong to or are not nominated by any registered political party of national
constituency;
d.2 Presidential, Vice-Presidential [candi-dates] who do not present running mates for vice-president,
respectively, nor senatorial candidates;
d.3 Candidates who do not have a platform of government and are not capable of waging a nationwide
campaign.
11

Jenness v. Fortson, 403 U.S. 431 (1971).

12

Rollo, pp. 469.

13

See Section 178, Omnibus Election Code, as amended.

14

See Section 239, Omnibus Election Code, as amended.

15

See Article XI, Omnibus Election Code, as amended.

16

See Section 2(1), Article IX, Constitution.

17

Sanchez v. COMELEC, 199 Phil. 617 (1987), citing Cauton v. COMELEC, L-25467, 27 April 1967, 19 SCRA
911.
18

See Section 9, Article IX, Constitution.

G.R. No. L-32432 September 11, 1970


MANUEL B. IMBONG, petitioner,
vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MILAFLOR, as
members thereof, respondents.
G.R. No. L-32443 September 11, 1970
IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE
VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL CONVENTION
ACT OF 1970. RAUL M. GONZALES,petitioner,
vs.
COMELEC, respondent.
Manuel B. Imbong in his own behalf.
Raul M. Gonzales in his own behalf.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L.
Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Vicente A. Torres
and Guillermo C. Nakar for respondents.
Lorenzo Taada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici curiae.

MAKASIAR, J.:
These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19 of R.A.
No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both members of the Bar,
taxpayers and interested in running as candidates for delegates to the Constitutional Convention.
Both impugn the constitutionality of R.A. No. 6132, claiming during the oral argument that it
prejudices their rights as such candidates. After the Solicitor General had filed answers in behalf the
respondents, hearings were held at which the petitioners and the amici curiae, namely Senator
Lorenzo Taada, Senator Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel Pelaez
argued orally.
It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant to
Art. XV of the Constitution, passed Resolution No. 2 which among others called for a Constitutional
Convention to propose constitutional amendments to be composed of two delegates from each
representative district who shall have the same qualifications as those of Congressmen, to be
elected on the second Tuesday of November, 1970 in accordance with the Revised Election Code.
After the adoption of said Res. No. 2 in 1967 but before the November elections of that year,
Congress, acting as a legislative body, enacted Republic Act No. 4914 implementing the aforesaid
Resolution No. 2 and practically restating in toto the provisions of said Resolution No. 2.
On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4
amending the aforesaid Resolution No. 2 of March 16, 1967 by providing that the convention "shall
be composed of 320 delegates apportioned among the existing representative districts according to

the number of their respective inhabitants: Provided, that a representative district shall be entitled to
at least two delegates, who shall have the same qualifications as those required of members of the
House of Representatives," 1 "and that any other details relating to the specific apportionment of
delegates, election of delegates to, and the holding of, the Constitutional Convention shall be embodied in
an implementing legislation: Provided, that it shall not be inconsistent with the provisions of this
Resolution." 2

On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132,
implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No.
4914. 3
Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular provisions
embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the
constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132 practically on the same grounds
advanced by petitioner Gonzales.
I
The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and employees, whether
elective or appointive, including members of the Armed Forces of the Philippines, as well as officers
and employees of corporations or enterprises of the government, as resigned from the date of the
filing of their certificates of candidacy, was recently sustained by this Court, on the grounds, inter
alia, that the same is merely an application of and in consonance with the prohibition in Sec. 2 of Art.
XII of the Constitution and that it does not constitute a denial of due process or of the equal
protection of the law. Likewise, the constitutionality of paragraph 2 of Sec. 8(a) of R.A. No. 6132 was
upheld. 4
II
Without first considering the validity of its specific provisions, we sustain the constitutionality of the
enactment of R.A. No. 6132 by Congress acting as a legislative body in the exercise of its broad lawmaking authority, and not as a Constituent Assembly, because
1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the
Constitution, has full and plenary authority to propose Constitutional amendments or
to call a convention for the purpose, by a three-fourths vote of each House in joint
session assembled but voting separately. Resolutions Nos. 2 and 4 calling for a
constitutional convention were passed by the required three-fourths vote.
2. The grant to Congress as a Constituent Assembly of such plenary authority to call
a constitutional convention includes, by virtue of the doctrine of necessary
implication, all other powers essential to the effective exercise of the principal power
granted, such as the power to fix the qualifications, number, apportionment, and
compensation of the delegates as well as appropriation of funds to meet the
expenses for the election of delegates and for the operation of the Constitutional
Convention itself, as well as all other implementing details indispensable to a fruitful
convention. Resolutions Nos. 2 and 4 already embody the above-mentioned details,
except the appropriation of funds.
3. While the authority to call a constitutional convention is vested by the present
Constitution solely and exclusively in Congress acting as a Constituent Assembly,
the power to enact the implementing details, which are now contained in Resolutions

Nos. 2 and 4 as well as in R.A. No. 6132, does not exclusively pertain to Congress
acting as a Constituent Assembly. Such implementing details are matters within the
competence of Congress in the exercise of its comprehensive legislative power,
which power encompasses all matters not expressly or by necessary implication
withdrawn or removed by the Constitution from the ambit of legislative action. And as
lone as such statutory details do not clash with any specific provision of the
constitution, they are valid.
4. Consequently, when Congress, acting as a Constituent Assembly, omits to provide
for such implementing details after calling a constitutional convention, Congress,
acting as a legislative body, can enact the necessary implementing legislation to fill in
the gaps, which authority is expressly recognized in Sec. 8 of Res No. 2 as amended
by Res. No. 4.
5. The fact that a bill providing for such implementing details may be vetoed by the
President is no argument against conceding such power in Congress as a legislative
body nor present any difficulty; for it is not irremediable as Congress can override the
Presidential veto or Congress can reconvene as a Constituent Assembly and adopt a
resolution prescribing the required implementing details.
III
Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not in
accordance with proportional representation and therefore violates the Constitution and the intent of
the law itself, without pinpointing any specific provision of the Constitution with which it collides.
Unlike in the apportionment of representative districts, the Constitution does not expressly or
impliedly require such apportionment of delegates to the convention on the basis of population in
each congressional district. Congress, sitting as a Constituent Assembly, may constitutionally
allocate one delegate for, each congressional district or for each province, for reasons of economy
and to avoid having an unwieldy convention. If the framers of the present Constitution wanted the
apportionment of delegates to the convention to be based on the number of inhabitants in each
representative district, they would have done so in so many words as they did in relation to the
apportionment of the representative districts. 5
The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intent
expressed therein; for it merely obeyed and implemented the intent of Congress acting as a
Constituent Assembly expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates
should be apportioned among the existing representative districts according to the number of their
respective inhabitants, but fixing a minimum of at least two delegates for a representative district.
The presumption is that the factual predicate, the latest available official population census, for such
apportionment was presented to Congress, which, accordingly employed a formula for the
necessary computation to effect the desired proportional representation.
The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is now
R.A. No. 6132, submitted to this Tribunal by the amici curiae, show that it based its apportionment of
the delegates on the 1970 official preliminary population census taken by the Bureau of Census and
Statistics from May 6 to June 30, 1976; and that Congress adopted the formula to effect a
reasonable apportionment of delegates. The Director of the Bureau of Census and Statistics himself,
in a letter to Senator Pelaez dated July 30, 1970, stated that "on the basis of the preliminary count of
the population, we have computed the distribution of delegates to the Constitutional Convention
based on Senate Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12) which is a fair and an equitable method

of distributing the delegates pursuant to the provisions of the joint Resolution of both Houses No. 2,
as amended. Upon your request at the session of the Senate-House Conference Committee
meeting last night, we are submitting herewith the results of the computation on the basis of the
above-stated method."
Even if such latest census were a preliminary census, the same could still be a valid basis for such
apportionment.6 The fact that the lone and small congressional district of Batanes, may be overrepresented, because it is allotted two delegates by R.A. No. 6132 despite the fact that it has a population
very much less than several other congressional districts, each of which is also allotted only two
delegates, and therefore under-represented, vis-a-vis Batanes alone, does not vitiate the apportionment
as not effecting proportional representation. Absolute proportional apportionment is not required and is
not possible when based on the number of inhabitants, for the population census cannot be accurate nor
complete, dependent as it is on the diligence of the census takers, aggravated by the constant movement
of population, as well as daily death and birth. It is enough that the basis employed is reasonable and the
resulting apportionment is substantially proportional. Resolution No. 4 fixed a minimum of two delegates
for a congressional district.

While there may be other formulas for a reasonable apportionment considering the evidence
submitted to Congress by the Bureau of Census and Statistics, we are not prepared to rule that the
computation formula adopted by, Congress for proportional representation as, directed in Res. No. 4
is unreasonable and that the apportionment provided in R.A. No. 6132 does not constitute a
substantially proportional representation.
In the Macias case, relied on by petitioner Gonzales, the apportionment law, which was nullified as
unconstitutional, granted more representatives to a province with less population than the provinces
with more inhabitants. Such is not the case here, where under Sec. 2 of R.A. No. 6132 Batanes is
allotted only two delegates, which number is equal to the number of delegates accorded other
provinces with more population. The present petitions therefore do not present facts which fit the
mould of the doctrine in the case of Macias et al. vs. Comelec, supra.
The impossibility of absolute proportional representation is recognized by the Constitution itself when
it directs that the apportionment of congressional districts among the various provinces shall be "as
nearly as may be according to their respective inhabitants, but each province shall have at least one
member" (Sec. 5, Art. VI, Phil. Const., emphasis supplied). The employment of the phrase "as nearly
as may be according to their respective inhabitants" emphasizes the fact that the human mind can
only approximate a reasonable apportionment but cannot effect an absolutely proportional
representation with mathematical precision or exactitude.
IV
Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty without due
process of law and denies the equal protection of the laws. Said Sec. 5 disqualifies any elected
delegate from running "for any public office in any election" or from assuming "any appointive office
or position in any branch of the government government until after the final adjournment of the
Constitutional Convention."
That the citizen does not have any inherent nor natural right to a public office, is axiomatic under our
constitutional system. The State through its Constitution or legislative body, can create an office and
define the qualifications and disqualifications therefor as well as impose inhibitions on a public
officer. Consequently, only those with qualifications and who do not fall under any constitutional or
statutory inhibition can be validly elected or appointed to a public office. The obvious reason for the
questioned inhibition, is to immunize the delegates from the perverting influence of self-interest,

party interest or vested interest and to insure that he dedicates all his time to performing solely in the
interest of the nation his high and well nigh sacred function of formulating the supreme law of the
land, which may endure for generations and which cannot easily be changed like an ordinary statute.
With the disqualification embodied in Sec. 5, the delegate will not utilize his position as a bargaining
leverage for concessions in the form of an elective or appointive office as long as the convention has
not finally adjourned. The appointing authority may, by his appointing power, entice votes for his own
proposals. Not love for self, but love for country must always motivate his actuations as delegate;
otherwise the several provisions of the new Constitution may only satisfy individual or special
interests, subversive of the welfare of the general citizenry. It should be stressed that the
disqualification is not permanent but only temporary only to continue until the final adjournment of
the convention which may not extend beyond one year. The convention that framed the present
Constitution finished its task in approximately seven months from July 30, 1934 to February 8,
1935.
As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional provision
prohibiting a member of Congress, during the time for which he was elected, from being appointed to
any civil office which may have been created or the emolument whereof shall have been increased
while he was a member of the Congress. (Sec. 16, Art. VI, Phil. Constitution.)
As observed by the Solicitor General in his Answer, the overriding objective of the challenged
disqualification, temporary in nature, is to compel the elected delegates to serve in full their term as
such and to devote all their time to the convention, pursuant to their representation and commitment
to the people; otherwise, his seat in the convention will be vacant and his constituents will be
deprived of a voice in the convention. The inhibition is likewise "designed to prevent popular political
figures from controlling elections or positions. Also it is a brake on the appointing power, to curtail
the latter's desire to 'raid' the convention of "talents" or attempt to control the convention." (p. 10,
Answer in L-32443.)
Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid limitation on the
right to public office pursuant to state police power as it is reasonable and not arbitrary.
The discrimination under Sec. 5 against delegates to the Constitutional Convention is likewise
constitutional; for it is based on a substantial distinction which makes for real differences, is germane
to the purposes of the law, and applies to all members of the same class. 7 The function of a delegate
is more far-reaching and its effect more enduring than that of any ordinary legislator or any other public
officer. A delegate shapes the fundamental law of the land which delineates the essential nature of the
government, its basic organization and powers, defines the liberties of the people, and controls all other
laws. Unlike ordinary statutes, constitutional amendments cannot be changed in one or two years. No
other public officer possesses such a power, not even the members of Congress unless they themselves,
propose constitutional amendments when acting as a Constituent Assembly pursuant to Art. XV of the
Constitution. The classification, therefore, is neither whimsical nor repugnant to the sense of justice of the
community.

As heretofore intimated, the inhibition is relevant to the object of the law, which is to insure that the
proposed amendments are meaningful to the masses of our people and not designed for the
enhancement of selfishness, greed, corruption, or injustice.
Lastly, the disqualification applies to all the delegates to the convention who will be elected on the
second Tuesday of November, 1970.
V

Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the
constitutional guarantees of due process, equal protection of the laws, freedom of expressions,
freedom of assembly and freedom of association.
This Court ruled last year that the guarantees of due process, equal protection of the laws, peaceful
assembly, free expression, and the right of association are neither absolute nor illimitable rights; they
are always subject to the pervasive and dormant police power of the State and may be lawfully
abridged to serve appropriate and important public interests. 8
In said Gonzalez vs. Comelec case the Court applied the clear and present danger test to determine
whether a statute which trenches upon the aforesaid Constitutional guarantees, is a legitimate
exercise of police power. 9
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:
1. any candidate for delegate to the convention
(a) from representing, or
(b) allowing himself to be represented as being a candidate of any
political party or any other organization; and
2. any political party, political group, political committee, civic, religious, professional
or other organizations or organized group of whatever nature from
(a) intervening in the nomination of any such candidate or in the filing
of his certificate, or
(b) from giving aid or support directly or indirectly, material or
otherwise, favorable to or against his campaign for election.
The ban against all political parties or organized groups of whatever nature contained in par. 1 of
Sec. 8(a), is confined to party or organization support or assistance, whether material, moral,
emotional or otherwise. The very Sec. 8(a) in its provisos permits the candidate to utilize in his
campaign the help of the members of his family within the fourth civil degree of consanguinity or
affinity, and a campaign staff composed of not more than one for every ten precincts in his district. It
allows the full exercise of his freedom of expression and his right to peaceful assembly, because he
cannot be denied any permit to hold a public meeting on the pretext that the provision of said section
may or will be violated. The right of a member of any political party or association to support him or
oppose his opponent is preserved as long as such member acts individually. The very party or
organization to which he may belong or which may be in sympathy with his cause or program of
reforms, is guaranteed the right to disseminate information about, or to arouse public interest in, or
to advocate for constitutional reforms, programs, policies or constitutional proposals for
amendments.
It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic
constitutional rights themselves remain substantially intact and inviolate. And it is therefore a valid
infringement of the aforesaid constitutional guarantees invoked by petitioners.
In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained the validity
of the limitation on the period for nomination of candidates in Sec. 50-A of R.A. No. 4880, thus:

The prohibition of too early nomination of candidates presents a question that is not
too formidable in character. According to the act: "It shall be unlawful for any political
party, political committee, or political group to nominate candidates for any elective
public office voted for at large earlier than one hundred and fifty days immediately
preceding an election, and for any other elective public office earlier than ninety days
immediately preceding an election.
The right of association is affected. Political parties have less freedom as to the time
during which they may nominate candidates; the curtailment is not such, however, as
to render meaningless such a basic right. Their scope of legitimate activities, save
this one, is not unduly narrowed. Neither is there infringement of their freedom to
assemble. They can do so, but not for such a purpose. We sustain its validity. We do
so unanimously. 10
In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of an
election campaign or partisan political activity may be limited without offending the aforementioned
constitutional guarantees as the same is designed also to prevent a "clear and present danger of a
substantive evil, the debasement of the electoral process." 11
Even if the partisan activity consists of (a) forming organizations, associations, clubs, committees or
other group of persons for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a party or candidate; (b) holding political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against any candidate or party; and (c)
giving, soliciting, or receiving contributions for election campaign either directly or indirectly, (Sec.
50-B, pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as constitutional by six
members of this Court, which could not "ignore ... the legislative declaration that its enactment was
in response to a serious substantive evil affecting the electoral process, not merely in danger of
happening, but actually in existence, and likely to continue unless curbed or remedied. To assert
otherwise would be to close one's eyes to the reality of the situation." 12;
Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec, supra,
failed to muster the required eight votes to declare as unconstitutional the limitation on the period for
(a) making speeches, announcements or commentaries or holding interviews for or against the
election of any party or candidate for public office; (b) publishing or distributing campaign literature or
materials; and (e) directly or indirectly soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party specified in Sec. 50-B, pars. (c), (d) & (e) of R.A.
4880. 13
The debasement of the electoral process as a substantive evil exists today and is one of the major
compelling interests that moved Congress into prescribing the total ban contained in par. 1 of Sec.
8(a) of R.A. No. 6132, to justify such ban. In the said Gonzales vs. Comelec case, this Court gave
"due recognition to the legislative concern to cleanse, and if possible, render spotless, the electoral
process," 14 impressed as it was by the explanation made by the author of R.A. No. 4880, Sen. Lorenzo
Taada, who appeared as amicus curiae, "that such provisions were deemed by the legislative body to be
part and parcel of the necessary and appropriate response not merely to a clear and present danger but
to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and
corruption as well as violence that of late has marred election campaigns and partisan political activities in
this country. He did invite our attention likewise to the well-settled doctrine that in the choice of remedies
for an admitted malady requiring governmental action, on the legislature primarily rests the responsibility.
Nor should the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or
disregarded." 15

But aside from the clear and imminent danger of the debasement of the electoral process, as
conceded by Senator Pelaez, the basic motivation, according to Senate Majority Floor Leader
Senator Arturo Tolentino, the sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec.
8(a) of R.A. No. 6132, is to assure the candidates equal protection of the laws by according them
equality of chances. 16 The primary purpose of the prohibition then is also to avert the clear and present
danger of another substantive evil, the denial of the equal protection of the laws. The candidates must
depend on their individual merits and not on the support of political parties or organizations. Senator
Tolentino and Senator Salonga emphasized that under this provision, the poor candidate has an even
chance as against the rich candidate. We are not prepared to disagree with them, because such a
conclusion, predicated as it is on empirical logic, finds support in our recent political history and
experience. Both Senators stressed that the independent candidate who wins in the election against a
candidate of the major political parties, is a rare phenomenon in this country and the victory of an
independent candidate mainly rests on his ability to match the resources, financial and otherwise, of the
political parties or organizations supporting his opponent. This position is further strengthened by the
principle that the guarantee of social justice under Sec. V, Art. II of the Constitution, includes the
guarantee of equal opportunity, equality of political rights, and equality before the law enunciated by Mr.
Justice Tuazon in the case Guido vs. Rural Progress Administration. 17

While it may be true that a party's support of a candidate is not wrong per se it is equally true that
Congress in the exercise of its broad law-making authority can declare certain acts as mala prohibita
when justified by the exigencies of the times. One such act is the party or organization support
proscribed in Sec. 8(a),which ban is a valid limitation on the freedom of association as well as
expression, for the reasons aforestated.
Senator Tolentino emphasized that "equality of chances may be better attained by banning all
organization support." 18
The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-interest test. 19
In the apt words of the Solicitor General:
It is to be noted that right now the nation is on the threshold of rewriting its
Constitution in a hopeful endeavor to find a solution to the grave economic, social
and political problems besetting the country. Instead of directly proposing the
amendments Congress has chosen to call a Constitutional Convention which shall
have the task of fashioning a document that shall embody the aspirations and ideals
of the people. Because what is to be amended is the fundamental law of the land, it
is indispensable that the Constitutional Convention be composed of delegates truly
representative of the people's will. Public welfare demands that the delegates should
speak for the entire nation, and their voices be not those of a particular segment of
the citizenry, or of a particular class or group of people, be they religious, political,
civic or professional in character. Senator Pelaez, Chairman of the Senate
Committee on Codes and Constitutional Amendments, eloquently stated that "the
function of a constitution is not to represent anyone in interest or set of interests, not
to favor one group at the expense or disadvantage of the candidates but to
encompass all the interests that exist within our society and to blend them into one
harmonious and balanced whole. For the constitutional system means, not the
predominance of interests, but the harmonious balancing thereof."
So that the purpose for calling the Constitutional Convention will not be deflated or
frustrated, it is necessary that the delegatee thereto be independent, beholden to no
one but to God, country and conscience.

xxx xxx xxx


The evil therefore, which the law seeks to prevent lies in the election of delegates
who, because they have been chosen with the aid and resources of organizations,
cannot be expected to be sufficiently representative of the people. Such delegates
could very well be the spokesmen of narrow political, religious or economic interest
and not of the great majority of the people. 20
We likewise concur with the Solicitor General that the equal protection of the laws is not unduly
subverted in par. I of Sec. 8(a); because it does not create any hostile discrimination against any
party or group nor does it confer undue favor or privilege on an individual as heretofore stated. The
discrimination applies to all organizations, whether political parties or social, civic, religious, or
professional associations. The ban is germane to the objectives of the law, which are to avert the
debasement of the electoral process, and to attain real equality of chances among individual
candidates and thereby make real the guarantee of equal protection of the laws.
The political parties and the other organized groups have built-in advantages because of their
machinery and other facilities, which, the individual candidate who is without any organization
support, does not have. The fact that the other civic of religious organizations cannot have a
campaign machinery as efficient as that of a political party, does not vary the situation; because it
still has that much built-in advantage as against the individual candidate without similar support.
Moreover, these civic religious and professional organization may band together to support common
candidates, who advocates the reforms that these organizations champion and believe are
imperative. This is admitted by petitioner Gonzales thru the letter of Senator Ganzon dated August
17, 1970 attached to his petition as Annex "D", wherein the Senator stated that his own "Timawa"
group had agreed with the Liberal Party in Iloilo to support petitioner Gonzales and two others as
their candidates for the convention, which organized support is nullified by the questioned ban,
Senator Ganzon stressed that "without the group moving and working in joint collective effort" they
cannot "exercise effective control and supervision over our
leaders the Women's League, the area commanders, etc."; but with their joining with the LP's they
"could have presented a solid front with very bright chances of capturing all seats."
The civic associations other than political parties cannot with reason insist that they should be
exempted from the ban; because then by such exemption they would be free to utilize the facilities of
the campaign machineries which they are denying to the political parties. Whenever all organization
engages in a political activity, as in this campaign for election of delegates to the Constitutional
Convention, to that extent it partakes of the nature of a political organization. This, despite the fact
that the Constitution and by laws of such civic, religious, or professional associations usually prohibit
the association from engaging in partisan political activity or supporting any candidate for an elective
office. Hence, they must likewise respect the ban.
The freedom of association also implies the liberty not to associate or join with others or join any
existing organization. A person may run independently on his own merits without need of catering to
a political party or any other association for support. And he, as much as the candidate whose
candidacy does not evoke sympathy from any political party or organized group, must be afforded
equal chances. As emphasized by Senators Tolentino and Salonga, this ban is to assure equal
chances to a candidate with talent and imbued with patriotism as well as nobility of purpose, so that
the country can utilize their services if elected.
Impressed as We are by the eloquent and masterly exposition of Senator Taada for the invalidation
of par. 1 of Sec. 8(a) of R.A. No. 6132, demonstrating once again his deep concern for the
preservation of our civil liberties enshrined in the Bill of Rights, We are not persuaded to entertain

the belief that the challenged ban transcends the limits of constitutional invasion of such cherished
immunities.
WHEREFORE, the prayers in both petitions are hereby denied and R.A. No. 6132 including Secs. 2,
4, 5, and 8(a), paragraph 1, thereof, cannot be declared unconstitutional. Without costs.
Reyes, J.B.L., Dizon and Castro, JJ., concur.
Makalintal, J., concurs in the result.
Teehankee, J., is on leave.

Separate Opinions

FERNANDO, J., concurring and dissenting:


The opinion of Justice Makasiar speaking for the Court, comprehensive in scope, persuasive in
character and lucid in expression, has much to recommend it. On the whole, I concur. I find difficulty,
however, in accepting the conclusion that there is no basis for the challenge hurled against the
validity of this provision: "No candidate for delegate to the Convention shall represent or allow
himself to be represented as being a candidate of any political party or any other organization, and
no political party, political group, political committee, civic, religious, professional, or other
organization or organized group of whatever nature shall intervene in the nomination of any such
candidate or in the filing of his certificate of candidacy or give aid or support directly or indirectly,
material or otherwise, favorable to or against his campaign for election: ..." 1 It is with regret then that I
dissent from that portion of the decision.

1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban on political parties
and civic, professional and other organizations is concerned with the explicit provision that the
freedom to form associations or societies for purposes not contrary to law shall not be
abridged. 2 The right of an individual to join others of a like persuasion to pursue common objectives and
to engage in activities is embraced within if not actually encouraged by the regime of liberty ordained by
the Constitution. This particular freedom has an indigenous cast, its origin being traceable to the Malolos
Constitution.

In the United States, in the absence of an explicit provision of such character, it is the view of Justice
Douglas, in a 1963 article, that it is primarily the First Amendment of her Constitution, which
safeguards freedom of speech and of the press, of assembly and of petition "that provides
[associations] with the protection they need if they are to remain viable and continue to contribute to
our Free Society." 3 Such is indeed the case, for five years earlier the American Supreme Court had
already declared: "It is beyond debate that freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of the "liberty" [embraced in] freedom of speech." 4

Not long after, in 1965, Justice Douglas as; spokesman for the American Supreme Court could
elaborate further on the scope of the right of association as including "the right to express one's
attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means,
Association in that context is a form of expression of opinion; and while it is not extremely included in
the First Amendment its existence is necessary in making the express guarantees fully
meaningful." 5 Thus is further vitalized freedom of expression which, for Justice Laurel, is at once the
instrument" and the guarantee and the bright consummate flower of all liberty" 6 and, for Justice Cardozo,
"the matrix, the indispensable condition of nearly every other form of freedom." 7

2. It is in the light of the above fundamental postulates that I find merit in the plea of petitioners to
annul the challenged provision. There is much to be said for the point emphatically stressed by
Senator Lorenzo M. Taada, as amicus curiae, to the effect that there is nothing unlawful in a
candidate for delegate to the Convention representing or allowing himself to be represented as such
of any political party or any other organization as well as of such political party, political group,
political committee, civic, religious, professional or other organization or organized group intervening
in his nomination, in the filing of his certificate of candidacy, or giving aid or support, directly or
indirectly, material or otherwise, favorable to or against his campaign for election as such delegate. I
find the conclusion inescapabe therefore, that what the constitutional provisions in question allow,
more specifically the right to form associations, is prohibited. The infirmity of the ban is thus apparent
on its face.
There is, to my mind, another avenue of approach that leads to the same conclusion. The final
proviso in the same section of the Act forbids any construction that would in any wise "impair or
abridge the freedom of civic, political, religious, professional, trade organizations or organized
groups of whatever nature to disseminate information about, or arouse public interest in, the
forthcoming Constitutional Convention, or to advocate constitutional reforms, programs, policies or
proposals for amendment of the present Constitution, and no prohibition contained herein shall limit
or curtail the right of their members, as long as they act individually, to support or oppose any
candidate for delegate to the Constitutional Convention." 8 It is regrettable that such an explicit
recognition of what cannot be forbidden consistently with the constitutional guarantees of freedom of
expression and freedom of association falls short of according full respect to what is thus commanded, by
the fundamental law, as they are precluded by the very same Act from giving aid or support precisely to
the very individuals who can carry out whatever constitutional reforms, programs, policies or proposals for
amendment they might advocate. As thus viewed, the conviction I entertain as to its lack of validity is
further strengthened and fortified.

3. It would be a different matter, of course, if there is a clear and present danger of a substantive evil
that would justify a limitation on such cherished freedoms. Reference has been made to Gonzales v.
Commission on Elections. 9 As repression is permissible only when the danger of substantive evil is
present is explained by Justice Branders thus: ... the evil apprehended is to imminent that it may befall
before there is opportunity for full discussion. If there be time to expose through discussion the falsehood
and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech,
not enforced silence. For him the apprehended evil must be "relatively serious." For "[prohibition] of free
speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a
relatively trivial harm to society." Justice Black would go further. He would require that the substantive evil
be "extremely serious." Only thus may there be a realization of the ideal envisioned by Cardozo: "There
shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme
borders where thought merges into action." It received its original formulation from Holmes. Thus: "The
question in every case is whether the words used in such circumstances are of such a nature as to create
a clear and present danger that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree." " 10 The majority of the Court would find the existence of
a clear and present danger of debasing the electoral process. With due respect, I find myself unable to
share such a view.

The assumption would, appear to be that there is a clear and present danger of a grave substantive
evil of partisanship running riot unless political parties are thus restrained. There would be a sacrifice
then of the national interest involved. The Convention might not be able to live up to the high hopes
entertained for an improvement of the fundamental law. It would appear though that what prompted
such a ban is to assure that the present majority party would not continue to play its dominant role in
the political life of the nation. The thought is entertained that otherwise, we will not have a
Convention truly responsive to the needs of the hour and of the future insofar as they may be
anticipated.
To my mind, this is to lose sight of the fact that in the national elections of 1946, 1953, 1961 and
1965, the presidency was won by the opposition candidate. Moreover, in national elections for
senators alone, that of 1951, to mention only one instance, saw a complete sweep of the field by the
then minority party. It would be unjustifiable, so I am led to believe to assume that inevitably the
prevailing dominant political party would continue its ascendancy in the coming Convention.
Then, too, the result of the plebiscite in the two proposed amendments in 1967 indicate
unmistakably that the people can, if so minded, make their wishes prevail. There is thus no
assurance that the mere identification with party labels would automatically insure the success of a
candidacy. Even if it be assumed that to guard against the evils of party spirit carried to excess, such
a ban is called for, still no such danger is presented by allowing civil, professional or any other
organization or organized group of whatever nature to field its own candidates or give aid or support,
directly or indirectly material or otherwise, to anyone running for the Convention. From such a
source, no such misgivings or apprehension need arise. Nor it the fear that organizations could
hastily be assembled or put up to camouflage their true colors as satellites of the political parties be
valid. The electorate can see through such schemes and can emphatically register its reaction.
There is, moreover, the further safeguard that whatever work the Convention may propose is
ultimately subject to popular ratification.
For me then the danger of a substantive evil is neither clear nor present. What causes me grave
concern is that to guard against such undesirable eventuality, which may not even come to pass, a
flagrant disregard of what the Constitution ordains is minimized. A desirable end cannot be coerced
by unconstitutional means.
4. It is not easy to yield assent to the proposition that on a matter so essentially political as the
amendment or revision of an existing Constitution, political parties or political groups are to be
denied the opportunity of launching the candidacy of their choice. Well has it been said by Chief
Justice Hughes: "The greater the importance of safeguarding the community from incitements to the
overthrow of our institutions by force and violence, the more imperative is the need to preserve
inviolate the constitutional rights of free speech, free press and free assembly in order to maintain
the opportunity for free political discussion, to the end that government may be responsive to the will
of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the
security of the Republic, the very foundation of constitutional government." 11 It is to carry this
essential process one step farther to recognize and to implement the right of every political party or group
to select the candidates who, by their election, could translate into actuality their hopes for the
fundamental law that the times demand. Moreover, is it not in keeping with the rights to intellectual
freedom so sedulously safeguarded by the Constitution to remove all obstacles to organized civic groups
making their influence felt in the task of constitution framing, the result of which has momentuous
implications for the nation? What is decisive of this aspect of the matter is not the character of the
association or organized group as such but the essentially political activity thus carried out.

This is not to deny the wide latitude as to the choice of means vested in Congress to attain a
desirable goal. Nor can it be successfully argued that the judiciary should display reluctance in
extending sympathy and understanding to such legislative determination. This is merely to stress

that however worthwhile the objective, the Constitution must still be paid deference. Moreover, it
may not be altogether unrealistic to consider the practical effects of the ban as thus worded as not
lacking in effectivity insofar as civic, religious, professional or other organizations or organized group
is concerned, but not necessarily so in the case of political party, political group or political
committee. There is the commendable admission by Senator Tolentino, appearing as amicus curiae,
that the political leaders of stature, in their individual capacity, could continue to assert their
influence. It could very well happen, then, in not a few cases, assuming the strength of political
parties, that a candidate thus favored is sure of emerging the victor. What is thus sought to be
accomplished to guard against the evil of party spirit prevailing could very well be doomed to futility.
The high hopes entertained by the articulate and vocal groups of young people, intellectuals and
workers, may not be realized. The result would be that this unorthodox and novel provision could
assume the character of a tease, an illusion like a munificent bequest in a pauper's will.
If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a radical approach
to a problem possibly tainted with constitutional infirmity cannot hurdle the judicial test as to its
validity. It is one thing to encourage a fresh and untried solution to a problem of gravity when the
probability of its success may be assumed. It is an entirely different matter to cut down the exercise
of what otherwise are undeniable constitutional rights, when as in this case, the outcome might belie
expectations. Considering the well-settled principle that even though the governmental process be
legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental
personal liberties, if the end can be narrowly achieved, I am far from being persuaded that to
preclude political parties or other groups or associations from lending aid and support to the
candidates of men in whom they can repose their trust is consistent with the constitutional rights of
freedom of association and freedom of expression. Here, the danger of overbreadth, so clear and
manifest as to be offensive to constitutional standards, magnified by the probability that the result
would be the failure and not success of the statutory scheme, cautions against the affixing of the
imprimatur of judicial approval to the challenged provision.
5. Necessarily then, from this mode of viewing the matter, it would follow that the holding of this
Court in Gonzales v. Comelec 12 does not compel the conclusion reached by the majority sustaining the
validity of this challenged provision. What survived the test of constitutional validity in that case, with the
Court unanimous in its opinion, is the prohibition for any political party, political committee or political
group to nominate candidates for any elective public office voted for at large earlier than 150 days
immediately preceding election and for any other public office earlier than 90 days immediately preceding
such election. 13 A corollary to the above limitation, the provision making it unlawful for any person,
whether or not a voter or candidate, or for any group or association of persons, whether or not a political
party or political committee, to engage in an election campaign or partisan political activity except during
the above periods successfully hurdled, the constitutional test, although the restrictions as to the making
of speeches, announcements or commentaries or holding interviews for or against the election of any
party or candidate for public office or the publishing or distributing of campaign literature or materials or
the solicitation or undertaking any campaign or propaganda for or against any candidate or party, directly
or indirectly, survived by the narrow margin of one vote, four members of this Court unable to discern any
constitutional infirmity as against the free speech guarantee, thus resulting in failing to muster the
necessary two-thirds majority for a declaration of invalidity. Insofar as election campaign or partisan
political activity would limit or restrict the formation, of organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda
for or against a party or candidate or, the giving, soliciting, or receiving a contribution for election
campaign purposes, either directly or indirectly as well as the holding of political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies, with a similar and in view, only five
members of this Court, a minority thereof voted, for their unconstitutionality. What emerges clearly, then,
is that definite acts short of preventing the political parties from the choice of their candidates and
thereafter working for them in effect were considered by this Court as not violative of the constitutional
freedoms of speech, of press, of assembly and of association.

The challenged provision in these two petitions, however, goes much farther. Political parties or any
other organization or organized group are precluded from selecting and supporting candidates for
delegates to the Constitutional Convention. To my mind, this is to enter a forbidden domain,
Congress trespassing on a field hitherto rightfully assumed to be within the sphere of liberty. Thus, I
am unable to conclude that our previous decision in Gonzales v. Commission on Elections which
already was indicative of the cautious and hesitant judicial approach to lending its approval to what
otherwise are invasions of vital constitutional safeguards to freedoms of belief, of expression, and of
association lends support to the decision reached by the majority insofar as this challenged provision
is concerned.
Hence my inability to subscribe in its entirety to the opinion of the Court. I am authorized to state that
the Chief Justice is in agreement with the views herein expressed.
Concepcion, C.J., Villamor and Zaldivar, JJ., concur.
BARREDO, J., concurring and dissenting:
Without prejudice to a more extended opinion, I vote, in concurrence with the majority, to sustain the
validity of the provisions of Republic Act 6132 impugned by petitioners in these cases, except
Section 4 and the portion of Section 8(a) referring to political parties. As regards Section 4, I reiterate
my separate opinion in the cases of Subido and others. (G.R. Nos. L-32436 and L-32439) With
respect to Section 8(a), I hold that the considerations which take the restraint on the freedoms of
association, assembly and speech involved in the ban on political parties to nominate and support
their own candidates, reasonable and within the limits of the Constitution do not obtain when it
comes to civic or non-political organizations. As I see it, the said ban, insofar as civic or non-political
organizations are concerned, is a deceptive device to preserve the built-in advantages of political
parties while at the same time crippling completely the other kinds of associations. The only way to
accomplish the purported objective of the law of equalizing the forces that will campaign in behalf of
the candidates to the constitutional convention is to maintain said ban only as against political
parties, for after all, only the activities and manners of operation of these parties and/or some of their
members have made necessary the imposition thereof. Under the resulting set up embodied in the
provision in question, the individual candidates who have never had any political party connections
or very little of it would be at an obvious disadvantage unless they are allowed to seek and use the
aid of civic organizations. Neither the elaborate provisions of Republic Act 6132 regarding methods
of campaign nor its other provisions intended to minimize the participation of political parties in the
electorate processes of voting, counting of the votes and canvassing of the results can overcome the
advantages of candidates more or less connected with political parties, particularly the major and
established ones, as long as the right to form other associations and the right of these associations
to campaign for their candidates are denied considering particularly the shortness of the time that is
left between now and election day.
The issues involved in the coming elections are grave and fundamental ones that are bound to affect
the lives, rights and liberties of all the people of this country most effectively, pervasively and
permanently. The only insurance of the people against political parties which may be inclined
towards the Establishment and the status quo is to organize themselves to gain much needed
strength and effectivity. To deny them this right is to stifle the people's only opportunity for change.
It is axiomatic that issues, no matter how valid, if not related to particular candidates in an organized
way, similarly as in the use of platforms by political parties, cannot have any chance of support and
final adoption. Both men and issues are important, but unrelated to each other, each of them alone
is insignificant, and the only way to relate them is by organization. Precisely because the issues in
this election of candidates are of paramount importance second to none, it is imperative that all of

the freedoms enshrined in the constitution should have the ampliest recognition for those who are
minded to actively battle for them and any attempt to curtail them would endanger the very purposes
for which a new constitutional convention has been conceived.
Consistently with my separate opinion in the case of Gonzales and Cabigao vs. Comelec, G.R. No.
L-27833, April 18, 1969 and for the reasons therein stated, I maintain that the right of suffrage which
is the cornerstone of any democracy like ours is meaningless when the right to campaign in any
election therein is unreasonably and unnecessarily curtailed, restrained or hampered, as is being
done under the statute in dispute.
It is, of course, understood that this opinion is based on my considered view, contrary to that of the
majority, that as Section 8(a) stands and taking into account its genesis, the ban against political
parties is separable from that against other associations within the contemplation of Section 21 of
the Act which expressly refers to the separability of the application thereof to any "persons, groups
or circumstances."
I reserve my right to expand this explanation of my vote in the next few days.

# Separate Opinions
FERNANDO, J., concurring and dissenting:
The opinion of Justice Makasiar speaking for the Court, comprehensive in scope, persuasive in
character and lucid in expression, has much to recommend it. On the whole, I concur. I find difficulty,
however, in accepting the conclusion that there is no basis for the challenge hurled against the
validity of this provision: "No candidate for delegate to the Convention shall represent or allow
himself to be represented as being a candidate of any political party or any other organization, and
no political party, political group, political committee, civic, religious, professional, or other
organization or organized group of whatever nature shall intervene in the nomination of any such
candidate or in the filing of his certificate of candidacy or give aid or support directly or indirectly,
material or otherwise, favorable to or against his campaign for election: ..." 1 It is with regret then that I
dissent from that portion of the decision.

1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban on political parties
and civic, professional and other organizations is concerned with the explicit provision that the
freedom to form associations or societies for purposes not contrary to law shall not be
abridged. 2 The right of an individual to join others of a like persuasion to pursue common objectives and
to engage in activities is embraced within if not actually encouraged by the regime of liberty ordained by
the Constitution. This particular freedom has an indigenous cast, its origin being traceable to the Malolos
Constitution.

In the United States, in the absence of an explicit provision of such character, it is the view of Justice
Douglas, in a 1963 article, that it is primarily the First Amendment of her Constitution, which
safeguards freedom of speech and of the press, of assembly and of petition "that provides
[associations] with the protection they need if they are to remain viable and continue to contribute to
our Free Society." 3 Such is indeed the case, for five years earlier the American Supreme Court had
already declared: "It is beyond debate that freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of the "liberty" [embraced in] freedom of speech." 4

Not long after, in 1965, Justice Douglas as; spokesman for the American Supreme Court could
elaborate further on the scope of the right of association as including "the right to express one's
attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means,
Association in that context is a form of expression of opinion; and while it is not extremely included in
the First Amendment its existence is necessary in making the express guarantees fully
meaningful." 5 Thus is further vitalized freedom of expression which, for Justice Laurel, is at once the
instrument" and the guarantee and the bright consummate flower of all liberty" 6 and, for Justice Cardozo,
"the matrix, the indispensable condition of nearly every other form of freedom." 7

2. It is in the light of the above fundamental postulates that I find merit in the plea of petitioners to
annul the challenged provision. There is much to be said for the point emphatically stressed by
Senator Lorenzo M. Taada, as amicus curiae, to the effect that there is nothing unlawful in a
candidate for delegate to the Convention representing or allowing himself to be represented as such
of any political party or any other organization as well as of such political party, political group,
political committee, civic, religious, professional or other organization or organized group intervening
in his nomination, in the filing of his certificate of candidacy, or giving aid or support, directly or
indirectly, material or otherwise, favorable to or against his campaign for election as such delegate. I
find the conclusion inescapabe therefore, that what the constitutional provisions in question allow,
more specifically the right to form associations, is prohibited. The infirmity of the ban is thus apparent
on its face.
There is, to my mind, another avenue of approach that leads to the same conclusion. The final
proviso in the same section of the Act forbids any construction that would in any wise "impair or
abridge the freedom of civic, political, religious, professional, trade organizations or organized
groups of whatever nature to disseminate information about, or arouse public interest in, the
forthcoming Constitutional Convention, or to advocate constitutional reforms, programs, policies or
proposals for amendment of the present Constitution, and no prohibition contained herein shall limit
or curtail the right of their members, as long as they act individually, to support or oppose any
candidate for delegate to the Constitutional Convention." 8 It is regrettable that such an explicit
recognition of what cannot be forbidden consistently with the constitutional guarantees of freedom of
expression and freedom of association falls short of according full respect to what is thus commanded, by
the fundamental law, as they are precluded by the very same Act from giving aid or support precisely to
the very individuals who can carry out whatever constitutional reforms, programs, policies or proposals for
amendment they might advocate. As thus viewed, the conviction I entertain as to its lack of validity is
further strengthened and fortified.

3. It would be a different matter, of course, if there is a clear and present danger of a substantive evil
that would justify a limitation on such cherished freedoms. Reference has been made to Gonzales v.
Commission on Elections. 9 As repression is permissible only when the danger of substantive evil is
present is explained by Justice Branders thus: ... the evil apprehended is to imminent that it may befall
before there is opportunity for full discussion. If there be time to expose through discussion the falsehood
and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech,
not enforced silence. For him the apprehended evil must be "relatively serious." For "[prohibition] of free
speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a
relatively trivial harm to society." Justice Black would go further. He would require that the substantive evil
be "extremely serious." Only thus may there be a realization of the ideal envisioned by Cardozo: "There
shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme
borders where thought merges into action." It received its original formulation from Holmes. Thus: "The
question in every case is whether the words used in such circumstances are of such a nature as to create
a clear and present danger that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree." " 10 The majority of the Court would find the existence of
a clear and present danger of debasing the electoral process. With due respect, I find myself unable to
share such a view.

The assumption would, appear to be that there is a clear and present danger of a grave substantive
evil of partisanship running riot unless political parties are thus restrained. There would be a sacrifice
then of the national interest involved. The Convention might not be able to live up to the high hopes
entertained for an improvement of the fundamental law. It would appear though that what prompted
such a ban is to assure that the present majority party would not continue to play its dominant role in
the political life of the nation. The thought is entertained that otherwise, we will not have a
Convention truly responsive to the needs of the hour and of the future insofar as they may be
anticipated.
To my mind, this is to lose sight of the fact that in the national elections of 1946, 1953, 1961 and
1965, the presidency was won by the opposition candidate. Moreover, in national elections for
senators alone, that of 1951, to mention only one instance, saw a complete sweep of the field by the
then minority party. It would be unjustifiable, so I am led to believe to assume that inevitably the
prevailing dominant political party would continue its ascendancy in the coming Convention.
Then, too, the result of the plebiscite in the two proposed amendments in 1967 indicate
unmistakably that the people can, if so minded, make their wishes prevail. There is thus no
assurance that the mere identification with party labels would automatically insure the success of a
candidacy. Even if it be assumed that to guard against the evils of party spirit carried to excess, such
a ban is called for, still no such danger is presented by allowing civil, professional or any other
organization or organized group of whatever nature to field its own candidates or give aid or support,
directly or indirectly material or otherwise, to anyone running for the Convention. From such a
source, no such misgivings or apprehension need arise. Nor it the fear that organizations could
hastily be assembled or put up to camouflage their true colors as satellites of the political parties be
valid. The electorate can see through such schemes and can emphatically register its reaction.
There is, moreover, the further safeguard that whatever work the Convention may propose is
ultimately subject to popular ratification.
For me then the danger of a substantive evil is neither clear nor present. What causes me grave
concern is that to guard against such undesirable eventuality, which may not even come to pass, a
flagrant disregard of what the Constitution ordains is minimized. A desirable end cannot be coerced
by unconstitutional means.
4. It is not easy to yield assent to the proposition that on a matter so essentially political as the
amendment or revision of an existing Constitution, political parties or political groups are to be
denied the opportunity of launching the candidacy of their choice. Well has it been said by Chief
Justice Hughes: "The greater the importance of safeguarding the community from incitements to the
overthrow of our institutions by force and violence, the more imperative is the need to preserve
inviolate the constitutional rights of free speech, free press and free assembly in order to maintain
the opportunity for free political discussion, to the end that government may be responsive to the will
of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the
security of the Republic, the very foundation of constitutional government." 11 It is to carry this
essential process one step farther to recognize and to implement the right of every political party or group
to select the candidates who, by their election, could translate into actuality their hopes for the
fundamental law that the times demand. Moreover, is it not in keeping with the rights to intellectual
freedom so sedulously safeguarded by the Constitution to remove all obstacles to organized civic groups
making their influence felt in the task of constitution framing, the result of which has momentuous
implications for the nation? What is decisive of this aspect of the matter is not the character of the
association or organized group as such but the essentially political activity thus carried out.

This is not to deny the wide latitude as to the choice of means vested in Congress to attain a
desirable goal. Nor can it be successfully argued that the judiciary should display reluctance in
extending sympathy and understanding to such legislative determination. This is merely to stress

that however worthwhile the objective, the Constitution must still be paid deference. Moreover, it
may not be altogether unrealistic to consider the practical effects of the ban as thus worded as not
lacking in effectivity insofar as civic, religious, professional or other organizations or organized group
is concerned, but not necessarily so in the case of political party, political group or political
committee. There is the commendable admission by Senator Tolentino, appearing as amicus curiae,
that the political leaders of stature, in their individual capacity, could continue to assert their
influence. It could very well happen, then, in not a few cases, assuming the strength of political
parties, that a candidate thus favored is sure of emerging the victor. What is thus sought to be
accomplished to guard against the evil of party spirit prevailing could very well be doomed to futility.
The high hopes entertained by the articulate and vocal groups of young people, intellectuals and
workers, may not be realized. The result would be that this unorthodox and novel provision could
assume the character of a tease, an illusion like a munificent bequest in a pauper's will.
If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a radical approach
to a problem possibly tainted with constitutional infirmity cannot hurdle the judicial test as to its
validity. It is one thing to encourage a fresh and untried solution to a problem of gravity when the
probability of its success may be assumed. It is an entirely different matter to cut down the exercise
of what otherwise are undeniable constitutional rights, when as in this case, the outcome might belie
expectations. Considering the well-settled principle that even though the governmental process be
legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental
personal liberties, if the end can be narrowly achieved, I am far from being persuaded that to
preclude political parties or other groups or associations from lending aid and support to the
candidates of men in whom they can repose their trust is consistent with the constitutional rights of
freedom of association and freedom of expression. Here, the danger of overbreadth, so clear and
manifest as to be offensive to constitutional standards, magnified by the probability that the result
would be the failure and not success of the statutory scheme, cautions against the affixing of the
imprimatur of judicial approval to the challenged provision.
5. Necessarily then, from this mode of viewing the matter, it would follow that the holding of this
Court in Gonzales v. Comelec 12 does not compel the conclusion reached by the majority sustaining the
validity of this challenged provision. What survived the test of constitutional validity in that case, with the
Court unanimous in its opinion, is the prohibition for any political party, political committee or political
group to nominate candidates for any elective public office voted for at large earlier than 150 days
immediately preceding election and for any other public office earlier than 90 days immediately preceding
such election. 13 A corollary to the above limitation, the provision making it unlawful for any person,
whether or not a voter or candidate, or for any group or association of persons, whether or not a political
party or political committee, to engage in an election campaign or partisan political activity except during
the above periods successfully hurdled, the constitutional test, although the restrictions as to the making
of speeches, announcements or commentaries or holding interviews for or against the election of any
party or candidate for public office or the publishing or distributing of campaign literature or materials or
the solicitation or undertaking any campaign or propaganda for or against any candidate or party, directly
or indirectly, survived by the narrow margin of one vote, four members of this Court unable to discern any
constitutional infirmity as against the free speech guarantee, thus resulting in failing to muster the
necessary two-thirds majority for a declaration of invalidity. Insofar as election campaign or partisan
political activity would limit or restrict the formation, of organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda
for or against a party or candidate or, the giving, soliciting, or receiving a contribution for election
campaign purposes, either directly or indirectly as well as the holding of political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies, with a similar and in view, only five
members of this Court, a minority thereof voted, for their unconstitutionality. What emerges clearly, then,
is that definite acts short of preventing the political parties from the choice of their candidates and
thereafter working for them in effect were considered by this Court as not violative of the constitutional
freedoms of speech, of press, of assembly and of association.

The challenged provision in these two petitions, however, goes much farther. Political parties or any
other organization or organized group are precluded from selecting and supporting candidates for
delegates to the Constitutional Convention. To my mind, this is to enter a forbidden domain,
Congress trespassing on a field hitherto rightfully assumed to be within the sphere of liberty. Thus, I
am unable to conclude that our previous decision in Gonzales v. Commission on Elections which
already was indicative of the cautious and hesitant judicial approach to lending its approval to what
otherwise are invasions of vital constitutional safeguards to freedoms of belief, of expression, and of
association lends support to the decision reached by the majority insofar as this challenged provision
is concerned.
Hence my inability to subscribe in its entirety to the opinion of the Court. I am authorized to state that
the Chief Justice is in agreement with the views herein expressed.
Concepcion, C.J., Villamor and Zaldivar, JJ., concur.
BARREDO, J., concurring and dissenting:
Without prejudice to a more extended opinion, I vote, in concurrence with the majority, to sustain the
validity of the provisions of Republic Act 6132 impugned by petitioners in these cases, except
Section 4 and the portion of Section 8(a) referring to political parties. As regards Section 4, I reiterate
my separate opinion in the cases of Subido and others. (G.R. Nos. L-32436 and L-32439) With
respect to Section 8(a), I hold that the considerations which take the restraint on the freedoms of
association, assembly and speech involved in the ban on political parties to nominate and support
their own candidates, reasonable and within the limits of the Constitution do not obtain when it
comes to civic or non-political organizations. As I see it, the said ban, insofar as civic or non-political
organizations are concerned, is a deceptive device to preserve the built-in advantages of political
parties while at the same time crippling completely the other kinds of associations. The only way to
accomplish the purported objective of the law of equalizing the forces that will campaign in behalf of
the candidates to the constitutional convention is to maintain said ban only as against political
parties, for after all, only the activities and manners of operation of these parties and/or some of their
members have made necessary the imposition thereof. Under the resulting set up embodied in the
provision in question, the individual candidates who have never had any political party connections
or very little of it would be at an obvious disadvantage unless they are allowed to seek and use the
aid of civic organizations. Neither the elaborate provisions of Republic Act 6132 regarding methods
of campaign nor its other provisions intended to minimize the participation of political parties in the
electorate processes of voting, counting of the votes and canvassing of the results can overcome the
advantages of candidates more or less connected with political parties, particularly the major and
established ones, as long as the right to form other associations and the right of these associations
to campaign for their candidates are denied considering particularly the shortness of the time that is
left between now and election day.
The issues involved in the coming elections are grave and fundamental ones that are bound to affect
the lives, rights and liberties of all the people of this country most effectively, pervasively and
permanently. The only insurance of the people against political parties which may be inclined
towards the Establishment and the status quo is to organize themselves to gain much needed
strength and effectivity. To deny them this right is to stifle the people's only opportunity for change.
It is axiomatic that issues, no matter how valid, if not related to particular candidates in an organized
way, similarly as in the use of platforms by political parties, cannot have any chance of support and
final adoption. Both men and issues are important, but unrelated to each other, each of them alone
is insignificant, and the only way to relate them is by organization. Precisely because the issues in
this election of candidates are of paramount importance second to none, it is imperative that all of

the freedoms enshrined in the constitution should have the ampliest recognition for those who are
minded to actively battle for them and any attempt to curtail them would endanger the very purposes
for which a new constitutional convention has been conceived.
Consistently with my separate opinion in the case of Gonzales and Cabigao vs. Comelec, G.R. No.
L-27833, April 18, 1969 and for the reasons therein stated, I maintain that the right of suffrage which
is the cornerstone of any democracy like ours is meaningless when the right to campaign in any
election therein is unreasonably and unnecessarily curtailed, restrained or hampered, as is being
done under the statute in dispute.
It is, of course, understood that this opinion is based on my considered view, contrary to that of the
majority, that as Section 8(a) stands and taking into account its genesis, the ban against political
parties is separable from that against other associations within the contemplation of Section 21 of
the Act which expressly refers to the separability of the application thereof to any "persons, groups
or circumstances."
I reserve my right to expand this explanation of my vote in the next few days.
# Footnotes
1 Sec. 1 of Res. No. 4.
2 Sec. 3, Res. No. 4.
3 Sec. 22, R.A. No. 6132.
4 Abelardo Subido vs. Comelec, in re validity of Sec. 4 and Sec. 8(a) par. 2, R.A.
6132, G.R. No. L-32436, and In the matter of the petition for declaratory relief re
validity and constitutionality of Sec. 4, R.A. 6132, Hon. Guardson Lood, Judge, CFI,
Pasig, Rizal et al., petitioners, G.R. No. L-32439, Sept. 9, 1970.
5 Sec. 5, Art. VI, Constitution.
6 Macias et al. vs. Comelec, G. R. No. L-18684, Sept. 14, 1961..
7 People vs. Vera, 65 Phil. 56; People vs. Solon, G.R. No. L-14864, Nov. 23, 1960.
8 See Gonzales vs. Comelec, L-27833, April 18, 1969; Vol. 27, SCRA, p. 835, 858 et
seq.; Justice Douglas in Elfbrandt v. Russel, 384 US 11, 18-19, 1966.
9 27 SCRA, pp. 860-861.
10 27 SCRA, p. 865.
11 27 SCRA, p. 869.
12 27 SCRA, pp. 864-865, 868.
13 27 SCRA, pp. 869-870.

14 27 SCRA, p. 873.
15 27 SCRA, p. 872.
16 See his sponsorship speech of July 20, 1970.
17 84 Phil. 847, 852.
18 See his sponsorship speech on July 20, 1970.
19 See Justice Castro's separate opinion in Gonzales vs. Comelec, supra, 27 SCRA,
pp. 898-899 citing American Communications Association vs. Douds, 339 U.S. 383,
94 L. Ed., 925, 9437.
20 Pp. 4-5, 12, Answer in L-32432.
FERNANDO, J., concurring and dissenting:
1 Sec. 8(a), Republic Act No. 6132 (1970).
2 The Constitution provides: "The right to form associations or societies for purposes
not contrary to law shall not be abridged." Art. III, Sec. 1, par. 6.
3 Douglas, The Right of Association, 63 Col. Law Rev. 1363 (1963).
4 NAACP v. Alabama ex rel. Patterson, 357 US 449, 460 (1958) per Harlan, J. Cf.
Bates v. Little Rock, 361 US 516 (1960); Shelton v. Tucker, 364 US 479. (1960);
Louisiana ex rel. Gremillon v. NAACP, 366 US. 293 (1961); Communist Party v.
Subversive Activities Control Board, 367 US 1 (1961); Scales v. United States, 367
US 203 (1961); NAACP v. Button, 371 US 415 (1963); Gibson v. Florida Legislative
Investigation, Comm., 372 US 539 (1963); Brotherhood v. Virginia ex rel. State Bar
377 US 1 (1964); NAACP v. Alabama, 377 US 288 (1964).
5 Griswold v. Connecticut, 381 US 479, 483 (1965). In Elfbrandt v. Russel, 384 US
11, 18 (1966) he spoke of this right as a "cherished freedom." Cf. Keyishan v. Board
of Regents, 385 US 589 (1967).
6 Planas v. Gil, 67 Phil. 62 (1939), Justice Laurel quoting Wendell Philipps.
7 Palko v. Connecticut, 302 US 319, 323 (1937).
8 Section 8(a), Republic Act No. 6132 (1970).
9 L-27833, April 18, 1969, 27 SCRA 835.
10 Ibid., pp. 859-860.
11 De Jonge v. Oregon, 299 US 353, 365 (1937).
12 L-27833, April 18, 1969, 27 SCRA -835.

13 Sec. 50(a) of Republic Act 4880 (1967).

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 petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible
confusion, and considering that with the principal parties being duly represented by able counsel,
their interests would be adequately protected already, the Court had to limit the number of
intervenors from the ranks of the delegates to the Convention who, more or less, have legal interest
in the success of the respondents, and so, only Delegates Raul S. Manglapus, Jesus G. Barrera,
Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna,
Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right, have been allowed to

intervene jointly. The Court feels that with such an array of brilliant and dedicated counsel, all
interests involved should be duly and amply represented and protected. At any rate, notwithstanding
that their corresponding motions for leave to intervene or to appear as amicus curiae 1 have been
denied, the pleadings filed by the other delegates and some private parties, the latter in
representation of their minor children allegedly to be affected by the result of this case 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
Comelec's acts in obedience thereof and tending to carry out the holding of the plebiscite directed by
said resolutions are null and void, on the ground that the calling and holding of such a plebiscite is,
by the Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be
exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the proposed
amendment in question cannot be presented to the people for ratification separately from each and
all of the other amendments to be drafted and proposed by the Convention. On the other hand,
respondents and intervenors posit that the power to provide for, fix the date and lay down the details

of the plebiscite for the ratification of any amendment the Convention may deem proper to propose
is within the authority of the Convention as a necessary consequence and part of its power to
propose amendments and that this power includes that of submitting such amendments either
individually or jointly at such time and manner as the Convention may direct in discretion. The
Court's delicate task now is to decide which of these two poses is really in accord with the letter and
spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They
contend that the issue before Us is a political question and that the Convention being legislative
body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the
control of the Congress and the courts. In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact, respondents Chief Accountant and Auditor
of the convention expressly concede the jurisdiction of this Court in their answer acknowledging that
the issue herein is a justifiable one.
Strangely, intervenors cite in support of this contention portions of the decision of this Court in the
case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being
divided in their opinions as to the other matters therein involved, were precisely unanimous in
upholding its jurisdiction. Obviously, distinguished counsel have either failed to grasp the full impact
of the portions of Our decision they have quoted or would misapply them by taking them out of
context.
There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter,
those of a constitutional convention called for the purpose of proposing amendments to the
Constitution, which concededly is at par with the former. A simple reading of Our ruling in that very
case of Gonzales relied upon by intervenors should dispel any lingering misgivings as regards that
point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court thus: .
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, (L18684, 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 aconstituent assembly. When acting as such, the members
of Congress derive their authority from the Constitution, unlike the people, when
performing the same function, (Of amending the Constitution) for their authority
does not emanate from the Constitution they are the very source of all powers of
government including the Constitution itself.
Since, when proposing, as a constituent assembly, amendments to the Constitution,
the members of Congress derive their authority from the Fundamental Law, it follows,
necessarily, that they do not have the final say on whether or not their acts are within
or beyond constitutional limits. Otherwise, they could brush aside and set the same
at naught, contrary to the basic tenet that ours is a government of laws, not of men,
and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that the
Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower
courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress acting as a constituent
assembly violates the Constitution is essentially justiciable not political, and,
hence, subject to judicial review, and, to the extent that this view may be inconsistent
with the stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed
modified accordingly. The Members of the Court are unanimous on this point.
No one can rightly claim that within the domain of its legitimate authority, the Convention is not
supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point
otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that the
Constitutional Convention of 1971, as any other convention of the same nature, owes its existence
and derives all its authority and power from the existing Constitution of the Philippines. This
Convention has not been called by the people directly as in the case of a revolutionary convention
which drafts the first Constitution of an entirely new government born of either a war of liberation
from a mother country or of a revolution against an existing government or of a bloodless seizure of
power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is
completely without restrain and omnipotent all wise, and it is as to such conventions that the remarks
of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer.
No amount of rationalization can belie the fact that the current convention came into being only
because it was called by a resolution of a joint session of Congress acting as a constituent assembly
by authority of Section 1, Article XV of the present Constitution which provides:

ARTICLE XV AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of
all the Members of the Senate and of the House of Representatives voting
separately, may propose amendments to this Constitution or call a convention for the
purpose. Such amendments shall be valid as part of this Constitution when approved
by a majority of the votes cast at an election at which the amendments are submitted
to the people for their ratification.
True it is that once convened, this Convention became endowed with 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 Convention's Organic
Resolution No. 1 in the manner and form provided for in said resolution and the subsequent
implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand the most accurate and
unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has very
clearly stated that he is not against the constitutional extension of the right of suffrage to the
eighteen-year-olds, as a matter of fact, he has advocated or sponsored in Congress such a
proposal, and that, in truth, the herein petition is not intended by him to prevent that the proposed
amendment here involved be submitted to the people for ratification, his only purpose in filing the
petition being to comply with his sworn duty to prevent, Whenever he can, any violation of the
Constitution of the Philippines even if it is committed in the course of or in connection with the most
laudable undertaking. Indeed, as the Court sees it, the specific question raised in this case is limited
solely and only to the point of whether or not it is within the power of the Convention to call for a
plebiscite for the ratification by the people of the constitutional amendment proposed in the

abovequoted Organic Resolution No. 1, in the manner and form provided in said resolution as well
as in the subject question implementing actions and resolution of the Convention and its officers, at
this juncture of its proceedings, when as it is a matter of common knowledge and judicial notice, it is
not set to adjourn sine die, and is, in fact, still in the preliminary stages of considering other reforms
or amendments affecting other parts of the existing Constitution; and, indeed, Organic Resolution
No. 1 itself expressly provides, that the amendment therein proposed "shall be without prejudice to
other amendments that will be proposed in the future by the 1971 Constitutional Convention on other
portions of the amended section or on other portions of the entire Constitution." In other words,
nothing that the Court may say or do, in this case should be understood as reflecting, in any degree
or means the individual or collective stand of the members of the Court on the fundamental issue of
whether or not the eighteen-year-olds should be allowed to vote, simply because that issue is not
before Us now. There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said proposed amendment
may be presented to the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not
blinded them to the absolute necessity, under the fundamental principles of democracy to which the
Filipino people is committed, of adhering always to the rule of law. Surely, their idealism, sincerity
and purity of purpose cannot permit any other line of conduct or approach in respect of the problem
before Us. The Constitutional Convention of 1971 itself was born, in a great measure, because of
the pressure brought to bear upon the Congress of the Philippines by various elements of the
people, the youth in particular, in their incessant search for a peaceful and orderly means of bringing
about meaningful changes in the structure and bases of the existing social and governmental
institutions, including the provisions of the fundamental law related to the well-being and economic
security of the underprivileged classes of our people as well as those concerning the preservation
and protection of our natural resources and the national patrimony, as an alternative to violent and
chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm which
at times have justifiably or unjustifiably marred the demonstrations in the streets, plazas and
campuses, the youth of the Philippines, in general, like the rest of the people, do not want confusion
and disorder, anarchy and violence; what they really want are law and order, peace and orderliness,
even in the pursuit of what they strongly and urgently feel must be done to change the present order
of things in this Republic of ours. It would be tragic and contrary to the plain compulsion of these
perspectives, if the Court were to allow itself in deciding this case to be carried astray by
considerations other than the imperatives of the rule of law and of the applicable provisions of the
Constitution. Needless to say, in a larger measure than when it binds other departments of the
government or any other official or entity, the Constitution imposes upon the Court the sacred duty to
give meaning and vigor to the Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties, and by striking down any act violative thereof. Here, as in
all other cases, We are resolved to discharge that duty.
During these twice when most anyone feels very strongly the urgent need for constitutional reforms,
to the point of being convinced that meaningful change is the only alternative to a violent revolution,
this Court would be the last to put any obstruction or impediment to the work of the Constitutional
Convention. If there are respectable sectors opining that it has not been called to supplant the
existing Constitution in its entirety, since its enabling provision, Article XV, from which the
Convention itself draws life expressly speaks only of amendments which shall form part of it, which
opinion is not without persuasive force both in principle and in logic, the seemingly prevailing view is
that only the collective judgment of its members as to what is warranted by the present condition of
things, as they see it, can limit the extent of the constitutional innovations the Convention may
propose, hence the complete substitution of the existing constitution is not beyond the ambit of the
Convention's authority. Desirable as it may be to resolve, this grave divergence of views, the Court
does not consider this case to be properly the one in which it should discharge its constitutional duty
in such premises. The issues raised by petitioner, even those among them in which respondents and

intervenors have joined in an apparent wish to have them squarely passed upon by the Court do not
necessarily impose upon Us the imperative obligation to express Our views thereon. The Court
considers it to be of the utmost importance that the Convention should be untrammelled and
unrestrained in the performance of its constitutionally as signed mission in the manner and form it
may conceive best, and so the Court may step in to clear up doubts as to the boundaries set down
by the Constitution only when and to the specific extent only that it would be necessary to do so to
avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter. Withal, it is a
very familiar principle of constitutional law that constitutional questions are to be resolved by the
Supreme Court only when there is no alternative but to do it, and this rule is founded precisely on the
principle of respect that the Court must accord to the acts of the other coordinate departments of the
government, and certainly, the Constitutional Convention stands almost in a unique footing in that
regard.
In our discussion of the issue of jurisdiction, We have already made it clear that the Convention
came into being by a call of a joint session of Congress pursuant to Section I of Article XV of the
Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to
its internal operation and the performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all subject to all the provisions of the
existing Constitution. Now We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it is
plain to Us that the framers of the Constitution took care that the process of amending the same
should not be undertaken with the same ease and facility in changing an ordinary legislation.
Constitution making is the most valued power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution affects the lives, fortunes,
future and every other conceivable aspect of the lives of all the people within the country and those
subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution
worthy of the people for which it is intended must not be prepared in haste without adequate
deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no
less importance than the whole Constitution itself, and perforce must be conceived and prepared
with as much care and deliberation. From the very nature of things, the drafters of an original
constitution, as already observed earlier, operate without any limitations, restraints or inhibitions
save those that they may impose upon themselves. This is not necessarily true of subsequent
conventions called to amend the original constitution. Generally, the framers of the latter see to it
that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons
purely personal but more importantly, because written constitutions are supposed to be designed so
as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs
and exigencies of the people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment. And when such limitations or
conditions are so incorporated in the original constitution, it does not lie in the delegates of any
subsequent convention to claim that they may ignore and disregard such conditions because they
are as powerful and omnipotent as their original counterparts.
Nothing of what is here said is to be understood as curtailing in any degree the number and nature
and the scope and extent of the amendments the Convention may deem proper to propose. Nor
does the Court propose to pass on the issue extensively and brilliantly discussed by the parties as to
whether or not the power or duty to call a plebiscite for the ratification of the amendments to be
proposed by the Convention is exclusively legislative and as such may be exercised only by the
Congress or whether the said power can be exercised concurrently by the Convention with the
Congress. In the view the Court takes of present case, it does not perceive absolute necessity to
resolve that question, grave and important as it may be. Truth to tell, the lack of unanimity or even of

a consensus among the members of the Court in respect to this issue creates the need for more
study and deliberation, and as time is of the essence in this case, for 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 Convention's
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, JJ., 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 people's 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 18year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so simple after all.
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 Wood's
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 Orfield's 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. Petitioner's 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, JJ., 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 people's 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 18year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so simple after all.
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 Wood's
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 Orfield's 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. Petitioner's 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 Wood's 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 people's 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."

G.R. No. L-35925 January 22, 1973


CHARITO PLANAS, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35929 January 22, 1973
PABLO C. SANIDAD, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35940 January 22, 1973
GERARDO ROXAS, etc., et al. petitioners,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35941 January 22, 1973
EDDIE B. MONTECLARO, petitioner,
vs.
THE COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35942 January 22, 1973
SEDFREY A. ORDOEZ, et al., petitioners,
vs.
THE NATIONAL TREASURER OF THE PHILIPPINES, et al., respondents.
G.R. No. L-35948 January 22, 1973
VIDAL TAN, et al., petitioners,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35953 January 22, 1973
JOSE W. DIOKNO, et al., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondents.
G.R. No. L-35961 January 22, 1973
JACINTO JIMENEZ, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35965 January 22, 1973

RAUL M. GONZALES, petitioner,


vs.
THE HONORABLE COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35979 January 22, 1973
ERNESTO HIDALGO, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
Ramon A. Gonzales for petitioner Charito Planas.
Pablito V. Sanidad and Gerardo L. Catipon for petitioner Pablo C. Sanidad.
Jovito R. Salonga and Associates and Rodrigo Law Office for petitioners Gerardo Roxas, etc., et al.
Quijano and Arroyo for petitioner Eddie B. Monteclaro.
Sedfrey A. Ordonez and Associates for petitioners Sedfrey A. Ordonez, et al.
Lorenzo M. Taada for petitioners Vidal Tan, et al.
Francis E. Garchitorena for petitioners Jose W. Diokno, et al.
Jacinto Jimenez in his own behalf.
Raul M. Gonzales in his own behalf.
Ernesto Hidalgo in his own behalf.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T.
Limcaoco, Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for respondents.

CONCEPCION, C.J.:
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. No. 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 A. 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 (o'clock) 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, 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.
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 date 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 one more question would be
added to the four (4) questions previously announced, and that the forms of the
questions 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 is running the affairs of the
government?" [Bulletin Today, January 10, 1973; additional question
emphasis.]
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 call 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 that
the proposed 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 L35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and
L-35942, "Sedfrey A. Ordonez, 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 filed 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 LocaI Governments and its
head, Secretary Jose Rono; 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 Rono; 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 16, 1973).
It should be recalled that the Citizens' Assemblies were ordered formed only at the
beginning of the year (Daily Express, January 1, 1971), and considering the lack of
experience of the local organizers of said assemblies, as well as the absence of
sufficient guidelines for organizations, 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
and 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 Decrees 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 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 pIebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixtyone (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 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 for Our 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 of 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 President's 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 Member have
preferred to merely concur in the opinion of one of our colleagues.
What follows is my own view on these cases.
The first question for Our determination is whether We have authority to pass upon the validity of
Presidential Decree No. 73, in view of the Solicitor General's allegation to the effect that said
question is a political one. I am of the opinion on which the Members of the Court are unanimous
that the contention of the Solicitor General is untenable and that the issue aforementioned is a
justiciable one. Indeed, the contested decree purports to have the force and effect of a legislation, so
that the issue on the validity thereof is manifestly a justiciable one, on the authority, not only of a
long list of cases in which the Court has passed upon the constitutionality of statutes and/or acts of
the Executive, 1 but, also, of no less than that of Subdivision (1) of Section 2, Article VIII of the 1935
Constitution, 2 which expressly provides for the authority of this Court to review cases involving said issue.

Petitioners in G.R. No. L-35948 maintain that the 1971 Constitutional Convention had exceeded its
authority in approving Sections 2, 3 (par. 2) and 12 of Article XVII of the proposed Constitution.
Regardless of the wisdom and moral aspects of the contested provisions of the proposed
Constitution, it is my considered view that the Convention was legally free to postulate any
amendment it may deem fit to propose save perhaps what is or may be inconsistent with what is
now known, particularly in international law, as Jus Cogens not only because the Convention
exercised sovereign powers delegated thereto by the people although insofar only as the
determination of the proposals to be made and formulated by said body is concerned but, also,
because said proposals cannot be valid as part of our Fundamental Law unless and until "approved
by the majority of the votes cast at an election at which" " said proposals "are submitted to the
people for their ratification," as provided in Section 1 of Art. XV of the 1935 Constitution.
As regards the authority of the President to issue Presidential Decree No. 73, "submitting to the
Filipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of
the Philippines proposed by the 1971 Constitutional Convention and appropriating funds therefor," I
find it unnecessary, for the time being, to pass upon such question, because the plebiscite ordained
in said Decree has been postponed. In any event, should the plebiscite be scheduled to be held at
any time later, the proper parties may then file such action as the circumstances may justify.
With respect to the question whether or not martial law per se affects the validity of a submission to
the people for ratification of specific proposals for amendment of the Constitution, I consider this
matter as one intimately and necessarily related to the validity of Proclamation No. 1102 of the
President of the Philippines. This question has not been explicitly raised, however, in any of the
cases under consideration, said cases having been filed before the issuance of such Proclamation,
although the petitioners in L-35948 maintain that the issue on the referral of the Proposed

Constitution to the Citizens' Assemblies may be deemed and was raised in their Supplemental
Motion of January 15, 1973. At any rate, said question has not been adequately argued by the
parties in any of these cases, and it would not be proper to resolve such a transcendental question
without the most thorough discussion possible under the circumstances. In fairness to the petitioners
in L-35948 and considering the surrounding circumstances, I believe, therefore, that, instead of
dismissing the case as moot and academic, said petitioners should be given a reasonable period of
time within which to move in the premises.
Recapitulating the views expressed by the Members of the Court, the result is this:
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 that issue involves question 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 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 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.
WHEREFORE, all of the aforementioned cases are hereby dismissed, without special
pronouncement as to costs.
It is so ordered.
Makasiar, J., concur.

Separate Opinions

MAKALINTAL and CASTRO, JJ., concurring:


The principal relief prayed for in the petition in G.R. NO. L-35948 is to declare "Sections 2, 3 (par 2),
and 12 of Article XVII, of the 1972 Draft on proposed Constitution approved by the 1971
Constitutional Convention on November 30, 1972 as well as Presidential Decree No. 73 or any
similar decree, proclamation, order or instruction unconstitutional, null and void, ..." Basically,
although couched in different language, it is the same relief sought in the other petitions.
Article XVII contains the transitory provisions. Section 2 thereof refers to the membership of the
interim National Assembly, which includes, among others, "those Delegates to the (1971)
Constitutional Convention who have opted to serve therein by voting affirmatively for this Article."
Section 3 (par. 2) provides that "(A)ll 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." And Section 12 states in part: "All treaties,
executive agreements, and contracts entered into by the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations, are hereby
recognized as legal, valid, and binding ..."
Presidential Decree No. 73, issued on December 1, 1972, called for a plebiscite to be held on
January 15, 1973, wherein the proposed Constitution would be submitted for ratification. At the same
time it appropriated the sum of P15,000,000.00 for that purpose. It was primarily to stop the said
plebiscite from being held that these petitions were filed.
The specific grounds alleged in the petition in G.R. No. L-35948 to support the relief prayed for
which are fairly representative of the others, read as follows:
I. The President of the Philippines has no power to call a plebiscite for the ratification
or rejection of the 1972 Draft; neither has he the power to appropriate funds for the
holding of the said plebiscite.
II. The 1972 Draft is vague and incomplete. It makes an unconstitutional delegation
of power. And it contains provisions which were beyond the power of the convention
to enact. All these have made the 1972 Draft unfit for "proper submission" to the
people.
III. The period of time between November 30, 1972 when the 1972 Draft was
approved, and January 15, 1973, the date the plebiscite will be held, is too
inadequate for the people to be informed of the contents of the 1972 Draft, and to
study and discuss them so that they could thereafter intelligently cast their vote.
Towards the end of December 1972 it was announced in the newspapers that the President had
postponed the plebiscite to a date to be fixed later, although tentatively February 19 and March 5,
1973 were mentioned. The announcement was made officially in General Order No. 20, dated
January 7, 1973. Then on January 17, 1973 the President issued Proclamation No 1102, certifying
that the proposed Constitution had been ratified by the Citizens Assemblies created under
Presidential Decree No. 86, issued on December 31, 1972, and that therefore it had become
effective.
In view of the foregoing developments which supervened after the petitions herein and the answers
thereto were filed and the cases argued by the parties, the issues raised in grounds Nos. I and III
abovequoted have become moot. The plebiscite sought to be enjoined did not take place on January
15, 1973. Indeed, its postponement to some indefinite date in the future rendered the petition also
premature. But of course whether the petition is moot or premature makes no material difference as
far as these cases are concerned, since the announced ratification of the proposed Constitution by
the Citizens Assemblies has made it unlikely that any plebiscite will be held.
With respect to ground No. II we are of the opinion that the question of whether or not the proposals
referred to by the petitioners, specifically Secs. 2, 3 (par. 2) and 12, were proper for submission to
the people for ratification has likewise become moot because of the President's Proclamation No.
1102 certifying that such ratification has already taken place. If they may be assailed at all as invalid
it should be not as mere proposals by the Convention but already as provisions of the Constitution,
and certainly not in the present cases in the state in which they have been submitted for decision.

There was an attempt on the part of counsel for the petitioner in G.R. No. L-35948 during the oral
argument on his urgent motion for early decision to question the validity of Proclamation No. 1102.
This question is not within the purview of the petition and involves issues which have neither been
raised nor argued herein, having arisen in a new and different setting and frame of reference, and
hence may only be ventilated, if at all, in an appropriate case or at least through appropriate
pleadings so that the parties may be duly heard.
We therefore vote to dismiss the petitions.
TEEHANKEE, J., concurring:
Without prejudice to the filing of a separate extended opinion, I concur with the Chief Justice in his
separate opinion and add the following brief comments.
The Solicitor General's Office on behalf of respondents manifested as of its last comment of January
16, 1973 that "(W)ith respect to the statement in the Joint Manifestation that Presidential Decree No.
73 which calls for the holding of the plebiscite on January 15, 1973 still stands, the plebiscite
scheduled to be held on January 15, 1973 has been postponed until further notice by virtue of
General Order No. 20, dated January 7, 1973, of President Ferdinand E. Marcos."
On the other hand, Presidential Proclamation No. 1102 issued on January 17, 1973 recites as a
premise thereof,inter alia, that "since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) 1 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." 2

Under the circumstances of record from which it appears that no election (or plebiscite) for the
purpose has been called and held, 3 it would be premature for now to hold that the averred ratification of
the Constitution proposed by the 1971 Constitutional Convention has met the requirements of Article XV
of the Constitution that "(S)uch 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" or of section 16 of Article XVII of the proposed Constitution itself that "(T)his Constitution shall
take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the
purpose."

With the result reached by the Court, and the rendering moot of the issues raised against the validity
of Presidential Decree No. 73, I do not deem it necessary to reach and pass upon the grave
constitutional question in its two aspects (a) whether the Constitutional Convention may assume the
power to call the plebiscite (a power historically exercised by Congress) and to appropriate funds
therefor against the Constitutional mandate lodging such power in Congress 4 and (b) whether the
Constitutional Convention may delegate such assumed power to the President absent any showing of
willful default or incapacity on the part of Congress to discharge it.

By the same token, it is unnecessary to resolve the equally grave question of whether certain
matters adopted and proposed by the 1971 Constitutional Convention were ultra vires, e.g. sections
2 and 15 of Article XVII (Transitory Provisions) providing for the delegates of said Convention to
constitute the majority of an interimNational Assembly and empowering such Assembly "upon
special call by the interim Prime Minister ..., by a majority vote of all its members, (to) propose
amendments to this Constitution (which) shall take effect when ratified in accordance with Article
Sixteen hereof", which would appear to be in violation of the accepted principles governing
constitutional conventions that they become functus officio upon completion of their function to
formulate and adopt amendments to the Constitution 5 for the people's ratification or rejection in the

manner ordained in the Constitution 6 since such convention controlled interim National Assembly may
continue proposing Constitutional amendments by mere majority vote in contrast to the regular national
assembly which would require "a vote of three-fourths of all its members" to propose such amendments. 7

ANTONIO, J., concurring:


The historical events of the last few days have rendered the petitions (G.R. Nos. L-35925, L-35929,
L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979), including the
supplemental petition moot and should be dismissed.
Without prejudice to a more extended opinion later, I concur in the view that implicit in the power of
the Constitutional Convention to propose amendments to the Constitution is its authority to order an
election at which such amendments are to be submitted to the people for ratification and, within the
narrow range implied as necessary for the business of submitting the amendments to the people, the
capacity to appropriate money for the expenses necessary to make such submittal effective.
Independently therefore of the question, whether or not the President may legislate during martial
law, it was certainly within the authority of the President to issue such measures, acting as agent for
and in behalf of the Constitutional Convention to call for a plebiscite, prescribe its terms and
appropriate money for said purpose.
The opinion that the President, as agent of the Convention, could device other forms of election to
determine the will of the majority of the people on the ratification of the proposed Constitution,
establishes a principle that is, not entirely devoid of precedent. The present Constitution of the
United States was ratified in a manner not in accord with the first Constitution of the United States,
which was the Articles of Confederation. The violation was deliberate, but Madison, however
defended the method provided for the adoption of the new Constitution by saying that it was a case
"of absolute necessity" which forced the framers of the new Constitution to resort "to the great
principle of self-preservation; to the transcendental law of nature and of nature's God, which
declares that the safety and happiness of society are the objects at which all political institutions aim,
and to which all such institutions must be sacrificed." While I agree that this precedent is never one
that would justify governmental organs in ignoring constitutional restraints, the fact is the people
themselves had already acted by adopting the procedure devised in the expression of their
sovereign will.
To the contention of one of the petitioners, that the draft of the Constitution contains provisions
beyond the power of the Constitutional Convention to submit for ratification, suffice it to state that
there is nothing that can legally prevent a convention from actually revising the entire Constitution
for, in the final analysis, it is the approval of the people that gives validity to any proposal of
amendment or revision.
I concur in the opinion that martial rule per se, in the light of contemporary events, does not warrant
the presumption that the results of the plebiscite of ratification is not a genuine and free expression
of the popular will.
It poses a question of fact which, in the absence of any judicially discoverable and manageable
standards, or where the access to relevant information is insufficient to assure the correct
determination of the issue, I do not feel that this Court is competent to act.
If the ratification of the new Constitution and the new government erected thereon, is not what it is
represented to be, the expression of the will of the majority or the people are dissatisfied, they have
ample remedy. The instrument itself provides amendment and change. For the only and proper way
in which it should be remedied, is the people acting as a body politic. These questions relate to

matters not to be settled on strict legal principles. For the new Constitution has been promulgated
and great interests have already arisen under it. The political organ in the government has
recognized it and has commenced the implementation of its provisions. Under such circumstances
the Court should therefore refrain from precipitating impossible situations which might otherwise rip
the delicate social and political fabric.
The theory of presumptive collective duress under martial rule is perhaps valid in any other clime. In
the case at bar, it flies against the stark reality of the factual setting. To insist upon it is to ignore the
historical facts that culminated in the national referendum. The people wanted a revolutionary
change. They were aware of the manifold problems of the nation its poverty, corruption, injustice,
subversion and insurgency and criminality. The sweeping and dramatic reforms during the last few
months buoyed up the hopes of the people that thru the instrumentality of a new charter these gains
of the commonweal may be conserved and further enlarged. In the ambience of such a historical
setting, it would have been presumptuous to assume that the qualified voters in the reportedly more
than fourteen million Filipinos who voted for the new charter, did so not with freedom but from fear.
Such a posture, I cannot accept, for that would demean the courage, integrity and wisdom of the
people themselves.
In all other respects, the opinion of Justice Barredo, merits my concurrence.
ESGUERRA, J., concurring:
I vote to deny all petitions seeking to prohibit the holding of the plebiscite on January 15, 1973, on
the Constitution of November 30, 1972, as provided for in Presidential Decree No. 73 of December
1, 1972. Specifically, I vote to deny the supplemental petition in G.R. No. L-35948 seeking to restrain
the Citizens Assemblies' referendum in connection with that ratification of said Constitution.
My reasons are simple and need no elaborate and lengthy discussion.
1. In the first place, these cases have been moot and academic as the holding of the plebiscite
scheduled for January 15, 1973, has been indefinitely postponed under General Order No. 20 dated
January 7, 1973. Consequently, there is nothing more to prohibit or restrain.
2. In the second place, the supplemental petition in G.R. No. L-35948 to restrain the respondents,
including three additional parties, namely Secretary Jose Rono as head of the Department of Local
Governments; Secretary Conrado Estrella, as head of the Department of Agrarian Reforms and
Secretary Guillermo de Vega, as Chairman of the National Ratification Coordinating Committee, who
were not duly served with summons and have never been heard, has been rendered futile as the
Citizens Assemblies have expressed their decisions to ratify the 1972 Constitution and said officers
have reported to the President and on the basis thereof he has announced the ratification of said
Constitution by Proclamation No. 1102, dated January 17, 1973, effective 12: 00 o'clock noon of said
date. Hence there is also nothing more to restrain or prohibit as the acts sought to be stopped have
been fully accomplished.
I do not attempt to assail the validity of Proclamation No. 1102 as the Court is not in possession of
any evidence to overthrow the veracity of the facts therein related, there being no case formally filed
with the Court attacking the validity of said Proclamation, and, moreover, the parties responsible for
the holding of the referendum or plebiscite by the Citizens Assemblies, which ratified the proposed
Constitution, have not being impleaded and afforded a chance to be heard. In brief, there is
absolutely no basis for making a pronouncement on the validity of the said proclamation, and to do
so would be simply tiding rough shod over the well-beaten road of due process of law which
basically requires notice and full and fair hearing.

Without any competent evidence I do not pretend to know more about the circumstances attending
the holding of said referendum or plebiscite and I cannot say that it was not plainfully held. I assume
that what the proclamation says on its face is true and until overcome by satisfactory evidence, of
which there is absolutely nothing before Us, I cannot subscribe to the claim that such plebiscite was
not held accordingly.
At this stage, whether or not there was a valid ratification of the 1972 Constitution cannot be
resolved without raising the legality of the Government under which we are now operating as of
January 17, 1973. Hence We would be confronted with a political question which is beyond the
jurisdiction of this Court to settle. I accept as a fait accompli that the Constitution adopted on
November 30, 1972, has been duly ratified, and I consider that any assault against it as well as the
manner of its ratification has been innocuous. Having been invested with full force and effect by the
approval of an overwhelming majority of the people, to mount an attack against it now would be
nothing less than fighting the windmills in Don Quijote fashion. I do not wish to emulate that unique
literary character and I prefer to take things in the light of the stark realities of the present. I have
always adhered to the idea that the practical approach to any question yields the happiest solution,
instead of soaring in flights of fantasies and losing one's self in idle metaphysical adventures.
FERNANDO, J., concurring and dissenting:
While I am in agreement with the resolution of the Court dismissing the petitions for their being moot
and academic, I feel that a brief separate opinion expressing my views on certain legal issues would
not be amiss, considering the transcendental character of the suits before us. Indisputably, they
involve the crucial role assumed by the Executive in the proposed submission of the new
Constitution, perhaps unavoidably thrust upon him in view of the declaration of martial law. It is
reassuring that there is a reiteration of the principle that the amending process, both as to proposal
and ratification, raises a judicial question. Notwithstanding the vigor and plausibility with which the
Solicitor-General stressed what for him is the political nature of the controversy, with considerable
support from authorities on constitutional law partial to the judicial restraint approach, it would be, for
me, a plain abdication of the trust reposed in this Court, if it would rule itself as devoid of authority to
inquire into the validity of the steps taken towards the ratification of the proposed amendments. The
most that I can concede is that where the effect of the nullification sought is to prevent the sovereign
people from expressing their will, the utmost caution and circumspection should be exercised.
Now, as to the merits of the issues that would have called for resolution, were it not for the matter
becoming moot and academic. While not squarely raised, the question of whether or not a
constitutional convention could go on meeting with martial law in force has a prejudicial aspect.
Following the ruling in Duncan v. Kahanamoku 1 that Legislature and courts continue to function even
under such period, being not merely cherished governmental institutions but indispensable to the
operation of government, there is no doubt in my mind that the same principle should likewise apply to a
constituent body. To the contention pressed by Senator Tanada, as counsel, in Tan v. Commission on
Elections, that the proposed Constitution contains provisions beyond the power of the Constitutional
Convention to submit for ratification, it seems to me a sufficient answer that once convened, the area
open for deliberation to a Constitutional Convention and thereafter to be embodied in proposed
amendments if approved by the majority, is practically limitless. 2 In that sense, it can be truly stated that
the Convention can propose anything but conclude nothing. As was intimated by Justice Makasiar,
speaking for the Court in Del Rosario v. Comelec, 3 "whether the Constitutional Convention will only
propose amendments to the Constitution or entirely overhaul the present Constitution and propose an
entirely new Constitution based on an ideology foreign to the democratic system, is of no moment;
because the same will be submitted to the people for ratification. Once ratified by the sovereign people,
there can be no debate about the validity of the new Constitution." 4 Once its work of drafting has been
completed, it could itself direct the submission to the people for ratification as contemplated in Article XV
of the Constitution. Here it did not do so. With Congress not being in session, could the President, by the

decree under question, call for such a plebiscite? Under such circumstances, a negative answer certainly
could result in the work of the Convention being rendered nugatory. The view has been repeatedly
expressed in many American state court decisions that to avoid such undesirable consequence, the task
of submission becomes ministerial, with the political branches devoid of any discretion as to the holding of
an election for that purpose. 5 Nor is the appropriation by him of the amount necessary to be considered
as offensive to the Constitution. If it were done by him in his capacity as President, such an objection
would indeed have been formidable, not to say insurmountable. 6 If the appropriation were made in his
capacity as agent of the Convention to assure that there be the submission to the people, then such an
argument loses force. The Convention itself could have done so. 7 It is understandable why it should be
thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could
conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of
being rendered financially distraught. The President then, if performing his role as its agent, could be held
as not devoid of such competence. That brings me to the argument as to the absence of proper
submission, developed with the customary learning and persuasiveness by Senators Tanada and
Salonga. With all due recognition of their forensic skill, I prefer to rely on what, for me, is the correct
principle announced in the opinion of the Chief Justice in Gonzales v. Commission on Elections: 8 "A
considerable portion of the people may not know how over 160 of the proposed maximum of
representative districts are actually apportioned by R.B.H. No. 1 among the provinces in the Philippines. It
is not improbable, however, that they are not interested in the details of the apportionment, or that a
careful reading thereof may tend in their simple minds, to impair a clear vision thereof. Upon the other
hand, those who are more sophisticated, may enlighten themselves sufficiently by reading the copies of
the proposed amendments posted in public places, the copies kept in the polling places and the text of
contested resolutions, as printed in full on the back of the ballots they will use. It is, likewise, conceivable
that as many people, if not more, may fail to realize or envisage the effect of R.B.H. No. 3 upon the work
of the Constitutional Convention or upon the future of our Republic. But, then, nobody can foretell such
effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are satisfied so
long as the electorate knows that R.B.H. No. 3 permits Congressmen to retain their seats as legislators,
even if they should run for and assume the functions of delegates to the Convention. We are impressed
by the factors considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel
that such factors affect the wisdom of Republic Act No. 4913 and that of R.B.H. Nos. 1 and
3, not the authority of Congress to approve the same. The system of checks and balances underlying the
judicial power to strike down acts of the Executive or of Congress transcending the confines set forth in
the fundamental laws is not in derogation of the principle of separation of powers, pursuant to which each
department is supreme within its own sphere. The determination of the conditions under which the
proposed amendments shall be submitted to the people is concededly a matter which falls within the
legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the
limits thereof in enacting Republic Act No. 4913." 9

Nonetheless, were it not for the fact that the matter had become moot and academic, I am for
granting the petitions in view of what, for me, is the repugnancy between an election contemplated
under Article XV of the Constitution in herein the voters can freely register their will, whether it be for
approval or disapproval, and the existence of martial law, with its connotation that dissent may be
fraught with unpleasant consequences. While it is to be admitted that the Administration has done its
best to alleviate such a state of mind, I cannot in all honesty say, although I am prepared to concede
that I may labor under a sense of undue pessimism, that the momentum of fear necessarily incident
to such a regime has been reduced to a minimum. I fail to see then the existence of that
indispensable condition of freedom that would validate the ratification process as contemplated by
the Constitution. As to the validity of Proclamation No. 1102, adherence to what for me are
fundamental concepts of judicial review precludes it this state the expression of any opinion. It
would, at the very least, be premature. 10
BARREDO, J., concurring and dissenting:

With full consciousness of the transcendental consequences of the action the Court is taking in
these cases, not only upon me personally and as a member of the Supreme Court but upon the
Court itself as the guardian of the Constitution, which all its members have solemnly sworn in the
name of God to uphold and defend, and after long and serious consideration of all aspects and
angles of the issues submitted for resolution by the parties, I have come to the sincere conviction
that the petitions herein should be dismissed, including the supplemental petition filed by petitioners
in G.R. No. L-35948, with the consequent denial of the motion for the issuance of a writ of
preliminary injunction or a temporary restraining order enjoining in effect any act which would imply
giving force and effect to the 1972 Constitution which President Ferdinand E. Marcos proclaimed as
ratified in Proclamation No. 1102 as of twelve o'clock noon on January 17, 1973. Without prejudice
to a more extended opinion later, my reasons for this conclusion are as follows:
As of today, two matters present themselves for Our immediate resolution, namely, (1) the petitions
in all of these cases praying for a writ of prohibition against the implementation of Presidential
Decree No. 73 calling for and setting the date and the manner of holding the plebiscite for the
ratification of the Constitution proposed by the 1971 Constitutional Convention, the date set being
January 15, 1973, and (2) the supplemental petition, with prayer for the issuance of a writ of
preliminary injunction or a restraining order, in G.R. No. L-35948 to enjoin whatever ratification of the
said Constitution would be proposed by the Citizens Assemblies, established under Presidential
Decrees Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would give force and effect to
such ratification, should it be proclaimed, which, by the way, everybody knows was already done at
about 11:00 o'clock A.M. on January 17, 1973.
As to No. (1), I vote to dismiss the original petitions in all these cases for the simple reason that the
alleged grounds thereof are either untenable or have been premature, if not somehow moot and
academic, at least, meanwhile that the plebiscite had not been reset. 1
(a) There is no question that the matter of whether or not Presidential Decree No. 73 is valid is a
justiciable one and not political, hence within the jurisdiction of this Court to resolve. Tolentino v.
Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is sufficient authority for this pose.
(b) On the other hand, I am of the considered view that it is not within the competence of this Court
to pass on the propriety or wisdom of any part or provision of the Constitution as proposed by the
Convention. The Convention was called for the purpose of proposing amendments to the
Constitution, and like any Constitutional Convention it was completely and absolutely free to make
any proposal, whether or not consonant with the 1935 Constitution. The theory of ultra-vires
proposals advanced by petitioners is to me without sufficient legal basis.
(c) Much less can I accept the view that the Convention's task was limited to proposing specific
amendments to become either as new parts of the existing Constitution or as replacements of
corresponding portions thereof, for even if there were any theoretical basis for petitioners' posture in
this regard, I feel safe in saying that when the people elected the delegates to the Convention and
when the delegates themselves were campaigning such limitation of the scope of their function and
objective was not in their minds. Withal, considering the number and nature of the proposals already
being publicly discussed before and after said election, to follow petitioners' suggestion would have
produced confusion and probably insurmountable difficulties even in the framing and phrasing alone
of the amendments so that they may easily and clearly jibe with the other parts of the existing
Constitution.
(d) Regarding the alleged lack of legislative power of the President to issue Presidential Decree No.
73, I maintain that independently of the issue of whether or not the President may legislate during
martial law relative to matters not connected with the requirements of suppressing the armed

insurgency and the maintenance of peace and order, it was within the prerogative of the President to
issue said decree, considering that in doing so he merely acted as agent for and on behalf of the
Constitutional Convention, which, in my opinion written for the Court in the Tolentino case, I
individually held, had the power to call for a plebiscite, prescribe its terms and appropriate money for
the purpose. Disregarding immaterial niceties of form and language, and looking to its obvious intent
and purpose, I hold that Resolution No. 5843 of the Convention, approved on November 22, 1972,
delegated to the President in plenary terms the calling of the plebiscite, and since the ordinary rules
requiring the laying down of standards in the delegation of legislative functions binding Congress do
not, to my mind, apply to the Convention, if only because the latter occupies a higher plane of
legislative authority than Congress in matters related to the accomplishment of its objectives, it
follows that Presidential Decree No. 73 was validly issued.
(e) All the other objections to said decree were rendered premature, if not somehow moot and
academic for the time being, because under General Order No. 20, dated January 7, 1973, the
President postponed the plebiscite until further notice. Such being the case, nobody could positively
say that the President would not allow Congress to pass a plebiscite law or that he would not lift
martial law by then or that the contracts, executive orders, treaties, proclamations, decrees, etc. that
are supposed to be ratified together with the Constitution itself would not be published, for the proper
information of all concerned before the next date to be fixed for the plebiscite. In other words, no one
could say that appropriate steps would not be taken to meet the objections alleged in the petitions
before the plebiscite would be actually held. It is, indeed, judicially improper to pass upon any issue
the factual setting whereof may still be materially altered.
(f) On whether or not the holding of the plebiscite during martial law would materially affect proper
submission insofar as the freedom supposed to attend it is concerned, I agree with the respondents
that this is a question of fact which cannot be pre-determined and that it would, therefore, be the
burden of the petitioners to show by evidence that such freedom had been actually and substantially
impaired. When one recalls that measures were taken by the President precisely to provide the
widest opportunity for free debate and voting, consistent with the nature and purpose of the
plebiscite but at the same time safeguarding the objectives of the martial law proclaimed by him,
which measures he had to withdraw only when in his judgment he deemed it to be so required by
public safety, it does not seem altogether logical to assume that the existence of martial law per se
deprives the people of the essence of free suffrage. Martial law implemented Philippine style, to use
an apt expression, does not carry with it necessarily all the implications thereof as these are known
in other lands and in the recorded precedents.
Coming now to No. (2), it is evident that under the theory above-referred to that as agent of the
Convention, the President could devise other forms of plebiscite to determine the will of the majority
of the people vis-a-vis the ratification of the proposed Constitution, I believe that the establishment of
the Citizens' Assemblies as a mode of such plebiscite cannot be said to be clearly beyond the
contemplation of Article XV of the Constitution of 1935. It must be observed, however, that under
Article X of the same Constitution, it is the Commission on Elections that is supposed to "have
exclusive charge of the enforcement and administration of all laws relative to the conduct of
elections ..." and this function cannot be removed from the Commission whether by Congress or by
the President.2 This constitutional point seems to have been overlooked in the proceedings in the
Assemblies, since it does not appear from any of the official documents relative thereto that the same
have been undertaken or held under the charge of the Commission.

Besides, I feel I cannot bear evidence to history and the future generations of our people that in fact,
the answering of the questions and the canvassing and reporting of the referendum in the
Assemblies throughout the country were done exactly in the manner and form that they should have
been done, in the light of traditional concepts related to plebiscites as we know them. Otherwise
stated, I am not satisfied that Article XV of the 1935 Constitution has been fully complied with. By

this, I do not mean that it was not right to use the Assemblies; what I am saying is that, on the basis
of facts I am taking judicial notice of, the procedure of answering, canvassing and reporting adopted,
which, by the way, was far from being uniform in all the Assemblies, was not up to standard in many
places, judged on the basis of the requirements of the prevailing election laws.
On the other hand, in spite of these considerations, I do not find myself in a position to deny the
factual assertion in Proclamation 1102 that more than 14 million Filipinos have manifested approval
of the proposed Constitution and would consider the same as already ratified by them. I understand
that this number was determined on the basis of sworn reports of the respective heads of the
Assemblies. Such being the case, I am faced with proof which I have no way of duly controverting
that our people have spoken. I consider it undemocratic, impractical and unrealistic to close my eyes
to that vital fact. And since in a democracy the will of the people is the supreme law, I hold that it
would be improper for the Court to enjoin any act done or to be done pursuant to the proclamation in
dispute. I believe that whatever legal flaws there might have been in the procedure pursued leading
to the issuance of said proclamation may be deemed already cured by the apparent will of the
people however imperfectly, under legal and technical standards, the same has been expressed. To
grant the prayer of petitioners now would be tantamount to defying the very sovereign people by
whom and for whom the Constitution has been ordained, absent any demonstrated facts showing
that they prefer the status quo, which the Convention was precisely called to change meaningfully, to
the wide-range reforms everybody can see are being effected in practically all levels of the
government and all sectors of society. Withal, to issue any such injunctive writ at this stage of
denouncement of national events is to court consequences too horrible to imagine.
To the possible stricture that persons less than twenty-one years of age were allowed to participate
and vote in said Assemblies, my reaction is that I am not sure that Article V of the 1935 Constitution,
viewed in the light of the perceptible universal drift towards the enfranchisement of the youth, may
not be construed as permitting legislative enlargement of the democratic base of government
authority, since the said Article does not say that those thereby qualified are the only ones who can
vote - the language being simply that "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. ...," which, to me, strictly speaking,
only guarantees the right of suffrage to those enumerated but does not deny to the legislature the
power to include others who in its wisdom it believes should also enjoy such right. In any event, it is
elementary under our election law and jurisprudence that should it appear that disqualified persons
have succeeded in voting in an election, such election is not thereby necessarily rendered wholly
illegal, but the votes of such persons are only correspondingly deducted after being duly identified.
Accordingly, on the premise that the inclusion of those below 21 is illegal, their votes may be
deducted from the 14,000,000 or so aforementioned, and I am certain no one will deny that the
remainder would still be substantially sufficient to constitute a recognizable mandate of the people,
for under normal circumstances which must be presumed, and making the most liberal estimate, the
votes of the under aged voters among them could not have been more than one-third of said
number. Indeed, at the most, if this point had been considered before the issuance of Proclamation
1102, an injunction might have issued to restrain the under aged persons from participating in the
referendum, but now that the result thereof is afait accompli, I cannot see how such a possible flaw
can be of any material consequence.
As may be noted, I have taken it upon myself to rule on the legal issues surrounding Proclamation
1102. Indeed, I feel very strongly that, as a member of the Supreme Court, it is my duty to our
people to enlighten them as to said issues. The eyes of the whole country have been pinned on Us
since the Convention approved the draft of the Constitution in question on November 30, 1972, and
the President called, on December 1, 1972, thru Presidential Decree No. 73, for a plebiscite
scheduled to be held on January 15, 1973, for its ratification. Concerned citizens purporting to speak

for the people have precisely come to the Court challenging the legality of the procedure thus
pursued as not being in consonance with the amending process specified in the 1935 Constitution
and praying that the Court enjoin the continued adoption of said procedure. Everybody knows that
they came to Us with the conviction that the Court would not hesitate to play its role as the final
authority designated by the Constitution itself to interpret and construe its provisions.
Accordingly, We gave due course to their petitions, and for two days, December 18 and 19, We
heard brilliant and learned counsel of both sides argue eloquently, even with obvious patriotic fervor
but in view of the circumstances related in the separate opinion of the Chief Justice, We were unable
to decide the cases even as late as January 13, 1973. Petitioners then came with motions urgently
seeking an early decision, and soon after, or, on January 15, 1973, petitioners in G.R. No. L-35948
filed a supplemental petition relative to the latest developments involving the creation of Citizens
Assemblies and the persistent reports indicating almost to a certainty that a proclamation would be
issued doing away with the usual plebiscite procedure and already proclaiming the proposed
Constitution as ratified and in force, on the basis alone of the favorable result of a referendum in said
Assemblies. Their main prayer was for Us to issue a writ of prohibition against the submission and
approval of the reports of the results of said referendum. We immediately required the respondents
to answer the supplemental petition not later than January 16 and set the case for hearing on
January 17 at 9:30 o'clock in the morning.
In closing his arguments before the Court that fateful morning, Senator Lorenzo Tanada, the
tenacious counsel for petitioners, pleaded earnestly, even after the Chief Justice had read to him in
open session the text of Proclamation 1102 which had just been delivered by the Secretary of
Justice, that the Court rule squarely on the issues petitioners have raised. He told Us that it is
secondary whether Our judgment should be favorable or unfavorable to petitioners, what is most
important is for the people to know whether or not the provisions of the Constitution have been
observed.
Indeed, no graver responsibility rests on the shoulders of the Court. And as I see it, We cannot shirk
that responsibility by alleging technical excuses which I sincerely believe are at best of controversial
tenability.
I cannot share the view that the validity and constitutionality of Proclamation 1102 have not been
submitted to Us for resolution in these proceedings. I maintain that for all intents and purposes, the
supplemental motion of Senator Tanada of January 15 placed those transcendental issues before
Us. Not only in his pleading but more so in his oral argument, Senator Tanada, with all the vigor of
his mind and the sincere patriotism of his heart, contended that with the creation of the Citizens
Assemblies and the referendum being conducted therein, and particularly in view of the two
questions to be answered, namely, "Do you approve of the proposed constitution?" and "Do you
want the plebiscite to be held?", there was no doubt that Article XV of the Constitution was being
bypassed and that this Court was being "short-circuited." In terms that could not have been plainer,
he pointed to the impending probability of the issuance of a proclamation of the nature of
Proclamation 1102, and he prayed eloquently, that We should act without loss of time to stop the
purported reports of the referendum so as to remove the basis for such feared eventuality. So much
so, that after the Chief Justice read the proclamation to him, he dramatically exclaimed, "I have been
confirmed." Others would have said, "Consummatum est!"
Under these circumstances, I cannot see how it can be held that We can refrain from ruling on the
legal and constitutional significance of Proclamation 1102. At the very least, the present state of the
case of Vidal Tan, et al. vs. Comelec, et al., G.R. No. L-35948, imposes upon Us the ineludible
obligation to rule whether or not We should have enjoined the submission of the reports of the
Assemblies, as demanded by petitioners, it being evident that as Senator Tanada contended said

reports were to be utilized as basis for the issuance of a proclamation declaring the proposed
Constitution as ratified and already in force. In similar past cases too numerous to cite, this Court
and all courts in the country, I dare say, have always considered the consummation of a threatened
act, after the petition to enjoin it has been submitted to the court's jurisdiction, as fit subject for its
disposition, within the same proceedings, to the extent that the courts even issue mandatory
injunctions, in appropriate cases, for the respondents to undo what has already been done without
having to hold any further hearing. It is claimed that the parties must be fully heard but have we
not heard enough from them? Has not Senator Tanada presented all his arguments in support of his
supplemental petition? And if he has not, is it the fault of the Court? Is it fair to all concerned that
such possible omission be considered as a ground for Our withholding Our judgment on what under
the law and the rules is already properly before Us for resolution? Truth to tell, I cannot imagine a
fuller ventilation of the cause of any other petitioner who has come to this Court than petitioners in
G.R. No. L-35948. Rarely has the Court held hearings for days and more unusually has it given any
counsel almost unlimited time to speak, but these We have done in these cases. Can any party ask
for more? If at all, only the respondents have not adequately presented their side insofar as the
supplemental petition is concerned, but, again, it cannot be said that they have not had the
opportunity to do so. The Acting Solicitor General has unqualifiedly filed his answer on behalf of all
the respondents, and to me, his attempt to impress the Court that the new respondents have not
been summoned and that the subject petition is premised on probabilities and conjectures is of no
moment, considering the grave importance of the issues and the urgent necessity of disposing them
expeditiously and without unnecessary loss of fateful time. Of course, I respect the reasons of my
colleagues who cannot see it my way, but as far as I am concerned, this is as appropriate a case
and an occasion as any can be to resolve all the fundamental issues raised by petitioners, and to
leave them unresolved now would be practically inviting some non-conformists to challenge the
Constitution and to keep not only the wheels of the transition at a standstill, but worse, also the
animus of the people in suspended animation fraught with anxiety, with all the dire consequences
such a situation entails.
Some legalists would call the government under the proclaimed Constitution a revolutionary
government, but the President denies that it is, because, according to him, it is to operate under a
Constitution ratified by the people. At this crucial moment in the history of the nation, We need not
bother about variant nomenclatures; these can be subjective and are, in any event, unsubstantial.
What is of supreme and utmost importance is that the people be told what exactly the situation is,
sans the veneer of what might turn out after all to be an inaccurate appellation. The people must
know the real score, and, as a member of the Supreme Court, I do not hesitate to tell them that, as I
have already explained above, in my honest opinion, the purported ratification of the Constitution
attested in Proclamation 1102 and based on the referendum among the Citizens Assemblies falls
short of being in strict conformity with the requirements of Article XV of the 1935 Constitution. I must
hasten to add, however, that such unfortunate drawback notwithstanding, and considering all other
relevant circumstances, principally, the naked proof before Us indicating that the people approve of
it, I earnestly and sincerely believe that the new Constitution is legally recognizable and should be
recognized as legitimately in force.
I reiterate I have no legal means of denying it to be a fact, as stated in the proclamation, that
14,000,000 Filipinos have manifested in the referendum in the Citizens Assemblies their approval of
this Constitution. And even if We considered that said referendum was held under the aegis of full
implementation of the martial law proclaimed by the President under Proclamation 1081, as
mandated by General Order No. 20, We would not be able to ignore that the government under this
Constitution is well organized and is in stable, effective and complete control of the whole Philippine
territory, and what is more pertinently important, that this Constitution purged as it is now of its
Achilles heel, the Interim National Assembly, may fairly be said to be acceptable generally to the
people, embodying as it does meaningful reforms designed to check, if not to eradicate the then
prevalent causes of widespread popular restiveness and activism which has already assumed

practically the proportions of an armed insurgency or rebellion somehow endangering the security
and safety of the constituted government, if not the integrity of the nation. And in connection with the
implementation of martial law thus ordered, as I have already noted earlier in this opinion, its being
done Philippine style may be of some relevance, since such enforcement is not characterized by the
rigor that the usual concept of martial law connotes, hence, any suggestion of constructive duress
relative to the proceedings in the Assemblies and the Barangays may not fully hold water. Upon
these premises, it is my considered opinion that if in any sense the present government and
Constitution may be viewed as revolutionary, because they came into being, strictly speaking, extraconstitutionally or outside the pale of the 1935 Constitution, they are nonetheless entitled to be
accorded legitimate standing, for all intents and purposes and for all concerned, under the
universally accepted principle that a revolution, whether violent or bloodless, is illegal only when it
fails to gain the support of the people. Indeed, under these circumstances, I cannot resist the
temptation of asking, is it juridically possible for this Court to declare unconstitutional and without
force and effect the very Constitution under which it presently exists? I am inclined to hold that the
answer to this question can only be in the negative. Consequently, petitioners are not entitled to any
judicial relief and, I have no alternative but to vote for the dismissal of the supplemental petition of
January 15, 1973.
In conclusion, I hold that the 1935 Constitution has pro tanto passed into history and has been
legitimately supplanted by the Constitution now in force by virtue of Proclamation 1102, issued
pursuant to the certified results of the referendum in the Citizens Assemblies all over the country
favoring its adoption and enforcement.
Long live our country, the Philippines! God bless our people, the Filipino people!
ZALDIVAR, J., dissenting:
I cannot agree with my worthy colleagues who hold the view that the petitions in all these have
become moot and academic simply because the relief prayed for by petitioners cannot be granted
after Proclamation No. 1102 was issued by the President of the Philippines. A case does not
become moot where there remain substantial rights or issues that are controverted and which are
not settled. 1 This Court has decided cases even if no positive relief, as prayed for by a party in the case,
could be granted, or even if a party has withdrawn his appeal, if the case presented to the court for
resolution is a clear violation of the Constitution or of fundamental personal rights of liberty and property. 2

In the present cases it is in the public interest that this Court renders a ruling on the transcendental
issues brought about by the petition issues which must be resolved by this Court as the guardian
of the Constitution of this Republic.
For a comprehensive appraisal of the facts and circumstances relevant to the resolution of the
issues involved in these cases, We shall narrate pertinent events, as shown in the record.
On December 1, 1972 the President of the Philippines, in his capacity as Commander-in-Chief of all
the Armed Forces of the Philippines and acting pursuant to Proclamation No. 1081, dated
September 21, 1972, 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 for the purpose. The Decree states that the same
was issued pursuant to Resolution No. 5843 of the 1971 Constitutional Convention proposing "to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the
proposed new Constitution on such appropriate date as he shall determine and providing for the
necessary funds therefor." " 3 The decree set the plebiscite for January 15, 1973 and appropriated the
sum of P15,000,000.00 to carry out the purpose of the decree. The Decree provided for the publication of

the proposed Constitution, the dissemination of information regarding the proposed Constitution, the
application of the provisions of the Election Code of 1971 to the plebiscite insofar as they are not
inconsistent with the provisions of the decree, specially stating that the provisions of said Code regarding
the right and obligations of political parties and candidates shall not apply to the plebiscite. The Decree
further provided for a calendar for the plebiscite, for the registration of voters, for the constitution of the
board of inspectors, for watchers, for precincts and polling places, for the official ballots to be used, for
the preparation and transmission of plebiscite returns, for the canvass of the returns by the city,
municipality, and the municipal district board of canvassers, for the canvass by the Commission on
Elections and the proclamation of the results by said Commission, for supplies and services needed for
the holding of the plebiscite, and on the authority given to the Commission on Elections to promulgate
rules and regulations necessary to carry out the provisions of the Decree.

On December 1, 1972, the President of the Philippines also issued General Order No. 17, ordering
and enjoining the Armed Forces of the Philippines and all other departments and agencies of the
Government to allow and encourage public and free discussions and debates on the proposed
Constitution before the plebiscite set for January 15, 1973.
During the first half of the month of December 1972, the petitioners, in the ten cases now before this
Court, filed petitions for prohibition with preliminary injunction, seeking to prevent the holding of the
plebiscite on January 15, 1973. The petitioners question the validity of Presidential Decree No. 73,
principally upon the ground that it is not in the power of the President of the Philippines to call a
plebiscite for the ratification or rejection of the proposed Constitution and to appropriate public funds
for the purpose. The petitioners also maintain that the period of only about 45 days from the date of
the approval of the proposed Constitution by the Constitutional Convention on November 30, 1972 to
January 15, 1973, was not a sufficient time for the electorate of this country to be properly informed
regarding the provisions of the proposed Constitution, and the electorate could not therefore vote
intelligently on whether to ratify or to reject the proposed Constitution, and so there could be no
proper submission of the proposed Constitution to the electorate. The petitioners further maintain
that the country being under martial law there could not be a free submission of the proposed
Constitution to the electorate. In some of the petitions, the petitioners also maintain that the
proposed Constitution contains provisions which are beyond the power of the Constitutional
Convention to adopt or to propose. All the petitioners prayed this Court to issue a writ of preliminary
injunction or restraining order to prevent the respondents in each of the petitions from implementing
Presidential Decree No. 73. This Court, however, did not issue the preliminary injunction, nor the
restraining order, prayed for. This Court required the respondents in each petition to answer the
petition, and set the cases for hearing on the petition for preliminary injunction and on the merits of
the case for December 18, 1972. Hearings were actually held for two days on December 18 and
19, 1972.
On December 31, 1972, while these cases were pending before this Court, the President of the
Philippines issued Presidential Decree No. 86 creating the Citizens Assemblies throughout the
country. Among others, Decree No. 86 provides that there is created a citizen assembly in each
barrio in municipalities, and in each district in chartered cities, provided that in the case of Manila
and other chartered cities where there are no barrios there shall be a citizen assembly in every ward;
that the citizen assemblies shall consist of all persons who are residents of the barrio, district, or
ward for at least six months, 15 years of age or over, citizens of the Philippines, and who are
registered in the list of citizens assembly members kept by the barrio, district or ward secretary. As
stated in the decree, the purpose of establishing the citizens assemblies is to broaden the base of
the citizens' participation in the democratic process and to afford ample opportunities for the citizenry
to express their views on important national issues.
On January 5, 1973 the President of the Philippines issued Presidential Decree No. 86-A which,
among others, provided for the submission to the citizens' assemblies created under Presidential

Decree No. 86 questions to be answered, and among those questions are these two: (1) "Do you
approve of the new Constitution?"; (2) "Do you still want a plebiscite to be called to ratify the new
Constitution ?"
On January 7, 1973 the President issued General Order No. 20, ordering the postponement of the
plebiscite that had been scheduled for January 15, 1973. Said general order reads as follows:
GENERAL ORDER NO. 20
WHEREAS, pursuant to Presidential Decree No. 73 dated December 1, 1972, a
plebiscite has been called on January 15, 1973 at which the proposed Constitution of
the Philippines shall be submitted to the people for ratification or rejection;
WHEREAS, Presidential Decree No. 86, dated December 31, 1972, created Citizens
Assemblies so as to afford ample opportunities for the citizenry to express their views
on important national issues;
WHEREAS, one of the questions presented to the Citizens Assemblies is: "Do you
like the plebiscite on the proposed Constitution to be held later?
WHEREAS, it is necessary to hold in abeyance the plebiscite until the people's
preference has been ascertained;
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 the plebiscite scheduled to be held on
January 15, 1973, be postponed until further notice.
I further order that the provision of Section 3 of Presidential Decree No. 73 insofar as
they allow free public discussion of the proposed Constitution, as well as my order of
December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for
the purposes of free and open debate on the proposed Constitution, be suspended in
the meantime.
Done in the City of the Manila, this 7th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.
(Sgd.) FERDINAND E.
MARCOS
President
Republic of the
Philippines
By the President:
(Sgd.) ALEJANDRO MELCHOR
Executive Secretary
As of the day when the above-quoted General Order No. 20 was issued these cases were all
pending decision before this Court.

At this juncture I am going to particularize my discussion on case G.R. No. L-35948 (Vidal Tan, et
al., petitioners vs. Commission on Elections, et al., respondents). What I say in connection with the
Vidal Tan case may also be considered in relation with the other cases before Us.
On January 12, 1973 counsel for the petitioners in the Tan case filed an "Urgent Motion For Early
Decision", alleging, among others, that it was announced that voting by the Citizens' Assemblies
would be held on January 10 to 15, 1973 whereby the Citizens' Assemblies would be asked a
number of questions, among them the following:
(1) Do you approve of 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 election would not be held, when do you want the next elections to be
called?
(6) Do you want martial law to continue?
Counsel for the petitioners also alleged that petitioners had reasons to fear that the question: "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 bypass and shortcircuit this Court before which the question regarding the validity of the plebiscite scheduled for
January 15, 1973 on the proposed Constitution was pending resolution. Counsel for petitioners also
alleged that they had reasons to fear "that if an affirmative answer to the two questions just referred
to would be reported then this Honorable Court and the entire nation would be confronted with a fait
accompli which has been attained in a highly unconstitutional and undemocratic manner;" and
"the fait accompli would consist in the supposed expression of the people approving the proposed
Constitution." Counsel further states "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" and "that in such a situation, the Philippines would be
facing a real crisis and there is a likelihood of confusion if not chaos, because then, the people and
their officials would not know which Constitution is in force." 4
On January 13, 1973 this Court ordered the Solicitor General to answer the urgent motion of the
petitioners, dated January 12, 1973.
On January 15, 1973 counsel for petitioners filed "A Supplemental Motion for Issuance of
Restraining Order and for Inclusion of Additional Respondents." The respondents sought to be
added were the Department of Local Governments and its head, Secretary Jose Rono; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; and the National
Ratification Coordinating Committee and its chairman, Guillermo de Vega. In their supplemental
motion for the issuance of restraining order enjoining the original respondents, as well as the
additional respondents, and their deputies, subordinates and/or substitutes from collecting,
certifying, announcing and reporting to the President or other officials concerned, the Citizens'

Assembly referendum results that would be obtained in the voting held during the period comprised
between January 10 and January 15, 1973, particularly on the two questions: (1) "Do you approve of
the new Constitution?", and (2) "Do you still want a plebiscite to be called for the ratification of the
new Constitution?" Counsel for petitioners further alleged that for lack of material time the
appropriate amended petition to include the new respondents could not be completed because the
submission of the proposed Constitution to the Citizens' Assemblies was not made known to the
public until January 11, 1973, but nevertheless the new respondents could properly be included
because in their petition petitioners prayed "for the annulment not only of Presidential Decree No. 73
but also of any similar decree, proclamation, order or instruction" so that Presidential Decree Nos. 86
(and 86-A) in so far at least as they attempt to submit the proposed Constitution to a plebiscite by
the Citizens' Assemblies are properly in issue in the case, and those who enforce, implement and
carry out said Presidential decrees and the instructions incidental thereto clearly fall within the scope
of the petition. Moreover, counsel for petitioners alleges that in the original petition they prayed for
the issuance of a writ of preliminary injunction restraining not only the original respondents, but also
their agents from the performance of acts, implementing, or tending to implement, Presidential
Decree No. 73 or any other similar decree, order, instructions, or proclamation in relation to the
holding of the plebiscite in question on January 15, 1973, and that they had also prayed for such
other relief which may be just and equitable. Counsel for petitioners stressed the plea that unless the
petition is decided immediately and the respondents were restrained or enjoined from collecting,
certifying, reporting, or announcing to the President the result of the alleged voting of the so-called
Citizens' Assemblies irreparable damage would be caused to the Republic of the Philippines, to the
Filipino people and to the cause of freedom and democracy, because after the result of the
supposed voting on the two precise questions that they mentioned shall have been announced, a
conflict would arise between those who maintain that the 1935 Constitution is still in force, on the
one hand, and those who maintain that the old Constitution is superseded by the proposed
Constitution on the other hand, thereby creating confusion if not chaos; and that even the jurisdiction
of this Court would be subject to serious attacks because the advocates of the theory that the
proposed Constitution had been ratified by reason of the announcement of the results of the
proceedings of the Citizens Assemblies would argue that General Order No. 3, which would also be
deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, had placed
Presidential Decrees No. 73 and No. 86 (and 86-A) beyond the reach and jurisdiction of this Court.
This Court required the Solicitor General to comment on the supplemental motion and set the said
motion for hearing on January 17, 1973.
On January 17, 1973 the urgent motion of January 12, 1973 and the supplemental motion for the
issuance of the restraining order and the inclusion of additional respondents were heard on oral
arguments by counsel for the petitioners and the Solicitor General. Towards the end of the hearing,
and while counsel for the petitioners was answering questions from Members of this Court, the Chief
Justice received a copy of Proclamation No. 1102 of the President of the Philippines "announcing
the ratification by the Filipino people of the Constitution proposed by the 1971 Constitutional
Convention." The Chief Justice read in open court, for the record, Proclamation No. 1102. Said
Proclamation reads as follows:
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 sixtyone (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 Barangay (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 Barangay (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.
FERDI
NAND
E.
MARC
OS
Preside
nt of
the

Philippi
nes
By the President:
ALEJANDRO MELCHOR
Executive Secretary
And so, what the petitioners had feared, as expressed in their urgent motion for early decision and in
their supplemental motion to issue restraining order, etc., that the results of the voting in the Citizens'
Assemblies might be taken as a basis for proclaiming the ratification of the proposed Constitution,
had actually happened. And so, what the petitioners in all the ten cases now before Us among
them civic leaders, newspapermen, Senators and Congressmen, Members of the 1971
Constitutional Convention, and professionals had tried to prevent from happening, that is, the
proclamation of the ratification of the proposed constitution on the basis of the affirmative votes that
might be cast in the plebiscite that was set for January 15, 1973 pursuant to Presidential Decree No.
73, the legality of which decree was being questioned by petitioners, had happened.
The crucial question before this Court is whether or not Presidential Proclamation No. 1102
announcing the ratification of the proposed Constitution of 1972 is in accordance with the
Constitution and has the effect of making the proposed Constitution of 1972 effective and in force as
of January 17, 1973 when the proclamation was issued. This is, I believe, the vital question that this
Court is called upon to resolve, and it is for this reason that I believe that this case has not been
moot and academic. While it is true that the relief prayed for by the petitioners, that the original
respondents be enjoined from implementing Presidential Decree No. 73, cannot now be granted,
Proclamation No. 1102 nevertheless has the effect of consummating the ratification of the proposed
Constitution the very event which the petitioners had precisely sought to prevent from happening
when they filed their petitions. Presidential Proclamation No. 1102 has a tremendous effect upon the
political, economic and social life of the people of this country. I believe, therefore, that this Court
should not indulge in the niceties of procedural technicalities and evade the task of declaring
whether or not the Constitution proposed by 1971 Convention has been validly ratified as announced
in said Proclamation No. 1102. This Court is called upon to give the people of this Republic the
proper orientation regarding the effect of said Proclamation No. 1102. That orientation will only come
about when this Highest Court of the land has rendered a ruling on whether or not said Proclamation
No. 1102 is valid.
I cannot agree with the view of some of my colleagues that this Court cannot make a ruling on the
question of whether or not Proclamation No. 1102 is valid, because the validity of said proclamation
is not the matter that is squarely presented to this Court for resolution by the petitions in these
cases. I believe, however, that this Court should not close its eyes to the fact that in the ten petitions
that are before this Court the uniform prayers of the petitioners are to enjoin the implementation of
Presidential Decree No. 73 and to nullify said decree precisely in order to prevent the ratification
of the Constitution proposed by the 1971 Convention in a manner that is not in accordance with the
Constitution and the law. So much so that in G.R. No. L-35948 (Tan, et al. v. Comelec, et al.) the
petitioners, among others, prayed that judgment be rendered declaring" ... Presidential Decree No.
73 or any similar decree, proclamation, order or instruction unconstitutional, null and void and
making the writ of preliminary injunction permanent." It is not difficult to understand that the purpose
of the petitioners was to invalidate any and all orders, decrees and proclamations that are corollary
or related to Presidential Decree No. 73 which had for its main purpose to submit the Constitution
proposed by the 1971 Convention to a plebiscite on January 15, 1973 and thereby determine
whether the people approve or reject the proposed Constitution. As We have adverted to, the
objective of the petitioners was to prevent the ratification of the proposed constitution in a manner

that is offensive to the Constitution and the law. All orders, decrees, instructions, or proclamations
made after the issuance of Presidential Decree No. 73, which have for their purpose either to
supplement Presidential Decree No. 73 or to accomplish through other means or methods what
Presidential Decree No. 73 was issued for, are encompassed within the prayer of petitioners to
nullify "any similar decree, proclamation, order, or instruction". Presidential Decrees Nos. 86 and 86A are such "similar" decrees, because, as it turned out, Presidential Decree No. 86 provided for the
organization of the citizens' assemblies which became the forums where the question of whether to
ratify or to reject the proposed Constitution was submitted; and, as it turned out, Presidential Decree
No. 86-A provided for the very question which otherwise the voters would have been asked to
answer "Yes" or "No" in the plebiscite which had been provided for in Presidential Decree No. 73. In
other words, Presidential Decree No. 86 supplanted Presidential Decree No. 73 in so far as the latter
decree provided for the forum where the question was to be asked; while Presidential Decree No.
86-A supplanted Presidential Decree No. 73 in so far as the latter decree provided for the question
to be asked regarding the proposed Constitution. And finally because Presidential Proclamation No.
1102 has for its basis what was done pursuant to Presidential Decrees Nos. 86 and 86-A, it follows
that Proclamation No. 1102 is just the "proclamation" that the petitioners sought to nullify or
invalidate if issued.
I believe that the effects of Proclamation No. 1102 have an intimate bearing on the objectives of the
petitioners when they filed the instant petitions for prohibition, and so said proclamation has to be
considered along with all the issues raised by the petitioners in the cases at bar. More so, because
said Proclamation No. 1102 was read into the record by the Chief Justice of this Court during the
hearing of L-35948 (Tan vs. Comelec), in open court, on January 17, 1973. I believe that this Court
must not ignore Proclamation No. 1102 in relation to the matters and to the issues ventilated before
this Court. Proclamation No. 1102 was formally brought to the attention of this Court. It is my view
that this Court should not evade its duty of defining for the benefit of the people of this Republic the
legal and constitutional nature and effects of that proclamation. I, for one, as a humble member of
this Court, feel it my duty to say what I think, and believe, about Proclamation No. 1102. I do this not
because of any desire on my part to obstruct the workings of the agencies and instrumentalities of
our Government, or to foster among the people in our country an attitude of disrespect or disloyalty
towards the constituted authorities that presently run the affairs of our Government. I am only doing
what I believe is my sworn duty to perform.
The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines,
which reads:
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 the 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.
It is in consonance with the above-quoted provision of the 1935 Constitution that on March 16, 1967,
the Congress of the Philippines passed Resolution No. 2 calling a convention to propose
amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
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 which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.

It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention there was a clear mandate that the amendment proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the people for their ratification
as provided in the Constitution.
This Court, in the case of Tolentino vs. Commission on Elections, L-35140, October 16, 1971 (41
SCRA 715), speaking through Mr. Justice Barredo, said:
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 coup d' etat. As to such kind of conventions, it is absolutely true that
the convention is completely without restraint 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 ...
xxx xxx xxx
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.
In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that
as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines the President proclaimed that the Constitution proposed by the
1971 Convention has been ratified and has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 was not complied with. It is not necessary that evidence be
produced before this Court to show that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocably states that the proposed Constitution of
1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the qualified and registered voters of
the country would cast their votes, where official ballots prepared for the purpose are used, where
the voters would prepare their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country, where the election is conducted
by election inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the

amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to
the Constitution to increase the number of Members of the House of Representatives and to allow
the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.
I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding of an election to ratify or reject an amendment to the
Constitution, has not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard, or, in violation, of the provisions of Section 1 of Article V of
the 1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plesbiscite to be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the
power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
An election is the embodiment of the popular will, the expression of the sovereign
power of the people. In common parlance an election is the act of casting and
receiving the ballots, counting them, and making the return." (Hontiveros vs. Altavas,
24 Phil. 632, 637).
Election" implies a choice by an electoral body at the time and substantially in the
manner and with the safeguards provided by law with respect to some question or
issue. (Leffel v. Brown, Com. Pl., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at
footnote 6.5).
... the statutory method whereby qualified voters or electors pass on various public
matters submitted to them the election of officers, national, state, county, township
the passing on various other questions submitted for their determination (29
C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5,
241 Iowa 358).
Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W.
2d 438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234).
The right to vote may be exercised only on compliance with such statutory
requirements as have been set up by the legislature, (People ex rel. Rago v. Lipsky
63 N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d
169 in 29 C.J.S. 38). (Emphasis supplied)

In this connection I herein quote the pertinent provisions of the Election Code of 1971:
Sec. 2. Applicability of this Act. All elections of Public officers except barrio
officials and plebiscitesshall be conducted in the manner provided by this Code.
Sec. 99. Necessity of registration to be entitled to vote. In order that a qualified
voter may vote in any regular or special election or in any plebiscite, he must be
registered in the permanent list of voters for the city, municipality or municipal district
in which he resides: Provided, That no person shall register more than once without
first applying for cancellation of his previous registration. (Emphasis supplied). 3)
Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388).
It is stated in Proclamation No. 1102 that the voting was done by the members of citizens
assemblies who are 15 years of age or over. Under the provision of Section 1 of Article V of the
1935 Constitution the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the barangays, except in very few
instances, was done by the raising of hands by the persons indiscriminately gathered to participate
in the voting, where even children below 15 years of age were included. This is a matter of common
observation, or of common knowledge, which the Court may take judicial notice of. To consider the
votes in the barangays as expressive of the popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which would
mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the supreme law of the land, should be
ratified or not, must not be decided by simply gathering people and asking them to raise their hands
in answer to the question of whether they vote for or against a proposed Constitution. The election
processes as provided by law should be strictly observed in determining the will of the sovereign
people in a democracy. In our Republic the will of the people must be expressed through the ballot in
a manner that is provided by law.
It is said that in a democracy the will of the people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be expressed in a manner as the law and the demands of
a well-ordered society require. The rule of law must prevail even over the apparent will of the
majority of the people, if that will had not been expressed, or obtained, in accordance with the law.
Under the rule of law public questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of the adoption of a constitution or in the ratification of an
amendment to the Constitution.
The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified or not:
When it is said that "the people" have the right to alter or amend the constitution, it
must not be understood that this term necessarily includes all the inhabitants of the
state. Since the question of the adoption or rejection of a proposed new constitution
or constitutional amendment must be answered by a vote, the determination of it
rests with those who, by the existing constitution, are accorded the right of suffrage,
But the qualified electors must be understood in this, as in many other cases, as
representing those who have not the right to participate in the ballot. If a constitution
should be abrogated, and a new one adopted, by the whole mass of people in a
state, acting through representatives not chosen by the "people" in the political sense
of the term, but by the general body of the populace, the movement would be extralegal. (Black's Constitutional Law, Second Edition, pp. 47-48).

The theory of our political system is that the ultimate sovereignty is in the people,
from whom springs all legitimate authority. The people of the Union created a
national constitution, and conferred upon it powers of sovereignty over certain
subjects, and the people of each State created a State government, to exercise the
remaining powers of sovereignty so far as they were disposed to allow them to be
exercised at all. By the constitution which they establish, they not only tie up the
hands of their official agencies, but their own hands as well; and neither the officers
of the State, nor the whole people as an aggregate body, are at liberty to take action
in opposition to this fundamental law. (Cooley's Constitutional Limitations, 8th
Edition, Vol. I, p, 81 cited in Graham v. Jones, 3 So. 2d. 761, 782).
The theory that a favorable vote by the electorate, however unanimous, on a
proposal to amend a constitution, may cure, render innocous, all or any antecedent
failures to observe commands of that Constitution in respect of the formulation or
submission of proposed amendments thereto, does not prevail in Alabama, where
the doctrine of the stated theory was denied, in obvious effect, by the pronouncement
60 years ago of broad, wholesome constitutional principles in Collier v.
Friersonsupra, as quoted in the original opinion, ante. The people themselves are
bound by the Constitution; and, being so bound, are powerless, whatever their
numbers, to change or thwart its mandates, except through the peaceful means of a
constitutional convention, or of amendment according to the mode therein
prescribed, or through the exertion of the original right of revolution. The Constitution
may be set aside by revolution, but it can only be amended in the way it provides,"
said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103.
Johnson v. Craft, et al., 87 So. 375, 385, 387 On Rehearing).
The fact that a majority voted for the amendment, unless the vote was taken as
provided by the Constitution, is not sufficient to make a change in that instrument.
Whether a proposed amendment has been legally adopted is a judicial question, for
the court must uphold and enforce the Constitution as written until it is amended in
the way which it provides for. Wood v. Tooker 15 Mont. 8, 37 Pac. 840, 25 L.R.A.
560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving
Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac.
1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99,
104).
Provisions of a constitution regulating its own amendment, ... are not merely
directory, but are mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed amendment. These provisions
are as binding on the people as on the legislature, and the former are powerless by
vote of acceptance to give legal sanction to an amendment the submission of which
was made in disregard of the limitations contained in the constitution. (16 C.J.S. 3536 cited in Graham v. Jones, 3 So. 2d 761, 782).
It is said that chaos and confusion in the governmental affairs of the State will result
from the Court's action in declaring the proposed constitutional amendment void.
This statement is grossly and manifestly inaccurate. If confusion and chaos should
ensue, it will not be due to the action of the Court but will be the result of the failure of
the drafters of the joint resolution to observe, follow and obey the plain essential
provisions of the Constitution. Furthermore, to say that, unless the Court disregards
its sworn duty to enforce the Constitution, chaos and confusion will result, is an
inherently weak argument in favor of the alleged constitutionality of the proposed
amendment. It is obvious that, if the Court were to countenance the violations of the

sacramental provisions of the Constitution, those who would thereafter desire to


violate it and disregard its clear mandatory provisions would resort to the scheme of
involving and confusing the affairs, of the State and then simply tell the Court that it
was powerless to exercise one of its primary functions by rendering the proper
decree to make the Constitution effective, (Graham v. Jones, 3 So. 2d. 761, 793794).
In our jurisprudence I find an instance where this Court did not allow the will of the majority to
prevail, because the requirements of the law were not, complied with. In the case of Monsale v.
Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of
Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for the filing of the same. However, on October 10,
1947, after the period for the filing of certificates of candidacy, Monsale withdrew his certificate of
candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by
withdrawing the withdrawal of his certificate of candidacy. The Commission on Elections, on
November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless
proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes
cast for Monsale upon the ground that the votes cast for him were stray votes, because he was
considered as having no certificate of candidacy. On the other hand, the boards of inspectors
credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the
election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the
proceedings in the trial court it appeared that Monsale had obtained 2,877 votes while Nico obtained
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the
decision of the lower court. This Court declared that because Monsale withdrew his certificate of
candidacy his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not
restore the effectiveness of his certificate of candidacy, and this court declared Nico the winner in
spite of the fact that Monsale had obtained more votes than he.
We have cited this Monsale case to show that the will of the majority of the voters would not be
given effect, as declared by this Court, if certain legal requirements have not been complied with in
order to render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the
basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was
reported that 14,976,561 members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law must
be upheld.
My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
to exercise their right of choice, because of the existence of martial law in our country. The same
ground holds true as regards the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 13 in so far as they allow free
public discussion of the proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open
debate on the proposed constitution, be suspended in the meantime." 5 It is, therefore, my view that
voting in the barangays on January 10-15, 1973 was not free, and so this is one added reason why the

results of the voting in the barangays should not be made the basis for the proclamation of the ratification
of the proposed Constitution.

It is my view, therefore, that Proclamation No. 1102 is repugnant to the 1935 Constitution, and so it
is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971
Constitutional Convention should be considered as not yet ratified by the people of this Republic,
and so it should not be given force and effect.
During the deliberation of these cases by this Court, a suggestion was made that because of the
transcendental effect of Proclamation No. 1102 on the country, the petitioners in these cases,
specially the petitioners in L-35948 (Vidal Tan, et al. vs. Comelec, et al.), be given a period of ten
days to move in the premises, considering that the issuance of Proclamation No. 1102 came as a
surprise to the petitioners and they had no opportunity to define their stand on said Proclamation in
relation to their petitions. The majority of the Court, however, were not in favor of the idea. I
expressed myself, and I so express now, that I am in favor of granting the petitioners the opportunity
to articulate their stand regarding Proclamation No. 1102 so that the objection of some members of
this Court to pass upon the validity of said proclamation upon the ground that it is not in issue in
these cases may be met, and so that the validity of Proclamation No. 1102, and the question of
whether or not the proposed 1972 Constitution has been validly ratified, may be resolved by this
Court once and for all.
At any rate, whether the petitioners are granted opportunity to define their stand on Proclamation No.
1102, or not, I humbly submit this opinion for whatever if may be worth, with the hope that the
officials and the citizens of this country will take note of it, and ponder over it. I am only doing my
duty according to the light that God has given me.

Separate Opinions
MAKALINTAL and CASTRO, JJ., concurring:
The principal relief prayed for in the petition in G.R. NO. L-35948 is to declare "Sections 2, 3 (par 2),
and 12 of Article XVII, of the 1972 Draft on proposed Constitution approved by the 1971
Constitutional Convention on November 30, 1972 as well as Presidential Decree No. 73 or any
similar decree, proclamation, order or instruction unconstitutional, null and void, ..." Basically,
although couched in different language, it is the same relief sought in the other petitions.
Article XVII contains the transitory provisions. Section 2 thereof refers to the membership of the
interim National Assembly, which includes, among others, "those Delegates to the (1971)
Constitutional Convention who have opted to serve therein by voting affirmatively for this Article."
Section 3 (par. 2) provides that "(A)ll 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." And Section 12 states in part: "All treaties,
executive agreements, and contracts entered into by the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations, are hereby
recognized as legal, valid, and binding ..."

Presidential Decree No. 73, issued on December 1, 1972, called for a plebiscite to be held on
January 15, 1973, wherein the proposed Constitution would be submitted for ratification. At the same
time it appropriated the sum of P15,000,000.00 for that purpose. It was primarily to stop the said
plebiscite from being held that these petitions were filed.
The specific grounds alleged in the petition in G.R. No. L-35948 to support the relief prayed for
which are fairly representative of the others, read as follows:
I. The President of the Philippines has no power to call a plebiscite for the ratification
or rejection of the 1972 Draft; neither has he the power to appropriate funds for the
holding of the said plebiscite.
II. The 1972 Draft is vague and incomplete. It makes an unconstitutional delegation
of power. And it contains provisions which were beyond the power of the convention
to enact. All these have made the 1972 Draft unfit for "proper submission" to the
people.
III. The period of time between November 30, 1972 when the 1972 Draft was
approved, and January 15, 1973, the date the plebiscite will be held, is too
inadequate for the people to be informed of the contents of the 1972 Draft, and to
study and discuss them so that they could thereafter intelligently cast their vote.
Towards the end of December 1972 it was announced in the newspapers that the President had
postponed the plebiscite to a date to be fixed later, although tentatively February 19 and March 5,
1973 were mentioned. The announcement was made officially in General Order No. 20, dated
January 7, 1973. Then on January 17, 1973 the President issued Proclamation No 1102, certifying
that the proposed Constitution had been ratified by the Citizens Assemblies created under
Presidential Decree No. 86, issued on December 31, 1972, and that therefore it had become
effective.
In view of the foregoing developments which supervened after the petitions herein and the answers
thereto were filed and the cases argued by the parties, the issues raised in grounds Nos. I and III
abovequoted have become moot. The plebiscite sought to be enjoined did not take place on January
15, 1973. Indeed, its postponement to some indefinite date in the future rendered the petition also
premature. But of course whether the petition is moot or premature makes no material difference as
far as these cases are concerned, since the announced ratification of the proposed Constitution by
the Citizens Assemblies has made it unlikely that any plebiscite will be held.
With respect to ground No. II we are of the opinion that the question of whether or not the proposals
referred to by the petitioners, specifically Secs. 2, 3 (par. 2) and 12, were proper for submission to
the people for ratification has likewise become moot because of the President's Proclamation No.
1102 certifying that such ratification has already taken place. If they may be assailed at all as invalid
it should be not as mere proposals by the Convention but already as provisions of the Constitution,
and certainly not in the present cases in the state in which they have been submitted for decision.
There was an attempt on the part of counsel for the petitioner in G.R. No. L-35948 during the oral
argument on his urgent motion for early decision to question the validity of Proclamation No. 1102.
This question is not within the purview of the petition and involves issues which have neither been
raised nor argued herein, having arisen in a new and different setting and frame of reference, and
hence may only be ventilated, if at all, in an appropriate case or at least through appropriate
pleadings so that the parties may be duly heard.

We therefore vote to dismiss the petitions.


TEEHANKEE, J., concurring:
Without prejudice to the filing of a separate extended opinion, I concur with the Chief Justice in his
separate opinion and add the following brief comments.
The Solicitor General's Office on behalf of respondents manifested as of its last comment of January
16, 1973 that "(W)ith respect to the statement in the Joint Manifestation that Presidential Decree No.
73 which calls for the holding of the plebiscite on January 15, 1973 still stands, the plebiscite
scheduled to be held on January 15, 1973 has been postponed until further notice by virtue of
General Order No. 20, dated January 7, 1973, of President Ferdinand E. Marcos."
On the other hand, Presidential Proclamation No. 1102 issued on January 17, 1973 recites as a
premise thereof,inter alia, that "since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) 1 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." 2

Under the circumstances of record from which it appears that no election (or plebiscite) for the
purpose has been called and held, 3 it would be premature for now to hold that the averred ratification of
the Constitution proposed by the 1971 Constitutional Convention has met the requirements of Article XV
of the Constitution that "(S)uch 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" or of section 16 of Article XVII of the proposed Constitution itself that "(T)his Constitution shall
take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the
purpose."

With the result reached by the Court, and the rendering moot of the issues raised against the validity
of Presidential Decree No. 73, I do not deem it necessary to reach and pass upon the grave
constitutional question in its two aspects (a) whether the Constitutional Convention may assume the
power to call the plebiscite (a power historically exercised by Congress) and to appropriate funds
therefor against the Constitutional mandate lodging such power in Congress 4 and (b) whether the
Constitutional Convention may delegate such assumed power to the President absent any showing of
willful default or incapacity on the part of Congress to discharge it.

By the same token, it is unnecessary to resolve the equally grave question of whether certain
matters adopted and proposed by the 1971 Constitutional Convention were ultra vires, e.g. sections
2 and 15 of Article XVII (Transitory Provisions) providing for the delegates of said Convention to
constitute the majority of an interimNational Assembly and empowering such Assembly "upon
special call by the interim Prime Minister ..., by a majority vote of all its members, (to) propose
amendments to this Constitution (which) shall take effect when ratified in accordance with Article
Sixteen hereof", which would appear to be in violation of the accepted principles governing
constitutional conventions that they become functus officio upon completion of their function to
formulate and adopt amendments to the Constitution 5 for the people's ratification or rejection in the
manner ordained in the Constitution 6 since such convention controlled interim National Assembly may
continue proposing Constitutional amendments by mere majority vote in contrast to the regular national
assembly which would require "a vote of three-fourths of all its members" to propose such amendments. 7

ANTONIO, J., concurring:

The historical events of the last few days have rendered the petitions (G.R. Nos. L-35925, L-35929,
L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979), including the
supplemental petition moot and should be dismissed.
Without prejudice to a more extended opinion later, I concur in the view that implicit in the power of
the Constitutional Convention to propose amendments to the Constitution is its authority to order an
election at which such amendments are to be submitted to the people for ratification and, within the
narrow range implied as necessary for the business of submitting the amendments to the people, the
capacity to appropriate money for the expenses necessary to make such submittal effective.
Independently therefore of the question, whether or not the President may legislate during martial
law, it was certainly within the authority of the President to issue such measures, acting as agent for
and in behalf of the Constitutional Convention to call for a plebiscite, prescribe its terms and
appropriate money for said purpose.
The opinion that the President, as agent of the Convention, could device other forms of election to
determine the will of the majority of the people on the ratification of the proposed Constitution,
establishes a principle that is, not entirely devoid of precedent. The present Constitution of the
United States was ratified in a manner not in accord with the first Constitution of the United States,
which was the Articles of Confederation. The violation was deliberate, but Madison, however
defended the method provided for the adoption of the new Constitution by saying that it was a case
"of absolute necessity" which forced the framers of the new Constitution to resort "to the great
principle of self-preservation; to the transcendental law of nature and of nature's God, which
declares that the safety and happiness of society are the objects at which all political institutions aim,
and to which all such institutions must be sacrificed." While I agree that this precedent is never one
that would justify governmental organs in ignoring constitutional restraints, the fact is the people
themselves had already acted by adopting the procedure devised in the expression of their
sovereign will.
To the contention of one of the petitioners, that the draft of the Constitution contains provisions
beyond the power of the Constitutional Convention to submit for ratification, suffice it to state that
there is nothing that can legally prevent a convention from actually revising the entire Constitution
for, in the final analysis, it is the approval of the people that gives validity to any proposal of
amendment or revision.
I concur in the opinion that martial rule per se, in the light of contemporary events, does not warrant
the presumption that the results of the plebiscite of ratification is not a genuine and free expression
of the popular will.
It poses a question of fact which, in the absence of any judicially discoverable and manageable
standards, or where the access to relevant information is insufficient to assure the correct
determination of the issue, I do not feel that this Court is competent to act.
If the ratification of the new Constitution and the new government erected thereon, is not what it is
represented to be, the expression of the will of the majority or the people are dissatisfied, they have
ample remedy. The instrument itself provides amendment and change. For the only and proper way
in which it should be remedied, is the people acting as a body politic. These questions relate to
matters not to be settled on strict legal principles. For the new Constitution has been promulgated
and great interests have already arisen under it. The political organ in the government has
recognized it and has commenced the implementation of its provisions. Under such circumstances
the Court should therefore refrain from precipitating impossible situations which might otherwise rip
the delicate social and political fabric.

The theory of presumptive collective duress under martial rule is perhaps valid in any other clime. In
the case at bar, it flies against the stark reality of the factual setting. To insist upon it is to ignore the
historical facts that culminated in the national referendum. The people wanted a revolutionary
change. They were aware of the manifold problems of the nation its poverty, corruption, injustice,
subversion and insurgency and criminality. The sweeping and dramatic reforms during the last few
months buoyed up the hopes of the people that thru the instrumentality of a new charter these gains
of the commonweal may be conserved and further enlarged. In the ambience of such a historical
setting, it would have been presumptuous to assume that the qualified voters in the reportedly more
than fourteen million Filipinos who voted for the new charter, did so not with freedom but from fear.
Such a posture, I cannot accept, for that would demean the courage, integrity and wisdom of the
people themselves.
In all other respects, the opinion of Justice Barredo, merits my concurrence.
ESGUERRA, J., concurring:
I vote to deny all petitions seeking to prohibit the holding of the plebiscite on January 15, 1973, on
the Constitution of November 30, 1972, as provided for in Presidential Decree No. 73 of December
1, 1972. Specifically, I vote to deny the supplemental petition in G.R. No. L-35948 seeking to restrain
the Citizens Assemblies' referendum in connection with that ratification of said Constitution.
My reasons are simple and need no elaborate and lengthy discussion.
1. In the first place, these cases have been moot and academic as the holding of the plebiscite
scheduled for January 15, 1973, has been indefinitely postponed under General Order No. 20 dated
January 7, 1973. Consequently, there is nothing more to prohibit or restrain.
2. In the second place, the supplemental petition in G.R. No. L-35948 to restrain the respondents,
including three additional parties, namely Secretary Jose Rono as head of the Department of Local
Governments; Secretary Conrado Estrella, as head of the Department of Agrarian Reforms and
Secretary Guillermo de Vega, as Chairman of the National Ratification Coordinating Committee, who
were not duly served with summons and have never been heard, has been rendered futile as the
Citizens Assemblies have expressed their decisions to ratify the 1972 Constitution and said officers
have reported to the President and on the basis thereof he has announced the ratification of said
Constitution by Proclamation No. 1102, dated January 17, 1973, effective 12: 00 o'clock noon of said
date. Hence there is also nothing more to restrain or prohibit as the acts sought to be stopped have
been fully accomplished.
I do not attempt to assail the validity of Proclamation No. 1102 as the Court is not in possession of
any evidence to overthrow the veracity of the facts therein related, there being no case formally filed
with the Court attacking the validity of said Proclamation, and, moreover, the parties responsible for
the holding of the referendum or plebiscite by the Citizens Assemblies, which ratified the proposed
Constitution, have not being impleaded and afforded a chance to be heard. In brief, there is
absolutely no basis for making a pronouncement on the validity of the said proclamation, and to do
so would be simply tiding rough shod over the well-beaten road of due process of law which
basically requires notice and full and fair hearing.
Without any competent evidence I do not pretend to know more about the circumstances attending
the holding of said referendum or plebiscite and I cannot say that it was not plainfully held. I assume
that what the proclamation says on its face is true and until overcome by satisfactory evidence, of
which there is absolutely nothing before Us, I cannot subscribe to the claim that such plebiscite was
not held accordingly.

At this stage, whether or not there was a valid ratification of the 1972 Constitution cannot be
resolved without raising the legality of the Government under which we are now operating as of
January 17, 1973. Hence We would be confronted with a political question which is beyond the
jurisdiction of this Court to settle. I accept as a fait accompli that the Constitution adopted on
November 30, 1972, has been duly ratified, and I consider that any assault against it as well as the
manner of its ratification has been innocuous. Having been invested with full force and effect by the
approval of an overwhelming majority of the people, to mount an attack against it now would be
nothing less than fighting the windmills in Don Quijote fashion. I do not wish to emulate that unique
literary character and I prefer to take things in the light of the stark realities of the present. I have
always adhered to the idea that the practical approach to any question yields the happiest solution,
instead of soaring in flights of fantasies and losing one's self in idle metaphysical adventures.
FERNANDO, J., concurring and dissenting:
While I am in agreement with the resolution of the Court dismissing the petitions for their being moot
and academic, I feel that a brief separate opinion expressing my views on certain legal issues would
not be amiss, considering the transcendental character of the suits before us. Indisputably, they
involve the crucial role assumed by the Executive in the proposed submission of the new
Constitution, perhaps unavoidably thrust upon him in view of the declaration of martial law. It is
reassuring that there is a reiteration of the principle that the amending process, both as to proposal
and ratification, raises a judicial question. Notwithstanding the vigor and plausibility with which the
Solicitor-General stressed what for him is the political nature of the controversy, with considerable
support from authorities on constitutional law partial to the judicial restraint approach, it would be, for
me, a plain abdication of the trust reposed in this Court, if it would rule itself as devoid of authority to
inquire into the validity of the steps taken towards the ratification of the proposed amendments. The
most that I can concede is that where the effect of the nullification sought is to prevent the sovereign
people from expressing their will, the utmost caution and circumspection should be exercised.
Now, as to the merits of the issues that would have called for resolution, were it not for the matter
becoming moot and academic. While not squarely raised, the question of whether or not a
constitutional convention could go on meeting with martial law in force has a prejudicial aspect.
Following the ruling in Duncan v. Kahanamoku 1 that Legislature and courts continue to function even
under such period, being not merely cherished governmental institutions but indispensable to the
operation of government, there is no doubt in my mind that the same principle should likewise apply to a
constituent body. To the contention pressed by Senator Tanada, as counsel, in Tan v. Commission on
Elections, that the proposed Constitution contains provisions beyond the power of the Constitutional
Convention to submit for ratification, it seems to me a sufficient answer that once convened, the area
open for deliberation to a Constitutional Convention and thereafter to be embodied in proposed
amendments if approved by the majority, is practically limitless. 2 In that sense, it can be truly stated that
the Convention can propose anything but conclude nothing. As was intimated by Justice Makasiar,
speaking for the Court in Del Rosario v. Comelec, 3 "whether the Constitutional Convention will only
propose amendments to the Constitution or entirely overhaul the present Constitution and propose an
entirely new Constitution based on an ideology foreign to the democratic system, is of no moment;
because the same will be submitted to the people for ratification. Once ratified by the sovereign people,
there can be no debate about the validity of the new Constitution." 4 Once its work of drafting has been
completed, it could itself direct the submission to the people for ratification as contemplated in Article XV
of the Constitution. Here it did not do so. With Congress not being in session, could the President, by the
decree under question, call for such a plebiscite? Under such circumstances, a negative answer certainly
could result in the work of the Convention being rendered nugatory. The view has been repeatedly
expressed in many American state court decisions that to avoid such undesirable consequence, the task
of submission becomes ministerial, with the political branches devoid of any discretion as to the holding of
an election for that purpose. 5 Nor is the appropriation by him of the amount necessary to be considered
as offensive to the Constitution. If it were done by him in his capacity as President, such an objection
would indeed have been formidable, not to say insurmountable. 6 If the appropriation were made in his

capacity as agent of the Convention to assure that there be the submission to the people, then such an
argument loses force. The Convention itself could have done so. 7 It is understandable why it should be
thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could
conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of
being rendered financially distraught. The President then, if performing his role as its agent, could be held
as not devoid of such competence. That brings me to the argument as to the absence of proper
submission, developed with the customary learning and persuasiveness by Senators Tanada and
Salonga. With all due recognition of their forensic skill, I prefer to rely on what, for me, is the correct
principle announced in the opinion of the Chief Justice in Gonzales v. Commission on Elections: 8 "A
considerable portion of the people may not know how over 160 of the proposed maximum of
representative districts are actually apportioned by R.B.H. No. 1 among the provinces in the Philippines. It
is not improbable, however, that they are not interested in the details of the apportionment, or that a
careful reading thereof may tend in their simple minds, to impair a clear vision thereof. Upon the other
hand, those who are more sophisticated, may enlighten themselves sufficiently by reading the copies of
the proposed amendments posted in public places, the copies kept in the polling places and the text of
contested resolutions, as printed in full on the back of the ballots they will use. It is, likewise, conceivable
that as many people, if not more, may fail to realize or envisage the effect of R.B.H. No. 3 upon the work
of the Constitutional Convention or upon the future of our Republic. But, then, nobody can foretell such
effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are satisfied so
long as the electorate knows that R.B.H. No. 3 permits Congressmen to retain their seats as legislators,
even if they should run for and assume the functions of delegates to the Convention. We are impressed
by the factors considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel
that such factors affect the wisdom of Republic Act No. 4913 and that of R.B.H. Nos. 1 and
3, not the authority of Congress to approve the same. The system of checks and balances underlying the
judicial power to strike down acts of the Executive or of Congress transcending the confines set forth in
the fundamental laws is not in derogation of the principle of separation of powers, pursuant to which each
department is supreme within its own sphere. The determination of the conditions under which the
proposed amendments shall be submitted to the people is concededly a matter which falls within the
legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the
limits thereof in enacting Republic Act No. 4913." 9

Nonetheless, were it not for the fact that the matter had become moot and academic, I am for
granting the petitions in view of what, for me, is the repugnancy between an election contemplated
under Article XV of the Constitution in herein the voters can freely register their will, whether it be for
approval or disapproval, and the existence of martial law, with its connotation that dissent may be
fraught with unpleasant consequences. While it is to be admitted that the Administration has done its
best to alleviate such a state of mind, I cannot in all honesty say, although I am prepared to concede
that I may labor under a sense of undue pessimism, that the momentum of fear necessarily incident
to such a regime has been reduced to a minimum. I fail to see then the existence of that
indispensable condition of freedom that would validate the ratification process as contemplated by
the Constitution. As to the validity of Proclamation No. 1102, adherence to what for me are
fundamental concepts of judicial review precludes it this state the expression of any opinion. It
would, at the very least, be premature. 10
BARREDO, J., concurring and dissenting:
With full consciousness of the transcendental consequences of the action the Court is taking in
these cases, not only upon me personally and as a member of the Supreme Court but upon the
Court itself as the guardian of the Constitution, which all its members have solemnly sworn in the
name of God to uphold and defend, and after long and serious consideration of all aspects and
angles of the issues submitted for resolution by the parties, I have come to the sincere conviction
that the petitions herein should be dismissed, including the supplemental petition filed by petitioners
in G.R. No. L-35948, with the consequent denial of the motion for the issuance of a writ of
preliminary injunction or a temporary restraining order enjoining in effect any act which would imply

giving force and effect to the 1972 Constitution which President Ferdinand E. Marcos proclaimed as
ratified in Proclamation No. 1102 as of twelve o'clock noon on January 17, 1973. Without prejudice
to a more extended opinion later, my reasons for this conclusion are as follows:
As of today, two matters present themselves for Our immediate resolution, namely, (1) the petitions
in all of these cases praying for a writ of prohibition against the implementation of Presidential
Decree No. 73 calling for and setting the date and the manner of holding the plebiscite for the
ratification of the Constitution proposed by the 1971 Constitutional Convention, the date set being
January 15, 1973, and (2) the supplemental petition, with prayer for the issuance of a writ of
preliminary injunction or a restraining order, in G.R. No. L-35948 to enjoin whatever ratification of the
said Constitution would be proposed by the Citizens Assemblies, established under Presidential
Decrees Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would give force and effect to
such ratification, should it be proclaimed, which, by the way, everybody knows was already done at
about 11:00 o'clock A.M. on January 17, 1973.
As to No. (1), I vote to dismiss the original petitions in all these cases for the simple reason that the
alleged grounds thereof are either untenable or have been premature, if not somehow moot and
academic, at least, meanwhile that the plebiscite had not been reset. 1
(a) There is no question that the matter of whether or not Presidential Decree No. 73 is valid is a
justiciable one and not political, hence within the jurisdiction of this Court to resolve. Tolentino v.
Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is sufficient authority for this pose.
(b) On the other hand, I am of the considered view that it is not within the competence of this Court
to pass on the propriety or wisdom of any part or provision of the Constitution as proposed by the
Convention. The Convention was called for the purpose of proposing amendments to the
Constitution, and like any Constitutional Convention it was completely and absolutely free to make
any proposal, whether or not consonant with the 1935 Constitution. The theory of ultra-vires
proposals advanced by petitioners is to me without sufficient legal basis.
(c) Much less can I accept the view that the Convention's task was limited to proposing specific
amendments to become either as new parts of the existing Constitution or as replacements of
corresponding portions thereof, for even if there were any theoretical basis for petitioners' posture in
this regard, I feel safe in saying that when the people elected the delegates to the Convention and
when the delegates themselves were campaigning such limitation of the scope of their function and
objective was not in their minds. Withal, considering the number and nature of the proposals already
being publicly discussed before and after said election, to follow petitioners' suggestion would have
produced confusion and probably insurmountable difficulties even in the framing and phrasing alone
of the amendments so that they may easily and clearly jibe with the other parts of the existing
Constitution.
(d) Regarding the alleged lack of legislative power of the President to issue Presidential Decree No.
73, I maintain that independently of the issue of whether or not the President may legislate during
martial law relative to matters not connected with the requirements of suppressing the armed
insurgency and the maintenance of peace and order, it was within the prerogative of the President to
issue said decree, considering that in doing so he merely acted as agent for and on behalf of the
Constitutional Convention, which, in my opinion written for the Court in the Tolentino case, I
individually held, had the power to call for a plebiscite, prescribe its terms and appropriate money for
the purpose. Disregarding immaterial niceties of form and language, and looking to its obvious intent
and purpose, I hold that Resolution No. 5843 of the Convention, approved on November 22, 1972,
delegated to the President in plenary terms the calling of the plebiscite, and since the ordinary rules
requiring the laying down of standards in the delegation of legislative functions binding Congress do

not, to my mind, apply to the Convention, if only because the latter occupies a higher plane of
legislative authority than Congress in matters related to the accomplishment of its objectives, it
follows that Presidential Decree No. 73 was validly issued.
(e) All the other objections to said decree were rendered premature, if not somehow moot and
academic for the time being, because under General Order No. 20, dated January 7, 1973, the
President postponed the plebiscite until further notice. Such being the case, nobody could positively
say that the President would not allow Congress to pass a plebiscite law or that he would not lift
martial law by then or that the contracts, executive orders, treaties, proclamations, decrees, etc. that
are supposed to be ratified together with the Constitution itself would not be published, for the proper
information of all concerned before the next date to be fixed for the plebiscite. In other words, no one
could say that appropriate steps would not be taken to meet the objections alleged in the petitions
before the plebiscite would be actually held. It is, indeed, judicially improper to pass upon any issue
the factual setting whereof may still be materially altered.
(f) On whether or not the holding of the plebiscite during martial law would materially affect proper
submission insofar as the freedom supposed to attend it is concerned, I agree with the respondents
that this is a question of fact which cannot be pre-determined and that it would, therefore, be the
burden of the petitioners to show by evidence that such freedom had been actually and substantially
impaired. When one recalls that measures were taken by the President precisely to provide the
widest opportunity for free debate and voting, consistent with the nature and purpose of the
plebiscite but at the same time safeguarding the objectives of the martial law proclaimed by him,
which measures he had to withdraw only when in his judgment he deemed it to be so required by
public safety, it does not seem altogether logical to assume that the existence of martial law per se
deprives the people of the essence of free suffrage. Martial law implemented Philippine style, to use
an apt expression, does not carry with it necessarily all the implications thereof as these are known
in other lands and in the recorded precedents.
Coming now to No. (2), it is evident that under the theory above-referred to that as agent of the
Convention, the President could devise other forms of plebiscite to determine the will of the majority
of the people vis-a-vis the ratification of the proposed Constitution, I believe that the establishment of
the Citizens' Assemblies as a mode of such plebiscite cannot be said to be clearly beyond the
contemplation of Article XV of the Constitution of 1935. It must be observed, however, that under
Article X of the same Constitution, it is the Commission on Elections that is supposed to "have
exclusive charge of the enforcement and administration of all laws relative to the conduct of
elections ..." and this function cannot be removed from the Commission whether by Congress or by
the President.2 This constitutional point seems to have been overlooked in the proceedings in the
Assemblies, since it does not appear from any of the official documents relative thereto that the same
have been undertaken or held under the charge of the Commission.

Besides, I feel I cannot bear evidence to history and the future generations of our people that in fact,
the answering of the questions and the canvassing and reporting of the referendum in the
Assemblies throughout the country were done exactly in the manner and form that they should have
been done, in the light of traditional concepts related to plebiscites as we know them. Otherwise
stated, I am not satisfied that Article XV of the 1935 Constitution has been fully complied with. By
this, I do not mean that it was not right to use the Assemblies; what I am saying is that, on the basis
of facts I am taking judicial notice of, the procedure of answering, canvassing and reporting adopted,
which, by the way, was far from being uniform in all the Assemblies, was not up to standard in many
places, judged on the basis of the requirements of the prevailing election laws.
On the other hand, in spite of these considerations, I do not find myself in a position to deny the
factual assertion in Proclamation 1102 that more than 14 million Filipinos have manifested approval

of the proposed Constitution and would consider the same as already ratified by them. I understand
that this number was determined on the basis of sworn reports of the respective heads of the
Assemblies. Such being the case, I am faced with proof which I have no way of duly controverting
that our people have spoken. I consider it undemocratic, impractical and unrealistic to close my eyes
to that vital fact. And since in a democracy the will of the people is the supreme law, I hold that it
would be improper for the Court to enjoin any act done or to be done pursuant to the proclamation in
dispute. I believe that whatever legal flaws there might have been in the procedure pursued leading
to the issuance of said proclamation may be deemed already cured by the apparent will of the
people however imperfectly, under legal and technical standards, the same has been expressed. To
grant the prayer of petitioners now would be tantamount to defying the very sovereign people by
whom and for whom the Constitution has been ordained, absent any demonstrated facts showing
that they prefer the status quo, which the Convention was precisely called to change meaningfully, to
the wide-range reforms everybody can see are being effected in practically all levels of the
government and all sectors of society. Withal, to issue any such injunctive writ at this stage of
denouncement of national events is to court consequences too horrible to imagine.
To the possible stricture that persons less than twenty-one years of age were allowed to participate
and vote in said Assemblies, my reaction is that I am not sure that Article V of the 1935 Constitution,
viewed in the light of the perceptible universal drift towards the enfranchisement of the youth, may
not be construed as permitting legislative enlargement of the democratic base of government
authority, since the said Article does not say that those thereby qualified are the only ones who can
vote - the language being simply that "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. ...," which, to me, strictly speaking,
only guarantees the right of suffrage to those enumerated but does not deny to the legislature the
power to include others who in its wisdom it believes should also enjoy such right. In any event, it is
elementary under our election law and jurisprudence that should it appear that disqualified persons
have succeeded in voting in an election, such election is not thereby necessarily rendered wholly
illegal, but the votes of such persons are only correspondingly deducted after being duly identified.
Accordingly, on the premise that the inclusion of those below 21 is illegal, their votes may be
deducted from the 14,000,000 or so aforementioned, and I am certain no one will deny that the
remainder would still be substantially sufficient to constitute a recognizable mandate of the people,
for under normal circumstances which must be presumed, and making the most liberal estimate, the
votes of the under aged voters among them could not have been more than one-third of said
number. Indeed, at the most, if this point had been considered before the issuance of Proclamation
1102, an injunction might have issued to restrain the under aged persons from participating in the
referendum, but now that the result thereof is afait accompli, I cannot see how such a possible flaw
can be of any material consequence.
As may be noted, I have taken it upon myself to rule on the legal issues surrounding Proclamation
1102. Indeed, I feel very strongly that, as a member of the Supreme Court, it is my duty to our
people to enlighten them as to said issues. The eyes of the whole country have been pinned on Us
since the Convention approved the draft of the Constitution in question on November 30, 1972, and
the President called, on December 1, 1972, thru Presidential Decree No. 73, for a plebiscite
scheduled to be held on January 15, 1973, for its ratification. Concerned citizens purporting to speak
for the people have precisely come to the Court challenging the legality of the procedure thus
pursued as not being in consonance with the amending process specified in the 1935 Constitution
and praying that the Court enjoin the continued adoption of said procedure. Everybody knows that
they came to Us with the conviction that the Court would not hesitate to play its role as the final
authority designated by the Constitution itself to interpret and construe its provisions.

Accordingly, We gave due course to their petitions, and for two days, December 18 and 19, We
heard brilliant and learned counsel of both sides argue eloquently, even with obvious patriotic fervor
but in view of the circumstances related in the separate opinion of the Chief Justice, We were unable
to decide the cases even as late as January 13, 1973. Petitioners then came with motions urgently
seeking an early decision, and soon after, or, on January 15, 1973, petitioners in G.R. No. L-35948
filed a supplemental petition relative to the latest developments involving the creation of Citizens
Assemblies and the persistent reports indicating almost to a certainty that a proclamation would be
issued doing away with the usual plebiscite procedure and already proclaiming the proposed
Constitution as ratified and in force, on the basis alone of the favorable result of a referendum in said
Assemblies. Their main prayer was for Us to issue a writ of prohibition against the submission and
approval of the reports of the results of said referendum. We immediately required the respondents
to answer the supplemental petition not later than January 16 and set the case for hearing on
January 17 at 9:30 o'clock in the morning.
In closing his arguments before the Court that fateful morning, Senator Lorenzo Tanada, the
tenacious counsel for petitioners, pleaded earnestly, even after the Chief Justice had read to him in
open session the text of Proclamation 1102 which had just been delivered by the Secretary of
Justice, that the Court rule squarely on the issues petitioners have raised. He told Us that it is
secondary whether Our judgment should be favorable or unfavorable to petitioners, what is most
important is for the people to know whether or not the provisions of the Constitution have been
observed.
Indeed, no graver responsibility rests on the shoulders of the Court. And as I see it, We cannot shirk
that responsibility by alleging technical excuses which I sincerely believe are at best of controversial
tenability.
I cannot share the view that the validity and constitutionality of Proclamation 1102 have not been
submitted to Us for resolution in these proceedings. I maintain that for all intents and purposes, the
supplemental motion of Senator Tanada of January 15 placed those transcendental issues before
Us. Not only in his pleading but more so in his oral argument, Senator Tanada, with all the vigor of
his mind and the sincere patriotism of his heart, contended that with the creation of the Citizens
Assemblies and the referendum being conducted therein, and particularly in view of the two
questions to be answered, namely, "Do you approve of the proposed constitution?" and "Do you
want the plebiscite to be held?", there was no doubt that Article XV of the Constitution was being
bypassed and that this Court was being "short-circuited." In terms that could not have been plainer,
he pointed to the impending probability of the issuance of a proclamation of the nature of
Proclamation 1102, and he prayed eloquently, that We should act without loss of time to stop the
purported reports of the referendum so as to remove the basis for such feared eventuality. So much
so, that after the Chief Justice read the proclamation to him, he dramatically exclaimed, "I have been
confirmed." Others would have said, "Consummatum est!"
Under these circumstances, I cannot see how it can be held that We can refrain from ruling on the
legal and constitutional significance of Proclamation 1102. At the very least, the present state of the
case of Vidal Tan, et al. vs. Comelec, et al., G.R. No. L-35948, imposes upon Us the ineludible
obligation to rule whether or not We should have enjoined the submission of the reports of the
Assemblies, as demanded by petitioners, it being evident that as Senator Tanada contended said
reports were to be utilized as basis for the issuance of a proclamation declaring the proposed
Constitution as ratified and already in force. In similar past cases too numerous to cite, this Court
and all courts in the country, I dare say, have always considered the consummation of a threatened
act, after the petition to enjoin it has been submitted to the court's jurisdiction, as fit subject for its
disposition, within the same proceedings, to the extent that the courts even issue mandatory
injunctions, in appropriate cases, for the respondents to undo what has already been done without
having to hold any further hearing. It is claimed that the parties must be fully heard but have we

not heard enough from them? Has not Senator Tanada presented all his arguments in support of his
supplemental petition? And if he has not, is it the fault of the Court? Is it fair to all concerned that
such possible omission be considered as a ground for Our withholding Our judgment on what under
the law and the rules is already properly before Us for resolution? Truth to tell, I cannot imagine a
fuller ventilation of the cause of any other petitioner who has come to this Court than petitioners in
G.R. No. L-35948. Rarely has the Court held hearings for days and more unusually has it given any
counsel almost unlimited time to speak, but these We have done in these cases. Can any party ask
for more? If at all, only the respondents have not adequately presented their side insofar as the
supplemental petition is concerned, but, again, it cannot be said that they have not had the
opportunity to do so. The Acting Solicitor General has unqualifiedly filed his answer on behalf of all
the respondents, and to me, his attempt to impress the Court that the new respondents have not
been summoned and that the subject petition is premised on probabilities and conjectures is of no
moment, considering the grave importance of the issues and the urgent necessity of disposing them
expeditiously and without unnecessary loss of fateful time. Of course, I respect the reasons of my
colleagues who cannot see it my way, but as far as I am concerned, this is as appropriate a case
and an occasion as any can be to resolve all the fundamental issues raised by petitioners, and to
leave them unresolved now would be practically inviting some non-conformists to challenge the
Constitution and to keep not only the wheels of the transition at a standstill, but worse, also the
animus of the people in suspended animation fraught with anxiety, with all the dire consequences
such a situation entails.
Some legalists would call the government under the proclaimed Constitution a revolutionary
government, but the President denies that it is, because, according to him, it is to operate under a
Constitution ratified by the people. At this crucial moment in the history of the nation, We need not
bother about variant nomenclatures; these can be subjective and are, in any event, unsubstantial.
What is of supreme and utmost importance is that the people be told what exactly the situation is,
sans the veneer of what might turn out after all to be an inaccurate appellation. The people must
know the real score, and, as a member of the Supreme Court, I do not hesitate to tell them that, as I
have already explained above, in my honest opinion, the purported ratification of the Constitution
attested in Proclamation 1102 and based on the referendum among the Citizens Assemblies falls
short of being in strict conformity with the requirements of Article XV of the 1935 Constitution. I must
hasten to add, however, that such unfortunate drawback notwithstanding, and considering all other
relevant circumstances, principally, the naked proof before Us indicating that the people approve of
it, I earnestly and sincerely believe that the new Constitution is legally recognizable and should be
recognized as legitimately in force.
I reiterate I have no legal means of denying it to be a fact, as stated in the proclamation, that
14,000,000 Filipinos have manifested in the referendum in the Citizens Assemblies their approval of
this Constitution. And even if We considered that said referendum was held under the aegis of full
implementation of the martial law proclaimed by the President under Proclamation 1081, as
mandated by General Order No. 20, We would not be able to ignore that the government under this
Constitution is well organized and is in stable, effective and complete control of the whole Philippine
territory, and what is more pertinently important, that this Constitution purged as it is now of its
Achilles heel, the Interim National Assembly, may fairly be said to be acceptable generally to the
people, embodying as it does meaningful reforms designed to check, if not to eradicate the then
prevalent causes of widespread popular restiveness and activism which has already assumed
practically the proportions of an armed insurgency or rebellion somehow endangering the security
and safety of the constituted government, if not the integrity of the nation. And in connection with the
implementation of martial law thus ordered, as I have already noted earlier in this opinion, its being
done Philippine style may be of some relevance, since such enforcement is not characterized by the
rigor that the usual concept of martial law connotes, hence, any suggestion of constructive duress
relative to the proceedings in the Assemblies and the Barangays may not fully hold water. Upon
these premises, it is my considered opinion that if in any sense the present government and

Constitution may be viewed as revolutionary, because they came into being, strictly speaking, extraconstitutionally or outside the pale of the 1935 Constitution, they are nonetheless entitled to be
accorded legitimate standing, for all intents and purposes and for all concerned, under the
universally accepted principle that a revolution, whether violent or bloodless, is illegal only when it
fails to gain the support of the people. Indeed, under these circumstances, I cannot resist the
temptation of asking, is it juridically possible for this Court to declare unconstitutional and without
force and effect the very Constitution under which it presently exists? I am inclined to hold that the
answer to this question can only be in the negative. Consequently, petitioners are not entitled to any
judicial relief and, I have no alternative but to vote for the dismissal of the supplemental petition of
January 15, 1973.
In conclusion, I hold that the 1935 Constitution has pro tanto passed into history and has been
legitimately supplanted by the Constitution now in force by virtue of Proclamation 1102, issued
pursuant to the certified results of the referendum in the Citizens Assemblies all over the country
favoring its adoption and enforcement.
Long live our country, the Philippines! God bless our people, the Filipino people!
ZALDIVAR, J., dissenting:
I cannot agree with my worthy colleagues who hold the view that the petitions in all these have
become moot and academic simply because the relief prayed for by petitioners cannot be granted
after Proclamation No. 1102 was issued by the President of the Philippines. A case does not
become moot where there remain substantial rights or issues that are controverted and which are
not settled. 1 This Court has decided cases even if no positive relief, as prayed for by a party in the case,
could be granted, or even if a party has withdrawn his appeal, if the case presented to the court for
resolution is a clear violation of the Constitution or of fundamental personal rights of liberty and property. 2

In the present cases it is in the public interest that this Court renders a ruling on the transcendental
issues brought about by the petition issues which must be resolved by this Court as the guardian
of the Constitution of this Republic.
For a comprehensive appraisal of the facts and circumstances relevant to the resolution of the
issues involved in these cases, We shall narrate pertinent events, as shown in the record.
On December 1, 1972 the President of the Philippines, in his capacity as Commander-in-Chief of all
the Armed Forces of the Philippines and acting pursuant to Proclamation No. 1081, dated
September 21, 1972, 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 for the purpose. The Decree states that the same
was issued pursuant to Resolution No. 5843 of the 1971 Constitutional Convention proposing "to
President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the
proposed new Constitution on such appropriate date as he shall determine and providing for the
necessary funds therefor." " 3 The decree set the plebiscite for January 15, 1973 and appropriated the
sum of P15,000,000.00 to carry out the purpose of the decree. The Decree provided for the publication of
the proposed Constitution, the dissemination of information regarding the proposed Constitution, the
application of the provisions of the Election Code of 1971 to the plebiscite insofar as they are not
inconsistent with the provisions of the decree, specially stating that the provisions of said Code regarding
the right and obligations of political parties and candidates shall not apply to the plebiscite. The Decree
further provided for a calendar for the plebiscite, for the registration of voters, for the constitution of the
board of inspectors, for watchers, for precincts and polling places, for the official ballots to be used, for
the preparation and transmission of plebiscite returns, for the canvass of the returns by the city,
municipality, and the municipal district board of canvassers, for the canvass by the Commission on

Elections and the proclamation of the results by said Commission, for supplies and services needed for
the holding of the plebiscite, and on the authority given to the Commission on Elections to promulgate
rules and regulations necessary to carry out the provisions of the Decree.

On December 1, 1972, the President of the Philippines also issued General Order No. 17, ordering
and enjoining the Armed Forces of the Philippines and all other departments and agencies of the
Government to allow and encourage public and free discussions and debates on the proposed
Constitution before the plebiscite set for January 15, 1973.
During the first half of the month of December 1972, the petitioners, in the ten cases now before this
Court, filed petitions for prohibition with preliminary injunction, seeking to prevent the holding of the
plebiscite on January 15, 1973. The petitioners question the validity of Presidential Decree No. 73,
principally upon the ground that it is not in the power of the President of the Philippines to call a
plebiscite for the ratification or rejection of the proposed Constitution and to appropriate public funds
for the purpose. The petitioners also maintain that the period of only about 45 days from the date of
the approval of the proposed Constitution by the Constitutional Convention on November 30, 1972 to
January 15, 1973, was not a sufficient time for the electorate of this country to be properly informed
regarding the provisions of the proposed Constitution, and the electorate could not therefore vote
intelligently on whether to ratify or to reject the proposed Constitution, and so there could be no
proper submission of the proposed Constitution to the electorate. The petitioners further maintain
that the country being under martial law there could not be a free submission of the proposed
Constitution to the electorate. In some of the petitions, the petitioners also maintain that the
proposed Constitution contains provisions which are beyond the power of the Constitutional
Convention to adopt or to propose. All the petitioners prayed this Court to issue a writ of preliminary
injunction or restraining order to prevent the respondents in each of the petitions from implementing
Presidential Decree No. 73. This Court, however, did not issue the preliminary injunction, nor the
restraining order, prayed for. This Court required the respondents in each petition to answer the
petition, and set the cases for hearing on the petition for preliminary injunction and on the merits of
the case for December 18, 1972. Hearings were actually held for two days on December 18 and
19, 1972.
On December 31, 1972, while these cases were pending before this Court, the President of the
Philippines issued Presidential Decree No. 86 creating the Citizens Assemblies throughout the
country. Among others, Decree No. 86 provides that there is created a citizen assembly in each
barrio in municipalities, and in each district in chartered cities, provided that in the case of Manila
and other chartered cities where there are no barrios there shall be a citizen assembly in every ward;
that the citizen assemblies shall consist of all persons who are residents of the barrio, district, or
ward for at least six months, 15 years of age or over, citizens of the Philippines, and who are
registered in the list of citizens assembly members kept by the barrio, district or ward secretary. As
stated in the decree, the purpose of establishing the citizens assemblies is to broaden the base of
the citizens' participation in the democratic process and to afford ample opportunities for the citizenry
to express their views on important national issues.
On January 5, 1973 the President of the Philippines issued Presidential Decree No. 86-A which,
among others, provided for the submission to the citizens' assemblies created under Presidential
Decree No. 86 questions to be answered, and among those questions are these two: (1) "Do you
approve of the new Constitution?"; (2) "Do you still want a plebiscite to be called to ratify the new
Constitution ?"
On January 7, 1973 the President issued General Order No. 20, ordering the postponement of the
plebiscite that had been scheduled for January 15, 1973. Said general order reads as follows:

GENERAL ORDER NO. 20


WHEREAS, pursuant to Presidential Decree No. 73 dated December 1, 1972, a
plebiscite has been called on January 15, 1973 at which the proposed Constitution of
the Philippines shall be submitted to the people for ratification or rejection;
WHEREAS, Presidential Decree No. 86, dated December 31, 1972, created Citizens
Assemblies so as to afford ample opportunities for the citizenry to express their views
on important national issues;
WHEREAS, one of the questions presented to the Citizens Assemblies is: "Do you
like the plebiscite on the proposed Constitution to be held later?
WHEREAS, it is necessary to hold in abeyance the plebiscite until the people's
preference has been ascertained;
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 the plebiscite scheduled to be held on
January 15, 1973, be postponed until further notice.
I further order that the provision of Section 3 of Presidential Decree No. 73 insofar as
they allow free public discussion of the proposed Constitution, as well as my order of
December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for
the purposes of free and open debate on the proposed Constitution, be suspended in
the meantime.
Done in the City of the Manila, this 7th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.
(Sgd.) FERDINAND E.
MARCOS
President
Republic of the
Philippines
By the President:
(Sgd.) ALEJANDRO MELCHOR
Executive Secretary
As of the day when the above-quoted General Order No. 20 was issued these cases were all
pending decision before this Court.
At this juncture I am going to particularize my discussion on case G.R. No. L-35948 (Vidal Tan, et
al., petitioners vs. Commission on Elections, et al., respondents). What I say in connection with the
Vidal Tan case may also be considered in relation with the other cases before Us.
On January 12, 1973 counsel for the petitioners in the Tan case filed an "Urgent Motion For Early
Decision", alleging, among others, that it was announced that voting by the Citizens' Assemblies

would be held on January 10 to 15, 1973 whereby the Citizens' Assemblies would be asked a
number of questions, among them the following:
(1) Do you approve of 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 election would not be held, when do you want the next elections to be
called?
(6) Do you want martial law to continue?
Counsel for the petitioners also alleged that petitioners had reasons to fear that the question: "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 bypass and shortcircuit this Court before which the question regarding the validity of the plebiscite scheduled for
January 15, 1973 on the proposed Constitution was pending resolution. Counsel for petitioners also
alleged that they had reasons to fear "that if an affirmative answer to the two questions just referred
to would be reported then this Honorable Court and the entire nation would be confronted with a fait
accompli which has been attained in a highly unconstitutional and undemocratic manner;" and
"the fait accompli would consist in the supposed expression of the people approving the proposed
Constitution." Counsel further states "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" and "that in such a situation, the Philippines would be
facing a real crisis and there is a likelihood of confusion if not chaos, because then, the people and
their officials would not know which Constitution is in force." 4
On January 13, 1973 this Court ordered the Solicitor General to answer the urgent motion of the
petitioners, dated January 12, 1973.
On January 15, 1973 counsel for petitioners filed "A Supplemental Motion for Issuance of
Restraining Order and for Inclusion of Additional Respondents." The respondents sought to be
added were the Department of Local Governments and its head, Secretary Jose Rono; the
Department of Agrarian Reforms and its head, Secretary Conrado Estrella; and the National
Ratification Coordinating Committee and its chairman, Guillermo de Vega. In their supplemental
motion for the issuance of restraining order enjoining the original respondents, as well as the
additional respondents, and their deputies, subordinates and/or substitutes from collecting,
certifying, announcing and reporting to the President or other officials concerned, the Citizens'
Assembly referendum results that would be obtained in the voting held during the period comprised
between January 10 and January 15, 1973, particularly on the two questions: (1) "Do you approve of
the new Constitution?", and (2) "Do you still want a plebiscite to be called for the ratification of the
new Constitution?" Counsel for petitioners further alleged that for lack of material time the
appropriate amended petition to include the new respondents could not be completed because the
submission of the proposed Constitution to the Citizens' Assemblies was not made known to the

public until January 11, 1973, but nevertheless the new respondents could properly be included
because in their petition petitioners prayed "for the annulment not only of Presidential Decree No. 73
but also of any similar decree, proclamation, order or instruction" so that Presidential Decree Nos. 86
(and 86-A) in so far at least as they attempt to submit the proposed Constitution to a plebiscite by
the Citizens' Assemblies are properly in issue in the case, and those who enforce, implement and
carry out said Presidential decrees and the instructions incidental thereto clearly fall within the scope
of the petition. Moreover, counsel for petitioners alleges that in the original petition they prayed for
the issuance of a writ of preliminary injunction restraining not only the original respondents, but also
their agents from the performance of acts, implementing, or tending to implement, Presidential
Decree No. 73 or any other similar decree, order, instructions, or proclamation in relation to the
holding of the plebiscite in question on January 15, 1973, and that they had also prayed for such
other relief which may be just and equitable. Counsel for petitioners stressed the plea that unless the
petition is decided immediately and the respondents were restrained or enjoined from collecting,
certifying, reporting, or announcing to the President the result of the alleged voting of the so-called
Citizens' Assemblies irreparable damage would be caused to the Republic of the Philippines, to the
Filipino people and to the cause of freedom and democracy, because after the result of the
supposed voting on the two precise questions that they mentioned shall have been announced, a
conflict would arise between those who maintain that the 1935 Constitution is still in force, on the
one hand, and those who maintain that the old Constitution is superseded by the proposed
Constitution on the other hand, thereby creating confusion if not chaos; and that even the jurisdiction
of this Court would be subject to serious attacks because the advocates of the theory that the
proposed Constitution had been ratified by reason of the announcement of the results of the
proceedings of the Citizens Assemblies would argue that General Order No. 3, which would also be
deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, had placed
Presidential Decrees No. 73 and No. 86 (and 86-A) beyond the reach and jurisdiction of this Court.
This Court required the Solicitor General to comment on the supplemental motion and set the said
motion for hearing on January 17, 1973.
On January 17, 1973 the urgent motion of January 12, 1973 and the supplemental motion for the
issuance of the restraining order and the inclusion of additional respondents were heard on oral
arguments by counsel for the petitioners and the Solicitor General. Towards the end of the hearing,
and while counsel for the petitioners was answering questions from Members of this Court, the Chief
Justice received a copy of Proclamation No. 1102 of the President of the Philippines "announcing
the ratification by the Filipino people of the Constitution proposed by the 1971 Constitutional
Convention." The Chief Justice read in open court, for the record, Proclamation No. 1102. Said
Proclamation reads as follows:
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 sixtyone (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 Barangay (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 Barangay (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.
FERDI
NAND
E.
MARC
OS
Preside
nt of
the
Philippi
nes
By the President:
ALEJANDRO MELCHOR
Executive Secretary

And so, what the petitioners had feared, as expressed in their urgent motion for early decision and in
their supplemental motion to issue restraining order, etc., that the results of the voting in the Citizens'
Assemblies might be taken as a basis for proclaiming the ratification of the proposed Constitution,
had actually happened. And so, what the petitioners in all the ten cases now before Us among
them civic leaders, newspapermen, Senators and Congressmen, Members of the 1971
Constitutional Convention, and professionals had tried to prevent from happening, that is, the
proclamation of the ratification of the proposed constitution on the basis of the affirmative votes that
might be cast in the plebiscite that was set for January 15, 1973 pursuant to Presidential Decree No.
73, the legality of which decree was being questioned by petitioners, had happened.
The crucial question before this Court is whether or not Presidential Proclamation No. 1102
announcing the ratification of the proposed Constitution of 1972 is in accordance with the
Constitution and has the effect of making the proposed Constitution of 1972 effective and in force as
of January 17, 1973 when the proclamation was issued. This is, I believe, the vital question that this
Court is called upon to resolve, and it is for this reason that I believe that this case has not been
moot and academic. While it is true that the relief prayed for by the petitioners, that the original
respondents be enjoined from implementing Presidential Decree No. 73, cannot now be granted,
Proclamation No. 1102 nevertheless has the effect of consummating the ratification of the proposed
Constitution the very event which the petitioners had precisely sought to prevent from happening
when they filed their petitions. Presidential Proclamation No. 1102 has a tremendous effect upon the
political, economic and social life of the people of this country. I believe, therefore, that this Court
should not indulge in the niceties of procedural technicalities and evade the task of declaring
whether or not the Constitution proposed by 1971 Convention has been validly ratified as announced
in said Proclamation No. 1102. This Court is called upon to give the people of this Republic the
proper orientation regarding the effect of said Proclamation No. 1102. That orientation will only come
about when this Highest Court of the land has rendered a ruling on whether or not said Proclamation
No. 1102 is valid.
I cannot agree with the view of some of my colleagues that this Court cannot make a ruling on the
question of whether or not Proclamation No. 1102 is valid, because the validity of said proclamation
is not the matter that is squarely presented to this Court for resolution by the petitions in these
cases. I believe, however, that this Court should not close its eyes to the fact that in the ten petitions
that are before this Court the uniform prayers of the petitioners are to enjoin the implementation of
Presidential Decree No. 73 and to nullify said decree precisely in order to prevent the ratification
of the Constitution proposed by the 1971 Convention in a manner that is not in accordance with the
Constitution and the law. So much so that in G.R. No. L-35948 (Tan, et al. v. Comelec, et al.) the
petitioners, among others, prayed that judgment be rendered declaring" ... Presidential Decree No.
73 or any similar decree, proclamation, order or instruction unconstitutional, null and void and
making the writ of preliminary injunction permanent." It is not difficult to understand that the purpose
of the petitioners was to invalidate any and all orders, decrees and proclamations that are corollary
or related to Presidential Decree No. 73 which had for its main purpose to submit the Constitution
proposed by the 1971 Convention to a plebiscite on January 15, 1973 and thereby determine
whether the people approve or reject the proposed Constitution. As We have adverted to, the
objective of the petitioners was to prevent the ratification of the proposed constitution in a manner
that is offensive to the Constitution and the law. All orders, decrees, instructions, or proclamations
made after the issuance of Presidential Decree No. 73, which have for their purpose either to
supplement Presidential Decree No. 73 or to accomplish through other means or methods what
Presidential Decree No. 73 was issued for, are encompassed within the prayer of petitioners to
nullify "any similar decree, proclamation, order, or instruction". Presidential Decrees Nos. 86 and 86A are such "similar" decrees, because, as it turned out, Presidential Decree No. 86 provided for the
organization of the citizens' assemblies which became the forums where the question of whether to
ratify or to reject the proposed Constitution was submitted; and, as it turned out, Presidential Decree
No. 86-A provided for the very question which otherwise the voters would have been asked to

answer "Yes" or "No" in the plebiscite which had been provided for in Presidential Decree No. 73. In
other words, Presidential Decree No. 86 supplanted Presidential Decree No. 73 in so far as the latter
decree provided for the forum where the question was to be asked; while Presidential Decree No.
86-A supplanted Presidential Decree No. 73 in so far as the latter decree provided for the question
to be asked regarding the proposed Constitution. And finally because Presidential Proclamation No.
1102 has for its basis what was done pursuant to Presidential Decrees Nos. 86 and 86-A, it follows
that Proclamation No. 1102 is just the "proclamation" that the petitioners sought to nullify or
invalidate if issued.
I believe that the effects of Proclamation No. 1102 have an intimate bearing on the objectives of the
petitioners when they filed the instant petitions for prohibition, and so said proclamation has to be
considered along with all the issues raised by the petitioners in the cases at bar. More so, because
said Proclamation No. 1102 was read into the record by the Chief Justice of this Court during the
hearing of L-35948 (Tan vs. Comelec), in open court, on January 17, 1973. I believe that this Court
must not ignore Proclamation No. 1102 in relation to the matters and to the issues ventilated before
this Court. Proclamation No. 1102 was formally brought to the attention of this Court. It is my view
that this Court should not evade its duty of defining for the benefit of the people of this Republic the
legal and constitutional nature and effects of that proclamation. I, for one, as a humble member of
this Court, feel it my duty to say what I think, and believe, about Proclamation No. 1102. I do this not
because of any desire on my part to obstruct the workings of the agencies and instrumentalities of
our Government, or to foster among the people in our country an attitude of disrespect or disloyalty
towards the constituted authorities that presently run the affairs of our Government. I am only doing
what I believe is my sworn duty to perform.
The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in
accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines,
which reads:
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 the 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.
It is in consonance with the above-quoted provision of the 1935 Constitution that on March 16, 1967,
the Congress of the Philippines passed Resolution No. 2 calling a convention to propose
amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:
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 which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.
It follows that from the very resolution of the Congress of the Philippines which called for the 1971
Constitutional Convention there was a clear mandate that the amendment proposed by the 1971
Convention, in order to be valid and considered part of the Constitution, must be approved by
majority of the votes cast in an election at which they are submitted to the people for their ratification
as provided in the Constitution.
This Court, in the case of Tolentino vs. Commission on Elections, L-35140, October 16, 1971 (41
SCRA 715), speaking through Mr. Justice Barredo, said:

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 coup d' etat. As to such kind of conventions, it is absolutely true that
the convention is completely without restraint 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 ...
xxx xxx xxx
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.
In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that
as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its
rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines the President proclaimed that the Constitution proposed by the
1971 Convention has been ratified and has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of
Article XV of the Constitution of 1935 was not complied with. It is not necessary that evidence be
produced before this Court to show that no elections were held in accordance with the provisions of
the Election Code. Proclamation No. 1102 unequivocably states that the proposed Constitution of
1972 was voted upon by the barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the qualified and registered voters of
the country would cast their votes, where official ballots prepared for the purpose are used, where
the voters would prepare their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country, where the election is conducted
by election inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind of election that
was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was ratified; on June 18, 1940, when
the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to
the Constitution to increase the number of Members of the House of Representatives and to allow
the Members of Congress to run in the elections for Delegates to the Constitutional Convention of
1971 were rejected.
I cannot see any valid reason why the practice or procedure in the past, in implementing the
constitutional provision requiring the holding of an election to ratify or reject an amendment to the

Constitution, has not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree order the ratification of the
proposed 1972 Constitution thru a voting in the barangays and make said result the basis for
proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No.
1102 was issued in complete disregard, or, in violation, of the provisions of Section 1 of Article V of
the 1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people
would still like a plesbiscite to be called to ratify the new Constitution, 14,298,814 members of the
barangays answered that there was no need for a plebiscite but that the vote of the barangays
should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the
power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV
of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
An election is the embodiment of the popular will, the expression of the sovereign
power of the people. In common parlance an election is the act of casting and
receiving the ballots, counting them, and making the return." (Hontiveros vs. Altavas,
24 Phil. 632, 637).
Election" implies a choice by an electoral body at the time and substantially in the
manner and with the safeguards provided by law with respect to some question or
issue. (Leffel v. Brown, Com. Pl., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at
footnote 6.5).
... the statutory method whereby qualified voters or electors pass on various public
matters submitted to them the election of officers, national, state, county, township
the passing on various other questions submitted for their determination (29
C.J.S. 13, citing Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5,
241 Iowa 358).
Election" is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W.
2d 438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234).
The right to vote may be exercised only on compliance with such statutory
requirements as have been set up by the legislature, (People ex rel. Rago v. Lipsky
63 N.E. 2d 642, 327 III. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d
169 in 29 C.J.S. 38). (Emphasis supplied)
In this connection I herein quote the pertinent provisions of the Election Code of 1971:
Sec. 2. Applicability of this Act. All elections of Public officers except barrio
officials and plebiscitesshall be conducted in the manner provided by this Code.
Sec. 99. Necessity of registration to be entitled to vote. In order that a qualified
voter may vote in any regular or special election or in any plebiscite, he must be

registered in the permanent list of voters for the city, municipality or municipal district
in which he resides: Provided, That no person shall register more than once without
first applying for cancellation of his previous registration. (Emphasis supplied). 3)
Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388).
It is stated in Proclamation No. 1102 that the voting was done by the members of citizens
assemblies who are 15 years of age or over. Under the provision of Section 1 of Article V of the
1935 Constitution the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the barangays, except in very few
instances, was done by the raising of hands by the persons indiscriminately gathered to participate
in the voting, where even children below 15 years of age were included. This is a matter of common
observation, or of common knowledge, which the Court may take judicial notice of. To consider the
votes in the barangays as expressive of the popular will and use them as the basis in declaring
whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which would
mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the supreme law of the land, should be
ratified or not, must not be decided by simply gathering people and asking them to raise their hands
in answer to the question of whether they vote for or against a proposed Constitution. The election
processes as provided by law should be strictly observed in determining the will of the sovereign
people in a democracy. In our Republic the will of the people must be expressed through the ballot in
a manner that is provided by law.
It is said that in a democracy the will of the people is the supreme law. Indeed, the people are
sovereign, but the will of the people must be expressed in a manner as the law and the demands of
a well-ordered society require. The rule of law must prevail even over the apparent will of the
majority of the people, if that will had not been expressed, or obtained, in accordance with the law.
Under the rule of law public questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of the adoption of a constitution or in the ratification of an
amendment to the Constitution.
The following citations are, to me, very relevant in the effort to determine whether the proposed
Constitution of 1972 had been validly ratified or not:
When it is said that "the people" have the right to alter or amend the constitution, it
must not be understood that this term necessarily includes all the inhabitants of the
state. Since the question of the adoption or rejection of a proposed new constitution
or constitutional amendment must be answered by a vote, the determination of it
rests with those who, by the existing constitution, are accorded the right of suffrage,
But the qualified electors must be understood in this, as in many other cases, as
representing those who have not the right to participate in the ballot. If a constitution
should be abrogated, and a new one adopted, by the whole mass of people in a
state, acting through representatives not chosen by the "people" in the political sense
of the term, but by the general body of the populace, the movement would be extralegal. (Black's Constitutional Law, Second Edition, pp. 47-48).
The theory of our political system is that the ultimate sovereignty is in the people,
from whom springs all legitimate authority. The people of the Union created a
national constitution, and conferred upon it powers of sovereignty over certain
subjects, and the people of each State created a State government, to exercise the
remaining powers of sovereignty so far as they were disposed to allow them to be
exercised at all. By the constitution which they establish, they not only tie up the

hands of their official agencies, but their own hands as well; and neither the officers
of the State, nor the whole people as an aggregate body, are at liberty to take action
in opposition to this fundamental law. (Cooley's Constitutional Limitations, 8th
Edition, Vol. I, p, 81 cited in Graham v. Jones, 3 So. 2d. 761, 782).
The theory that a favorable vote by the electorate, however unanimous, on a
proposal to amend a constitution, may cure, render innocous, all or any antecedent
failures to observe commands of that Constitution in respect of the formulation or
submission of proposed amendments thereto, does not prevail in Alabama, where
the doctrine of the stated theory was denied, in obvious effect, by the pronouncement
60 years ago of broad, wholesome constitutional principles in Collier v.
Friersonsupra, as quoted in the original opinion, ante. The people themselves are
bound by the Constitution; and, being so bound, are powerless, whatever their
numbers, to change or thwart its mandates, except through the peaceful means of a
constitutional convention, or of amendment according to the mode therein
prescribed, or through the exertion of the original right of revolution. The Constitution
may be set aside by revolution, but it can only be amended in the way it provides,"
said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103.
Johnson v. Craft, et al., 87 So. 375, 385, 387 On Rehearing).
The fact that a majority voted for the amendment, unless the vote was taken as
provided by the Constitution, is not sufficient to make a change in that instrument.
Whether a proposed amendment has been legally adopted is a judicial question, for
the court must uphold and enforce the Constitution as written until it is amended in
the way which it provides for. Wood v. Tooker 15 Mont. 8, 37 Pac. 840, 25 L.R.A.
560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving
Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac.
1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99,
104).
Provisions of a constitution regulating its own amendment, ... are not merely
directory, but are mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed amendment. These provisions
are as binding on the people as on the legislature, and the former are powerless by
vote of acceptance to give legal sanction to an amendment the submission of which
was made in disregard of the limitations contained in the constitution. (16 C.J.S. 3536 cited in Graham v. Jones, 3 So. 2d 761, 782).
It is said that chaos and confusion in the governmental affairs of the State will result
from the Court's action in declaring the proposed constitutional amendment void.
This statement is grossly and manifestly inaccurate. If confusion and chaos should
ensue, it will not be due to the action of the Court but will be the result of the failure of
the drafters of the joint resolution to observe, follow and obey the plain essential
provisions of the Constitution. Furthermore, to say that, unless the Court disregards
its sworn duty to enforce the Constitution, chaos and confusion will result, is an
inherently weak argument in favor of the alleged constitutionality of the proposed
amendment. It is obvious that, if the Court were to countenance the violations of the
sacramental provisions of the Constitution, those who would thereafter desire to
violate it and disregard its clear mandatory provisions would resort to the scheme of
involving and confusing the affairs, of the State and then simply tell the Court that it
was powerless to exercise one of its primary functions by rendering the proper
decree to make the Constitution effective, (Graham v. Jones, 3 So. 2d. 761, 793794).

In our jurisprudence I find an instance where this Court did not allow the will of the majority to
prevail, because the requirements of the law were not, complied with. In the case of Monsale v.
Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of
Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of
candidacy before the expiration of the period for the filing of the same. However, on October 10,
1947, after the period for the filing of certificates of candidacy, Monsale withdrew his certificate of
candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by
withdrawing the withdrawal of his certificate of candidacy. The Commission on Elections, on
November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless
proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes
cast for Monsale upon the ground that the votes cast for him were stray votes, because he was
considered as having no certificate of candidacy. On the other hand, the boards of inspectors
credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the
election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the
proceedings in the trial court it appeared that Monsale had obtained 2,877 votes while Nico obtained
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo
decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the
decision of the lower court. This Court declared that because Monsale withdrew his certificate of
candidacy his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not
restore the effectiveness of his certificate of candidacy, and this court declared Nico the winner in
spite of the fact that Monsale had obtained more votes than he.
We have cited this Monsale case to show that the will of the majority of the voters would not be
given effect, as declared by this Court, if certain legal requirements have not been complied with in
order to render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens assemblies
(barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the
amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the
basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was
reported that 14,976,561 members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law must
be upheld.
My last observation: One of the valid grounds against the holding of the plebiscite on January 15,
1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people
to exercise their right of choice, because of the existence of martial law in our country. The same
ground holds true as regards the voting of the barangays on January 10 to 15, 1973. More so,
because by General Order No. 20, issued on January 7, 1973, the President of the Philippines
ordered "that the provisions of Section 3 of Presidential Decree No. 13 in so far as they allow free
public discussion of the proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open
debate on the proposed constitution, be suspended in the meantime." 5 It is, therefore, my view that
voting in the barangays on January 10-15, 1973 was not free, and so this is one added reason why the
results of the voting in the barangays should not be made the basis for the proclamation of the ratification
of the proposed Constitution.

It is my view, therefore, that Proclamation No. 1102 is repugnant to the 1935 Constitution, and so it
is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971
Constitutional Convention should be considered as not yet ratified by the people of this Republic,
and so it should not be given force and effect.

During the deliberation of these cases by this Court, a suggestion was made that because of the
transcendental effect of Proclamation No. 1102 on the country, the petitioners in these cases,
specially the petitioners in L-35948 (Vidal Tan, et al. vs. Comelec, et al.), be given a period of ten
days to move in the premises, considering that the issuance of Proclamation No. 1102 came as a
surprise to the petitioners and they had no opportunity to define their stand on said Proclamation in
relation to their petitions. The majority of the Court, however, were not in favor of the idea. I
expressed myself, and I so express now, that I am in favor of granting the petitioners the opportunity
to articulate their stand regarding Proclamation No. 1102 so that the objection of some members of
this Court to pass upon the validity of said proclamation upon the ground that it is not in issue in
these cases may be met, and so that the validity of Proclamation No. 1102, and the question of
whether or not the proposed 1972 Constitution has been validly ratified, may be resolved by this
Court once and for all.
At any rate, whether the petitioners are granted opportunity to define their stand on Proclamation No.
1102, or not, I humbly submit this opinion for whatever if may be worth, with the hope that the
officials and the citizens of this country will take note of it, and ponder over it. I am only doing my
duty according to the light that God has given me.
Footnotes
Concepcion, C.J. concurring:
1 Mun. of Malabang v. Benito, L-28113, March 28, 1969; NAWASA v. Piguing, et al.,
L- 35573, Oct. 11, 1968; Fernandez v. P. Cuerva & Co., L-21114, Nov. 25, 1967;
Gonzales v. Commission on Elections, L-28224, Nov. 29, 1967; Bara Lidasan v.
COMELEC, L-28089, Oct. 25, 1967; Mun. of San Juan v. NAWASA, L-22047, Aug.
31, 1967; Mun. of San Joaquin v. Siva, L-19870, March 18, 1967; Pelayo v. Auditor
General, L-23825, Dec. 24, 1965; Philippine Constitution Association v. Gimenez, L23326, Dec. 18, 1965; Mun. of La Carlota v. NAWASA, L-20232, Sept. 30, 1964;
Guevara v. Inocentes, L-25577, March 15, 1966; Gillera v. Fernandez, L-20741, Jan.
31, 1964; Siguiente v. Secretary of Justice, L-20370, Nov. 29, 1963; Mun. of
Naguilian v. NAWASA, L-18540, Nov. 29, 1963; Herrera v. Liwag, L-20079, Sept. 30,
1963; Aytona v. Castillo, L-19313, Jan. 19, 1962; La Mallorca, etc. v. Ramos, et al.,
L-15476, Sept. 19, 1961; Tan v. De Leon, et al., L-15254, Sept. 16, 1961; Macias v.
Commission on Elections, L-18684, Sept. 14, 1961; Philippine Tobacco Flue-Curing
& Redrying Corp. v. Sabugo, et al., L-16017, Aug. 31, 1961; Miller v. Mardo, L15138, July 31, 1961; Cu Bu Liong v. Estrella, et al.,
L-14212, July 31, 1961; Pampanga Sugar Development Co., Inc. v. Fuentes, et al.,
L-14738, July 31, 1961; Earnshaw Docks & Honolulu Iron Works v. Mardo, et al., L14759, July 31, 1961; Liwanag v. Central Azucarera Don Pedro, L-15372, July 31,
1961; Lecura v. Regional Office No. 3, etc., L-15582, July 31, 1961; Pitogo v. Sen
Bee Trading Co., et al., L-15693, July 31, 1961; Pascual v. Secretary of Public Works
and Communications, L-10405, Dec. 29, 1960; Corominas, Jr. v. Labor Standards
Commission, L-14837, June 30, 1961; City of Baguio v. NAWASA, L-12032, Aug. 31,
1959; City of Cebu v. NAWASA, L-12892, April 20, 1960; Montes v. Civil Service
Board of Appeals, 101 Phil. 490; Rutter v. Esteban, 93 Phil. 68; Araneta v.
Dinglasan, 84 Phil. 368; Borromeo v. Mariano, 41 Phil. 322.
2 Reiterated in the aforementioned Proposed Constitution [Subdivision (2) (a) of
Section 5, Article X thereof].
Teehankee, J., concurring:

1 Such Citizens Assemblies, as stated in the proclamation, 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." (2nd whereas clause)
2 6th whereas clause.
3 The conduct of such elections (or plebiscite) is, under Article X of the Constitution,
entrusted to the Commission on Elections which has "exclusive charge" (See Justice
Barredo's separate opinion, p. 7). Under Article V of the Constitution, the right of
suffrage is limited to qualified and duly registered voters, "who are 21 years of age or
over and are able to read and write." Tolentino vs. Comelec, infra, in denying
reconsideration, prohibited the submittal in an advance election of the Con-Cons
Organic Res. No. 1 proposing to lower the voting age to 18, as a piece-meal and
incomplete amendment and rejected the contention "that the end sought to be
achieved is to be desired." As per Barredo, J., "if this kind of amendment is allowed,
the Philippines will appear before the world to be in the absurd position of being the
only country with a Constitution containing a provision so ephemeral no one knows
until when it will be actually in force."
4 Article VI, sec. 23, par. 2 of the Constitution, provides that "No money shall be paid
out of the Treasury except in pursuance of an appropriation made by law."
5 Cf. Tolentino vs. Comelec, L-34150, Oct. 16, 1971 and Resolution on motion for
reconsideration with concurring opinions. Nov. 4, 1971.
6 See text, Presidential Decree No. 73.
7 Article XVI, sec. 1, par. 1 of the proposed Constitution.
Barredo, J., concurring and dissenting:
1 It was agreed in the deliberations that the validity of Presidential Decree No. 73
would be passed upon as if Proclamation 1102 did not exist, and afterwards, for
those who would like to express their views on the matter, the validity of
Proclamation 1102 itself, hence the tenses and moods in this discussion.
2 Under the Constitution of 1935, both Article X and Article XV use the same word
"election", hence, the plebiscite contemplated in the latter Article must be deemed to
be intended to be included among the elections placed under the charge of the
Commission, irrespective of the form to be employed therein.
Fernando, J., concurring and dissenting:
1 327 US 304 (1946).
2 Ex parte Kerby 205 P. 279 (1922).
3 L-32476, Oct. 20, 1970, 35 SCRA 367.

4 Ibid, 369.
5 Cf. Koehler v. Hill, 14 NW 738, 60 Iowa 543 (1883); Hatch v. Stoneman, 6 P. 734,
66 Cal. 632 (1885); Macmillan v. Blattner 25 NW 245, 67 Iowa 287 (1895); State v.
Powell, 27 So 297, 77 Miss. 543 (1900); Hammond v. Clark, 71 SE 479, 136 Ga. 313
(1911); State v. Hall, 171 NW 213, 44 ND 459 (1919); Hamilton v. Vaughan, 179 NW
533, 212 Mich. 31 (1920) ; State v. Smith, 138 NE 881, 105 Ohio St. 570 (1922):
Looney v. Leeper, 292 P. 365, 145 Okl. 202 (1930); School District v. City of Pontiac,
247 NW 474, 262 Mich. 338 (1933).
6 According to Art. VI, Sec. 23. par. 2 of the Constitution: "No money shall be paid
out of the Treasury except in pursuance of an appropriation made by law."
7 Cf. Hutcheson v. Gonzales, 71 P. 2d 140 (1937) : State Smith, 184 SW 2d 598
(1945).
8 L-28196 and 28224, November 9, 1967, 21 SCRA 774.
9 Ibid, 801-802.
10 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936); People v. Vera, 65 Phil.
56 (1937); Planas v. Gil, 67 Phil. 62 (1939): Tan v. Macapagal, L-24161, Feb. 29,
1972, 43 SCRA 677.
Zaldivar, J., dissenting:
1 Reserve Lite Ins. Co., Dallas, Tex. v. Franfather, 225 P. 2d 1035, 1036, 123 Colo.
77, 39 A.L.R. 2d 146; Appeal of Frank Foundries Corporation, 56 N.E. 2d 649, 652,
653, 323, III. App. 594 in 27A Words and Phrases, p. 145.
2 Krivenko vs. Register of Deeds, 79 Phil. 461; Philippine Association of Colleges
and Universities vs. Secretary of Education, 97 Phil. 806; Hebron vs. Reyes, 104
Phil. 175.
3 Annex 1 of the Answer of the Respondents in L-35948 shows the resolution of the
Constitutional Convention of November 22, 1972, proposing to President Marcos that
a decree be issued calling for a plebiscite is Resolution No. 29. "Resolution No.
5843" is as stated in Presidential Decree No. 73.
4 Words within quotation marks in this paragraph are as quoted from the Urgent
Motion For Decision in L-35948, dated January 12, 1973.
5 As quoted from General Order No. 20, January 7, 1973.

Today is Tuesday, November 25, 2014

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,


vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,


vs.
COMMISSION ELECTIONS, respondent.

G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN,


petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

MARTIN, J,:

The capital question raised in these prohibition suits with preliminary injunction
relates to the power of the incumbent President of the Philippines to propose
amendments to the present Constitution in the absence of the interim National
Assembly which has not been convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree


No. 991 calling for a national referendum on October 16, 1976 for the Citizens
Assemblies ("barangays") to resolve, among other things, the issues of martial law,
the I . assembly, its replacement, the powers of such replacement, the period of its
existence, the length of the period for tile exercise by the President of his present
powers.1

Twenty days after or on September 22, 1976, the President issued another related
decree, Presidential Decree No. 1031, amending the previous Presidential Decree
No. 991, by declaring the provisions of presidential Decree No. 229 providing for the
manner of voting and canvass of votes in "barangays" (Citizens Assemblies)
applicable to the national referendum-plebiscite of October 16, 1976. Quite
relevantly, Presidential Decree No. 1031 repealed Section 4, of Presidential Decree
No. 991, the full text of which (Section 4) is quoted in the footnote below. 2

On the same date of September 22, 1976, the President issued Presidential Decree
No. 1033, stating the questions to be submitted to the people in the referendumplebiscite on October 16, 1976. The Decree recites in its "whereas" clauses that the
people's continued opposition to the convening of the National Assembly evinces
their desire to have such body abolished and replaced thru a constitutional
amendment, providing for a legislative body, which will be submitted directly to the
people in the referendum-plebiscite of October 16.

The questions ask, to wit:

(1) Do you want martial law to be continued?

(2) Whether or not you want martial law to be continued, do you approve the
following amendments to the Constitution? For the purpose of the second question,
the referendum shall have the effect of a plebiscite within the contemplation of
Section 2 of Article XVI of the Constitution.

PROPOSED AMENDMENTS:

1. There shall be, in lieu of the interim National Assembly, an interim Batasang
Pambansa. Members of the interim Batasang Pambansa which shall not be more
than 120, unless otherwise provided by law, shall include the incumbent President of
the Philippines, representatives elected from the different regions of the nation, those
who shall not be less than eighteen years of age elected by their respective sectors,
and those chosen by the incumbent President from the members of the Cabinet.
Regional representatives shall be apportioned among the regions in accordance with
the number of their respective inhabitants and on the basis of a uniform and
progressive ratio while the sectors shall be determined by law. The number of
representatives from each region or sector and the, manner of their election shall be
prescribed and regulated by law.

2. The interim Batasang Pambansa shall have the same powers and its members
shall have the same functions, responsibilities, rights, privileges, and disqualifications
as the interim National Assembly and the regular National Assembly and the
members thereof. However, it shall not exercise the power provided in Article VIII,
Section 14(l) of the Constitution.

3. The incumbent President of the Philippines shall, within 30 days from the election
and selection of the members, convene the interim Batasang Pambansa and preside
over its sessions until the Speaker shall have been elected. The incumbent President
of the Philippines shall be the Prime Minister and he shall continue to exercise all his
powers even after the interim Batasang Pambansa is organized and ready to
discharge its functions and likewise he shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty five. Constitution and the powers
vested in the President and the Prime Minister under this Constitution.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers and
functions, and discharge the responsibilities of the regular President (Prime Minister)
and his Cabinet, and shall be subject only to such disqualifications as the President
(Prime Minister) may prescribe. The President (Prime Minister) if he so desires may
appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may
deem necessary.

5. The incumbent President shall continue to exercise legislative powers until martial
law shall have been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders or letters of
instructions, which shall form part of the law of the land.

7. The barangays and sanggunians shall continue as presently constituted but their
functions, powers, and composition may be altered by law.

Referenda conducted thru the barangays and under the Supervision of the
Commission on Elections may be called at any time the government deems it
necessary to ascertain the will of the people regarding any important matter whether
of national or local interest.

8. All provisions of this Constitution not inconsistent with any of these amendments
shall continue in full force and effect.

9. These amendments shall take effect after the incumbent President shall have
proclaimed that they have been ratified by I majority of the votes cast in the
referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and control
of the October 1976 National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father


and son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to
enjoin the Commission on Elections from holding and conducting the Referendum
Plebiscite on October 16; to declare without force and effect Presidential Decree
Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well
as Presidential Decree No. 1031, insofar as it directs the Commission on Elections to

supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on


October 16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to
the incumbent President to exercise the constituent power to propose amendments
to the new Constitution. As a consequence, the Referendum-Plebiscite on October
16 has no constitutional or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections, The Solicitor General principally maintains that petitioners
have no standing to sue; the issue raised is political in nature, beyond judicial
cognizance of this Court; at this state of the transition period, only the incumbent
President has the authority to exercise constituent power; the referendum-plebiscite
is a step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction,
docketed as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the
1971 Constitutional Convention, asserting that the power to propose amendments to,
or revision of the Constitution during the transition period is expressly conferred on
the interim National Assembly under Section 16, Article XVII of the Constitution.3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5,
1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN,
docketed as L- 44714, to restrain the implementation of Presidential Decrees relative
to the forthcoming Referendum-Plebiscite of October 16.

These last petitioners argue that even granting him legislative powers under Martial
Law, the incumbent President cannot act as a constituent assembly to propose
amendments to the Constitution; a referendum-plebiscite is untenable under the
Constitutions of 1935 and 1973; the submission of the proposed amendments in
such a short period of time for deliberation renders the plebiscite a nullity; to lift
Martial Law, the President need not consult the people via referendum; and allowing
15-.year olds to vote would amount to an amendment of the Constitution, which
confines the right of suffrage to those citizens of the Philippines 18 years of age and
above.

We find the petitions in the three entitled cases to be devoid of merit.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C.


Sanidad and Pablito V. Sanidad) possess locus standi to challenge the constitutional
premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule
that the valid source of a stature Presidential Decrees are of such nature-may be
contested by one who will sustain a direct injuries as a in result of its enforcement. At
the instance of taxpayers, laws providing for the disbursement of public funds may be
enjoined, upon the theory that the expenditure of public funds by an officer of the
State for the purpose of executing an unconstitutional act constitutes a
misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries
all appropriation of Five Million Pesos for the effective implementation of its
purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million
Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as
taxpayers in the lawful expenditure of these amounts of public money sufficiently
clothes them with that personality to litigate the validity of the Decrees appropriating
said funds. Moreover, as regards taxpayer's suits, this Court enjoys that open
discretion to entertain the same or not. 7 For the present case, We deem it sound to
exercise that discretion affirmatively so that the authority upon which the disputed
Decrees are predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a pure political one,
lying outside the domain of judicial review. We disagree. The amending process both
as to proposal and ratification, raises a judicial question. 8 This is especially true in
cases where the power of the Presidency to initiate the of normally exercised by the
legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power
to propose amendments o the constitution resides in the interim National Assembly
in the period of transition (See. 15, Transitory provisions). After that period, and the
regular National Assembly in its active session, the power to propose amendments
becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1
and 2 of Art. XVI, 1973 constitution). The normal course has not been followed.
Rather than calling the National Assembly to constitute itself into a constituent
assembly the incumbent President undertook the proposal of amendments and
submitted the proposed amendments thru Presidential Decree 1033 to the people in
a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of the
procedure for amendments, written in lambent words in the very Constitution sought
to be amended, raises a contestable issue. The implementing Presidential Decree
Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of
legislation are assailed as invalid, thus the issue of the validity of said Decrees is
plainly a justiciable one, within the competence of this Court to pass upon. Section 2
(2), Article X of the new Constitution provides: "All cases involving the
constitutionality of a treaty, executive agreement, or law may shall be heard and
decided by the Supreme Court en banc and no treaty, executive agreement, or law
may be declared unconstitutional without the concurrence of at least ten Members.

..." The Supreme Court has the last word in the construction not only of treaties and
statutes, but also of the Constitution itself The amending, like all other powers
organized in the Constitution, is in form a delegated and hence a limited power, so
that the Supreme Court is vested with that authorities to determine whether that
power has been discharged within its limits.

Political questions are neatly associated with the wisdom, of 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. 10

We cannot accept the view of the Solicitor General, in pursuing his theory of nonjusticiability, that the question of the President's authority to propose amendments
and the regularity of the procedure adopted for submission of the proposal to the
people ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle.
Is it not that the people themselves, by their sovereign act, provided for the authority
and procedure for the amending process when they ratified the present Constitution
in 1973? Whether, therefore, the constitutional provision has been followed or not is
the proper subject of inquiry, not by the people themselves of course who exercise
no power of judicial 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 prior not a posterior i.e., before the submission to and ratification by
the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline
the preference of the Court's majority to treat such issue of Presidential role in the
amending process as one of non-political impression. In the Plebiscite Cases, 11 the
contention of the Solicitor General that the issue on the legality of Presidential
Decree No. 73 "submitting to the Pilipino people (on January 15, 1973) for ratification
or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention and appropriating fund s therefore "is a political one, was
rejected and the Court unanimously considered the issue as justiciable in nature.
Subsequently in the Ratification Cases 12 involving the issue of whether or not the
validity of Presidential Proclamation No. 1102. announcing the Ratification by the
Filipino people of the constitution proposed by the 1971 Constitutional Convention,"
partakes of the nature of a political question, the affirmative stand of' the Solicitor
General was dismissed, the Court ruled that the question raised is justiciable. Chief
Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned

plebiscite cases, We rejected the theory of the respondents therein that the question
whether Presidential Decree No. 73 calling a plebiscite to be held on January 15,
1973, for the ratification or rejection of the proposed new Constitution, was valid or
not, was not a proper subject of judicial inquiry because, they claimed, it partook of a
political nature, and We unanimously declared that the issue was a justiciable one.
With Identical unanimity. We overruled the respondent's contention in the 1971
habeas corpus cases, questioning Our authority to determine the constitutional
sufficiency of the factual bases of the Presidential proclamation suspending the
privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view
taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as
it adhered to the former case, which view We, accordingly, abandoned and refused
to apply. For the same reason, We did not apply and expressly modified, in Gonzales
vs. Commission on Elections, the political-question theory adopted in Mabanag vs.
Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito,
urged by the Solicitor General, was decisively refused by the Court. Chief Justice
Concepcion continued: "The reasons adduced in support thereof are, however,
substantially the same as those given in support on 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 decisions in the aforementioned habeas corpus
cases partakes of the nature and effect of a stare decisis which gained added weight
by its virtual reiteration."

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may, by a vote of two-thirds of
all its Members, call a constitutional convention or, by a majority vote of all its
Members, submit the question of calling such a convention to the electorate in an
election.

SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than
three months after the approval of such amendment or revision.

In the present period of transition, the interim National Assembly instituted in the
Transitory Provisions is conferred with that amending power. Section 15 of the
Transitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to this
Constitution. Such amendments shall take effect when ratified in accordance with
Article Sixteen hereof.

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

2. This Court in Aquino v. COMELEC," had already settled that the incumbent
President is vested with that prerogative of discretion as to when he shall initially
convene the interim National Assembly. Speaking for the majority opinion in that
case, Justice Makasiar said: "The Constitutional Convention intended to leave to the
President the determination of the time when he shall initially convene the interim
National Assembly, consistent with the prevailing conditions of peace and order in
the country." Concurring, Justice Fernandez, himself a member of that Constitutional
Convention, revealed: "(W)hen the Delegates to the Constitutional Convention voted
on the Transitory Provisions, they were aware of the fact that under the same, the
incumbent President was given the discretion as to when he could convene the
interim National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza;
as a matter of fact, the proposal that it be convened 'immediately', made by Delegate
Pimentel (V) was rejected. The President's decision to defer the convening of the
interim National Assembly soon found support from the people themselves. In the
plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution
was submitted, the people voted against the convening of the interim National
Assembly. In the referendum of July 24, 1973, the Citizens Assemblies
("bagangays") reiterated their sovereign will to withhold the convening of the interim
National Assembly. Again, in the referendum of February 27, 1975, the proposed
question of whether the interim National Assembly shall be initially convened was
eliminated, because some of the members of Congress and delegates of the

Constitutional Convention, who were deemed automatically members of the I interim


National Assembly, were against its inclusion since in that referendum of January,
1973, the people had already resolved against it.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals
of amendment to a Constitution, that body is not in the usual function of lawmaking. lt
is not legislating when engaged in the amending process.16 Rather, it is exercising a
peculiar power bestowed upon it by the fundamental charter itself. In the Philippines,
that power is provided for in Article XVI of the 1973 Constitution (for the regular
National Assembly) or in Section 15 of the Transitory Provisions (for the National
Assembly). While ordinarily it is the business of the legislating body to legislate for
the nation by virtue of constitutional conferment amending of the Constitution is not
legislative in character. In political science a distinction is made between
constitutional content of an organic character and that of a legislative character'. The
distinction, however, is one of policy, not of law. 17 Such being the case, approval of
the President of any proposed amendment is a misnomer 18 The prerogative of the
President to approve or disapprove applies only to the ordinary cases of legislation.
The President has nothing to do with proposition or adoption of amendments to the
Constitution. 19

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisis


government today are more or less concentrated in the President. 20 According to
Rossiter, "(t)he concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers. In most free states it has generally been regarded as
imperative that the total power of the government be parceled out among three
mutually independent branches executive, legislature, and judiciary. It is believed to
be destructive of constitutionalism if any one branch should exercise any two or more
types of power, and certainly a total disregard of the separation of powers is, as
Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal
times the separation of powers forms a distinct obstruction to arbitrary governmental

action. By this same token, in abnormal times it may form an insurmountable barrier
to a decisive emergency action in behalf of the state and its independent existence.
There are moments in the life of any government when all powers must work
together in unanimity of purpose and action, even if this means the temporary union
of executive, legislative, and judicial power in the hands of one man. The more
complete the separation of powers in a constitutional system, the more difficult and
yet the more necessary will be their fusion in time of crisis. This is evident in a
comparison of the crisis potentialities of the cabinet and presidential systems of
government. In the former the all-important harmony of legislature and executive is
taken for granted; in the latter it is neither guaranteed nor to be to confidently
expected. As a result, cabinet is more easily established and more trustworthy than
presidential dictatorship. The power of the state in crisis must not only be
concentrated and expanded; it must also be freed from the normal system of
constitutional and legal limitations. 21 John Locke, on the other hand, claims for the
executive in its own right a broad discretion capable even of setting aside the
ordinary laws in the meeting of special exigencies for which the legislative power had
not provided. 22 The rationale behind such broad emergency powers of the
Executive is the release of the government from "the paralysis of constitutional
restrains" so that the crisis may be ended and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now a


conceded valid at. That sun clear authority of the President is saddled on Section 3
(pars. 1 and 2) of the Transitory Provisions, thus: 23

The incumbent President of the Philippines shall initially convene the interim National
Assembly and shall preside over its sessions until the interim Speaker shall have
been elected. He shall continue to exercise his powers and prerogatives under the
nineteen hundred and thirty-five Constitution and the powers vested in the President
and the Prime Minister under this Constitution until the calls upon the interim National
Assembly to elect the interim President and the interim Prime Minister, who shall
then exercise their respective powers vested by this Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or


done by the incumbent President shall be part of the law of the land, and shall
remain valid, binding, and effective even after lifting of martial law or the ratification of
this Constitution, unless modified, revoked, or superseded by subsequent
proclamations, orders, decrees, instructions, or other acts of the incumbent
President, or unless expressly and explicitly modified or repealed by the regular
National Assembly.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention


delegate, "that the Constitutional Convention, while giving to the President the
discretion when to call the interim National Assembly to session, and knowing that it
may not be convened soon, would create a vacuum in the exercise of legislative

powers. Otherwise, with no one to exercise the lawmaking powers, there would be
paralyzation of the entire governmental machinery." 24 Paraphrasing Rossiter, this
is an extremely important factor in any constitutional dictatorship which extends over
a period of time. The separation of executive and legislature ordained in the
Constitution presents a distinct obstruction to efficient crisis government. The steady
increase in executive power is not too much a cause for as the steady increase in the
magnitude and complexity of the problems the President has been called upon by
the Filipino people to solve in their behalf, which involve rebellion, subversion,
secession, recession, inflation, and economic crisis-a crisis greater than war. In
short, while conventional constitutional law just confines the President's power as
Commander-in-Chief to the direction of the operation of the national forces, yet the
facts of our political, social, and economic disturbances had convincingly shown that
in meeting the same, indefinite power should be attributed to tile President to take
emergency measures 25

IV

Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the


interim National Assembly during the transition period. However, the initial convening
of that Assembly is a matter fully addressed to the judgment of the incumbent
President. And, in the exercise of that judgment, the President opted to defer
convening of that body in utter recognition of the people's preference. Likewise, in
the period of transition, the power to propose amendments to the Constitution lies in
the interim National Assembly upon special call by the President (See. 15 of the
Transitory Provisions). Again, harking to the dictates of the sovereign will, the
President decided not to call the interim National Assembly. Would it then be within
the bounds of the Constitution and of law for the President to assume that constituent
power of the interim Assembly vis-a-vis his assumption of that body's legislative
functions? The answer is yes. If the President has been legitimately discharging the
legislative functions of the interim Assembly, there is no reason why he cannot validly
discharge the function of that Assembly to propose amendments to the Constitution,
which is but adjunct, although peculiar, to its gross legislative power. This, of course,
is not to say that the President has converted his office into a constituent assembly of
that nature normally constituted by the legislature. Rather, with the interim National
Assembly not convened and only the Presidency and the Supreme Court in
operation, the urges of absolute necessity render it imperative upon the President to

act as agent for and in behalf of the people to propose amendments to the
Constitution. Parenthetically, by its very constitution, the Supreme Court possesses
no capacity to propose amendments without constitutional infractions. For the
President to shy away from that actuality and decline to undertake the amending
process would leave the governmental machineries at a stalemate or create in the
powers of the State a destructive vacuum, thereby impeding the objective of a crisis
government "to end the crisis and restore normal times." In these parlous times, that
Presidential initiative to reduce into concrete forms the constant voices of the people
reigns supreme. After all, constituent assemblies or constitutional conventions, like
the President now, are mere agents of the people .26

2. The President's action is not a unilateral move. As early as the referendums of


January 1973 and February 1975, the people had already rejected the calling of the
interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang
Katipunan ng mga Barangay, representing 42,000 barangays, about the same
number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities,
72 provinces, 3 sub-provinces, and 60 cities had informed the President that the
prevailing sentiment of the people is for the abolition of the interim National
Assembly. Other issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its replacement,
the period of its existence, the length of the period for the exercise by the President
of its present powers in a referendum to be held on October 16 . 28 The Batasang
Bayan (legislative council) created under Presidential Decree 995 of September 10,
1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of
the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga
Sangguniang Bayan voted in session to submit directly to the people in a plebiscite
on October 16, the previously quoted proposed amendments to the Constitution,
including the issue of martial law .29 Similarly, the "barangays" and the
"sanggunians" endorsed to the President the submission of the proposed
amendments to the people on October 16. All the foregoing led the President to
initiate the proposal of amendments to the Constitution and the subsequent issuance
of Presidential Decree No, 1033 on September 22, 1976 submitting the questions
(proposed amendments) to the people in the National Referendum-Plebiscite on
October 16.

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily


seen. In the Philippines, a republican and unitary state, sovereignty "resides in the
people and all government authority emanates from them .30 In its fourth meaning,

Savigny would treat people as "that particular organized assembly of individuals in


which, according to the Constitution, the highest power exists." 31 This is the
concept of popular sovereignty. It means that the constitutional legislator, namely the
people, is sovereign 32 In consequence, the people may thus write into the
Constitution their convictions on any subject they choose in the absence of express
constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an
experiment, as all life is all experiment." 34 "The necessities of orderly government,"
wrote Rottschaefer, "do not require that one generation should be permitted to
permanently fetter all future generations." A constitution is based, therefore, upon a
self-limiting decision of the people when they adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to the people to


exercise their sovereign power as constitutional legislator. The proposed
amendments, as earlier discussed, proceed not from the thinking of a single man.
Rather, they are the collated thoughts of the sovereign will reduced only into enabling
forms by the authority who can presently exercise the powers of the government. In
equal vein, the submission of those proposed amendments and the question of
martial law in a referendum-plebiscite expresses but the option of the people
themselves implemented only by the authority of the President. Indeed, it may well
be said that the amending process is a sovereign act, although the authority to
initiate the same and the procedure to be followed reside somehow in a particular
body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you


want martial law to be continued? - is a referendum question, wherein the 15-year
olds may participate. This was prompted by the desire of the Government to reach
the larger mas of the people so that their true pulse may be felt to guide the
President in pursuing his program for a New Order. For the succeeding question on
the proposed amendments, only those of voting age of 18 years may participate.
This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes of those 18

years old and above which will have valid bearing on the results. The fact that the
voting populace are simultaneously asked to answer the referendum question and
the plebiscite question does not infirm the referendum-plebiscite. There is nothing
objectionable in consulting the people on a given issue, which is of current one and
submitting to them for ratification of proposed constitutional amendments. The fear of
commingled votes (15-year olds and 18-year olds above) is readily dispelled by the
provision of two ballot boxes for every barangay center, one containing the ballots of
voters fifteen years of age and under eighteen, and another containing the ballots of
voters eighteen years of age and above. 37 The ballots in the ballot box for voters
fifteen years of age and under eighteen shall be counted ahead of the ballots of
voters eighteen years and above contained in another ballot box. And, the results of
the referendum-plebiscite shall be separately prepared for the age groupings, i.e.,
ballots contained in each of the two boxes. 38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A


"referendum" is merely consultative in character. It is simply a means of assessing
public reaction to the given issues submitted to the people foe their consideration,
the calling of which is derived from or within the totality of the executive power of the
President. 39 It is participated in by all citizens from the age of fifteen, regardless of
whether or not they are illiterates, feeble-minded, or ex- convicts . 40 A "plebiscite,"
on the other hand, involves the constituent act of those "citizens of the Philippines
not otherwise disqualified by law, who are eighteen years of age or over, and who
shall have resided in the Philippines for at least one year and in the place wherein
they propose to vote for at least six months preceding the election Literacy, property
or any other substantive requirement is not imposed. It is generally associated with
the amending process of the Constitution, more particularly, the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial law
stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial
law regime which, in the observation of Justice Fernando, 41 is impressed with a
mild character recorded no State imposition for a muffled voice. To be sure, there are
restraints of the individual liberty, but on certain grounds no total suppression of that
liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all
the embracing freedoms of expression and assembly The President himself had
announced that he would not countenance any suppression of dissenting views on
the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine
sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found
their way to the public forums, voicing out loud and clear their adverse views on the
proposed amendments and even (in the valid ratification of the 1973 Constitution,
which is already a settled matter. 43 Even government employees have been held by
the Civil Service Commission free to participate in public discussion and even
campaign for their stand on the referendum-plebiscite issues. 44

VIII

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too


short for free debates or discussions on the referendum-plebiscite issues. The
questions are not new. They are the issues of the day. The people have been living
with them since the proclamation of martial law four years ago. The referendums of
1973 and 1975 carried the same issue of martial law. That notwithstanding, the
contested brief period for discussion is not without counterparts in previous
plebiscites for constitutional amendments. Justice Makasiar, in the Referendum
Case, recalls: "Under the old Society, 15 days were allotted for the publication in
three consecutive issues of the Official Gazette of the women's suffrage amendment
to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No.
34). The constitutional amendment to append as ordinance the complicated TydingsKocialskowski was published in only three consecutive issues of the Official Gazette
for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for the bicameral Congress, the reelection of
the President and Vice President, and the creation of the Commission on Elections,
20 days of publication in three consecutive issues of the Official Gazette was fixed
(Com Act No. 517). And the Parity Amendment, an involved constitutional
amendment affecting the economy as well as the independence of the Republic was
publicized in three consecutive issues of the Official Gazette for 20 days prior to the
plebiscite (Rep. Act No. 73)." 45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the
specific date when the plebiscite shall be held, but simply states that it "shall be held
not later than three months after the approval of such amendment or revision." In
Coleman v. Miller, 46 the United States Supreme court held that this matter of
submission involves "an appraisal of a great variety of relevant conditions, political,
social and economic," which "are essentially political and not justiciable." The
constituent body or in the instant cases, the President, may fix the time within which
the people may act. This is because proposal and ratification are not treated as
unrelated acts, but as succeeding steps in a single endeavor, the natural inference
being that they are not to be widely separated in time; second, it is only when there is
deemed to be a necessity therefor that amendments are to be proposed, the
reasonable implication being that when proposed, they are to be considered and
disposed of presently, and third, ratification is but the expression of the approbation
of the people, hence, it must be done contemporaneously. 47 In the words of
Jameson, "(a)n alteration of the Constitution proposed today has relation to the
sentiment and the felt needs of today, and that, if not ratified early while that

sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not
again to be voted upon, unless a second time proposed by proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and
1033 political or justiciable?

2. During the present stage of the transition period, and under, the environmental
circumstances now obtaining, does the President possess power to propose
amendments to the Constitution as well as set up the required machinery and
prescribe the procedure for the ratification of his proposals by the people?

3. Is the submission to the people of the proposed amendments within the time frame
allowed therefor a sufficient and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique
M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma,
Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question
posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and
Ramon C. Aquino hold the view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while
Associate Justices Teehankee and Munoz Palma voted in the negative. Associate
Justice Fernando, conformably to his concurring and dissenting opinion in Aquino vs.
Enrile (59 SCRA 183), specifically dissents from the proposition that there is
concentration of powers in the Executive during periods of crisis, thus raising serious
doubts as to the power of the President to propose amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and
proper submission of the proposed amendments for ratification by the people.

Associate Justices Barredo and Makasiar expressed the hope, however that the
period of time may be extended. Associate Justices Fernando, Makasiar and Antonio
are of the view that the question is political and therefore beyond the competence
and cognizance of this Court, Associate Justice Fernando adheres to his
concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC
(21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that
prescinding from the President's lack of authority to exercise the constituent power to
propose the amendments, etc., as above stated, there is no fair and proper
submission with sufficient information and time to assure intelligent consent or
rejection under the standards set by this Court in the controlling cases of Gonzales,
supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as
expressed in his separate opinion, Associate Justice Fernando concurs in the result.
Associate Justices Teehankee and Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby
dismissed. This decision is immediately executory.

SO ORDERED.

Aquino, J, in the result.

Separate Opinions

CASTRO, C.J.:, concurring:

From the challenge as formulated in the three petitions at bar and the grounds
advanced be the Solicitor General in opposition thereto, as well as the arguments
adduced by the counsels of the parties at the hearing had on October 7 and 8, 1976,
three vital issues readily project themselves as the centers of controversy, namely:

(1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and
1033 political or justiciable?

(2) During the present stage of the transition period, and under the environmental
circumstances now obtaining, does the President possess power to propose
amendments to the Constitution as well as set up the required machineries and
prescribe the procedure for the ratification of his proposals by the people?

(3) Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper, submission"

First Issue

The threshold question is not at all one of first impression Specifically on the matter
of proposals to amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78
Phil. 1), inceptively announced the dictum that-

Proposal to amend the Constitution is a highly political function performed by the


Congress in its sovereign legislative capacity and committed to its charges by the
Constitution itself. The exercise of this power is even independent of any intervention
by the Chief Executive. If on grounds of expediency scrupulous attention of the
judiciary be needed to safeguard public interest, there is less reason for judicial
inquiry into the validity of a proposal than into that of a ratification.

In time, however, the validity of the said pronouncement was eroded. In the
assessment of the Court itself-

The force of this precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581, March 4 and
14, 1949), Tanada vs. Cuenco (L-10520, February 28, 1957), and Macias vs.
Commission on Elections (L-18684, September 14, 1961).

xxx xxx xxx

In short, the issue whether or not a Resolution of Congress-acting as a constituent


assembly-violates the Constitution is essentially justiciable, not political, and, hence,
subject to judicial review, and, to the extent this view may be inconsistent with the
stand taken in Mabanag vs. Lopez Vito the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point." (Gonzales vs.
Commission on Elections, et al, L-28196, November 9, 1967, 21 SCRA 774, 786787).

The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been
completed when, in Javellana vs. Secretary, et al. (L-36142, March 3l, 1973, 50
SCRA 30), six members of the Court concurred in the view that the question of
whether the 1973 Constitution was ratified in accordance with the provisions of
Article XV (Amendments) of the 1935 Constitution is inherently and essentially
justiciable.

As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103 Phil.
1051)-

... the term 'political question' connotes, in legal parlance, what it means in ordinarily
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." (Javellana vs. Executive Secretary,
supra).

So it is in the situation here presented. The basic issue is the constitutional validity of
the presidential acts of proposing amendments to the Constitution and of calling a
referendum-plebiscite for the ratification of the proposals made. Evidently, the
question does not concern itself with the wisdom of the exercise of the authority

claimed or of the specific amendments proposed. Instead the inquiry vel non is
focused solely on the existence of the said power in the President - a question purely
of legality determinable thru interpretation and construction of the letter and spirit of
the Constitution by the Court as the final arbiter in the delineation of constitutional
boundaries and the allocation of constitutional powers.

For the Court to shun cognizance of the challenge herein presented, especially in
these parlous years, would be to abdicate its constitutional powers, shirk its
constitutional responsibility, and deny the people their ultimate recourse for judicial
determination.

I have thus no hesitancy in concluding that the question here presented is well within
the periphery of judicial inquiry.

II

Second Issue

The main question stands on a different footing; it appears unprecedented both here
and elsewhere. Its solution, I believe, can be found and unraveled only by a critical
assessment of the existing legal order in the light of the prevailing political and
factual milieu.

To be sure, there is an impressive array of consistent jurisprudence on the


proposition that, normally or under normal conditions, a Constitution may be
amended only in accord with the procedure set forth therein. Hence, if there be any
such prescription for the amendatory process as invariable there is because one of
the essential parts of a Constitution is the so-called "constitution of sovereignty"
which comprises the provision or provisions on the modes in accordance with which
formal changes in the fundamental law may be effected the same would ordinarily be
the controlling criterion for the validity of the amendments sought.

Unfortunately, however, during the present transition period of our political


development, no express provision is extant in the Constitution regarding the agency
or agent by whom and the procedure by which amendments thereto may be
proposed and ratified fact overlooked by those who challenge the validity of the
presidential acts in the premises. This is so because there are at least two distinctly

in the transition from the old system of government under the 1935 Constitution to
the new one established by the 1973 Constitution.

The first stage comprises the period from the effectivity of the Constitution on
January 17, 1973 to the time the National Assembly is convened by the incumbent
President and the interim President and the interim Prime Minister are chosen Article
XVII, Sections 1 and 3[1]. The existence of this stage as an obvious fact of the
nation's political life was recognized by the Court in Aquino vs. Commission on
Elections, et al. (L-40004, January 31, 1975, 62 SCRA 275), when it rejected the
claim that, under the 1973 Constitution, the President was in duty bound to convene
the interim National Assembly soon after the Constitution took effect.

The second stage embraces the period from the date the interim National Assembly
is convened to the date the Government described in Articles VII to IX of the
Constitution is inaugurated, following the election of the members of the regular
National Assembly (Article XVII, Section 1) and the election of the regular President
and Prime Minister,. This is as it should be because it is recognized that the
President has been accorded the discretion to determine when he shall initially
convene the interim National Assembly, and his decision to defer the convocation
thereof has found overwhelming support by the sovereign people in two previous
referenda, therein giving reality to an interregnum between the effectivity of the
Constitution and the initial convocation of the interim National Assembly, which
interregnum, as aforesaid, constitutes the first stage in the transition period.

Against this factual backdrop, it is readily discernible that neither of the two sets of
provisions embodied in the Constitution on the amendatory process applied during
the said first stage. Thus, Section 15, Article XVII (Transitory Provisions) provides-

"Sec. 15. The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to this
Constitution. Such amendments shall take effect when ratified in accordance with
Article Sixteen hereof."

Patently, the reference to the "interim National Assembly" and the "interim Prime
Minister" limits the application thereof to the second stage of the transition period,
i.e.,., after the interim? National Assembly shall have been convened and the interim
Prime Minister shall have been chosen.

Upon the other hand, the provisions of Article XVI (Amendments), to wit-

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention.

(2) The National Assembly may, by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its Members, submit the
question of ceiling such a convention to the electorate in an election.

SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than
three months after the approval of such amendment or revision.

unequivocally contemplate amendments after the regular Government shall have


become fully operative, referring as they do to the National Assembly which will
come into being only at that time.

In the face of this constitutional hiatus, we are confronted with the dilemma whether
amendments to the Constitution may be effected during the aforesaid first stage and,
if in the affirmative, by whom and in what manner such amendments may be
proposed and ratified.

Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a


mere declaration of the traditions of a nation but more the embodiment of a people's
hopes and aspirations, its strictures are not unalterable. They are, instead, dynamic
precepts intended to keep in stride with and attuned to the living social organism they
seek to fashion and govern. If it is conceded that "the political or philosophical
aphorism of one generation is doubted by the next and entirely discarded by the
third," then a Constitution must be able to adjust to the changing needs and demands
of society so that the latter may survive, progress and endure. On these verities,
there can be no debate.

During the first stage of the transition period in which the Government is at present which is understandably the most critical - the need for change may be most
pressing and imperative, and to disavow the existence of the right to amend the
Constitution would be sheer political heresy. Such view would deny the people a
mechanism for effecting peaceful change, and belie the organic conception of the

Constitution by depriving it of its means of growth. Such a result obviously could not
have been intended by the framers of the fundamental law.

It seems, however, that the happenstance that the first period would come to pass
before the convocation of the interim National Assembly was not anticipated, hence,
the omission of an express mandate to govern the said situation in so far as
amendments are concerned. But such omission through inadvertence should not,
because it cannot, negate the sovereign power of the people to amend the
fundamental charter that governs their lives and their future and perhaps even the
very survival of the nation.

Upon the other hand, it is clear from the afore-quoted provisions on the amendatory
process that the intent was, instead, to provide a simpler and more expeditious mode
of amending the Constitution during the transition period. For, while under Article XVI
thereof, proposals for amendment may be made directly by the regular National
Assembly by a vote of at least three-fourths of all its members, under Section 15 of
Article XVII, a bare majority vote of all the members of the National Assembly would
suffice for the purpose. The relaxation and the disparity in the vote requirement are
revealing. The can only signify a recognition of the need to facilitate the adoption of
amendments during the second stage of the transition period so that the interim
National Assembly will be able, in a manner of speaking, to iron out the kinks in the
new Constitution, remove imperfections therein, and provide for changed or changing
circumstances before the establishment of the regular Government. In this contest,
therefore, it is inutile speculation to assume that the Constitution was intended to
render impotent or ar the effectuation of needful change at an even more critical
period - the first stage. With greater reason, therefore, must the right and power to
amend the Constitution during the first stage of te transition period be upheld, albeit
within its express and implied constraints.

Neither can it be successfully argued, in the same context and in the present
posture, that the Constitution may be amended during the said first stage only by
convening the interim National Assembly. That is to say and require that he said
stage must first be brought to an end before any amendment may be proposed and
ratified. Settled jurisprudence does not square with such a proposition. As aptly
noted in Aquino vs. Commission on Elections, et al., supra, the framers of the
Constitution set no deadline for the convening of the interim National Assembly
because they could not have foreseen how long the crises which impelled the
proclamation and justify the continued state of martial law would last. Indeed, the
framers committed to the sound judgment is not subject to judicial review, save
possibly to determine whether arbitrariness has infected such exercise; absent such
a taint, the matter is solely in the keeping of the President. To thus content that only
by convening the interim National Assembly may the Constitution be amended at this
time would effectively override the judgement vested in the President, even in default
of any he has acted arbitrarily or gravely abuse his discretion. Furthermore, to
sustain such a contention would not only negate the mandate so resoundingly
expressed by the people in two national referenda against the immediate convening

of the interim National Assembly, but as well deride their overwhelming approval of
the manner in which the President has exercised the legislative power to issue
proclamations, orders, decrees and instructions having the stature and force of law.

Given the constitutional stalemate or impasse spawned by these supervening


developments, the logical query that compels itself for resolution is: By whom, then,
may proposals for the amendment of the Constitution be made and in what manner
may said proposals be ratified by the people?

It is conventional wisdom that, conceptually, the constituent power is not to be


confuse with legislative power in general because the prerogative to propose
amendments to the Constitution is not in any sense embraced within the ambit of
ordinary law-making. Hence, there is much to recommend the proposition that, in
default of an express grant thereof, the legislature - traditionally the delegated
repository thereof - may not claim it under a general grant of legislative authority. In
the same vein, neither would it be altogether unassailable to say that because by
constitutional tradition and express allocation the constituent power under the
Constitution is locate in the law-making agency and at this stage of the transition
period the law-making authority is firmly recognized as being lodged in the President,
the said constituent power should now logically be in the hands of te President who
may thus exercise it in place of the interim National Assembly. Instead,, as pointed
out in Gonzales vs. Commission on Elections, et al., supra, the power to amend the
Constitution or to propose amendments thereto

... is part of the inherent powers of the people - as the repository of sovereignty in a
republican state, such as ours - t o make, and, hence, to amend their own
Fundamental Law.

As such, it is undoubtedly a power that only the sovereign people, either directly by
themselves or through their chosen delegate, can wield. Since it has been shown
that the people, inadvertently or otherwise, have not delegated that power to
inadvertently or otherwise, have not delegated that power to any instrumentality
during the current stage of our hegira from crisis to normalcy, it follows of necessity
that the same remains with them for them to exercise in the manner they see fit and
through the agency they choose. And, even if it were conceded that - as it is
reputedly the rule in some jurisdictions - a delegation of the constituent authority
amounts to a complete divestiture from the people of the power delegated which they
may not thereafter unilaterally reclaim from the delegate, there would be no violence
donde to such rule, assuming it to be applicable here, inasmuch as that power, under
the environmental circumstance adverted to, has not been delegated to anyone in
the first place. The constituent power during the first stage of the transition period
belongs to and remains with the people, and accordingly may be exercised by them how and when - at their pleasure.

At this juncture, a flashback to the recent and contemporary political ferment in the
country proves revelatory. The people, shocked and revolted by the "obvious
immorality" of the unabashed manner by which the delegates to the Constitutional
Convention virtually legislated themselves into office as ipso facto members of the
interim National Assembly by the mere fiat of voting for the transitory provisions of
the Constitution. and the stark reality that the unwieldy political monstrosity that the
interim Assembly portended to be would have proven to be a veritable drain on the
meager financial resources of a nation struggling for survival, have unequivocally put
their foot down, as it were, on the convocation thereof. But this patently salutary
decision of the people proved to be double-edged. It likewise bound the political
machinery of the Government in a virtual straight-jacket and consigned the political
evolution of the nation into a state of suspended animation. Faced with the ensuing
dilemma, the people understandably agitated for a solution. Through consultations in
the barangays and sanggunian assemblies, the instrumentalities through which the
people's voice is articulated in the unique system of participatory democracy in the
country today, the underpinnings for the hastening of the return to constitutional
normalcy quickly evolved into an overwhelming sentiment to amend the Constitution
in order to replace the discredited interim National Assembly with what the people
believe will be an appropriate agency to eventually take over the law-making power
and thus pave the way for the early lifting of martial rule. In pursuit of this sentiment,
and to translate its constraints into concrete action, the Pambansang Katipunan ng
Barangay, the Pambansang Katipunan ng mga Kabataang Barangay, the Lupong
Tagapagpaganap of the Katipunan ng mga Barangay, the Pambansang Katipunan
ng mga Kabataang Barangay the Lupong Tagapagpaganap of the Katipunan ng mga
Sanggunian, and finally the Batasang Bayan, to a man and as one voice, have come
forward with definitive proposals for the amendment of the Constitution, and,
choosing the President the only political arm of the State at this time through which
that decision could be implemented and the end in view attained as their spokesman,
proposed the amendments under challenge in the cases at bar.

In the light of this milieu and its imperatives, one thing is inescapable: the proposals
now submitted to the people for their ratification in the forthcoming referendumplebiscite are factually not of the President; they are directly those of the people
themselves speaking thru their authorized instrumentalities. The President merely
formalized the said proposals in Presidential Decree No. 1033. It being conceded in
all quarters that sovereignty resides in the people and it having been demonstrated
that their constituent power to amend the Constitution has not been delegated by
them to any instrumentality of the Government during the present stage of the
transition period of our political development, the conclusion is ineluctable that their
exertion of that residuary power cannot be vulnerable to any constitutional challenge
as being ultra vires. Accordingly, without venturing to rule on whether or not the
President is vested with constituent power as it does not appear necessary to do so
in the premises the proposals here challenged, being acts of the sovereign people no
less, cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant
authority to call a plebiscite and to appropriate funds therefor is even less vulnerable
not only because the President, in exercising said authority has acted as a mere alter
ego of the people who made the proposals, but likewise because the said authority is
legislative in nature rather than constituent.

III

Third Issue

Little need be said of the claimed insufficiency and impropriety of the submission of
the proposed amendments for ratification from the standpoint of time. The thesis
cannot be disputed that a fair submission presupposes an adequate time lapse to
enable the people to be sufficiently enlightened on the merits or demerits of the
amendments presented for their ratification or rejection. However, circumstances
there are which unmistakably demonstrated that the is met. Even if the proposal
appear to have been formalized only upon the promulgation of Presidential Decree
No. 1033 on September 22, 1976, they are actually the crystallization of sentiments
that for so long have preoccupied the minds of the people and their authorized
representatives, from the very lowest level of the political hierarchy. Hence, unlike
proposals emanating from a legislative body, the same cannot but be said to have
been mulled over, pondered upon, debated, discussed and sufficiently understood by
the great masses of the nation long before they ripened into formal proposals.

Besides. it is a fact of which judicial notice may well be taken that in the not so
distant past when the 1973 Constitution was submitted to the people for ratification,
an all-out campaign, in which all the delegates of the Constitutional Convention
reportedly participated, was launched to acquaint the people with the ramifications
and working of the new system of government sought to be inaugurated thereunder.
It may thus well be assumed that the people in general have since acquired, in the
least, a working knowledge of the entirety of the Constitution. The changes now
proposed the most substantial of which being merely the replacement of the interim
National assembly with another legislative arm for the Government during the
transition period until the regular National Assembly shall have been constituted do
not appear to be of such complexity as to require considerable time to be brought
home to the full understanding of the people. And, in fact, the massive and wideranging informational and educational campaign to this end has been and still is in
full swing, with all the media the barangay, the civic and sectoral groups, and even
the religious all over the land in acting and often enthusiastic if not frenetic
involvement.

Indeed, when the people cast their votes on October 16, a negative vote could very
well mean an understanding of the proposals which they reject; while an affirmative
vote could equally be indicative Of such understanding and/or an abiding credence in
the fidelity with which the President has kept the trust they have confided to him as
President and administrator of martial rule

IV

Conclusion

It is thus my considered view that no question viable for this court to pass judgment
upon is posed. Accordingly, I vote for the outright dismissal of the three petitions at
bar.

FERNANDO, J., concurring and dissenting:

These three petitions, the latest in a series of cases starting from Planas v.
Commission on Elections continuing with the epochal resolution in Javellana v.
Executive Secretary and followed successively in three crucial decisions, Aquino v.
Ponce Enrile Aquino v. Commission on Elections, and Aquino v Military Commission,
5 manifest to the same degree the delicate and awesome character of the function of
judicial review. While previous rulings supply guidance and enlightenment, care is to
be taken to avoid doctrinaire rigidity unmindful of altered circumstances and the
urgencies of the times. It is inappropriate to resolve the complex problems of a
critical period without full awareness of the consequences that flow from whatever
decision is reached. Jural norms must be read in the context of social facts, There is
need therefore of adjusting inherited principles to new needs. For law, much more so
constitutional law, is simultaneously a reflection of and a force in the society that it
controls. No quality then can be more desirable in constitutional adjudication than
that intellectual and imaginative insight which goes into the heart of the matter. The
judiciary must survey things as they are in the light of what they must become It must
inquire into the specific problem posed not only in terms of the teaching of the past
but also of the emerging political and legal theory, especially so under a leadership
notable for its innovative approach to social problems and the vigor of its
implementation. This, on the one side. It must equally be borne in mind through that
this Court must be conscious of the risk inherent in its being considered as a mere
subservient instrument of government policy however admittedly salutary or
desirable. There is still the need to demonstrate that the conclusion reached by it in
cases appropriate for its determination has support in the law that must be applied.
To my mind that was the norm followed, the conclusion reached being that the three
petitions be dismissed. I am in agreement. It is with regret however that based on my
reading of past decisions, both Philippine and American, and more specifically my
concurring opinion in Aquino v. Ponce Enrile, I must dissent from the proposition set
forth in the able and scholarly opinion of Justice Martin that there is concentration of
power in the President during a crisis government. Consequently, I cannot see my
way clear to accepting the view that the authority to propose amendments is not
open to question. At the very least, serious doubts could be entertained on the
matter.

1. With due respect then, I have to dissociate myself from my brethren who would
rule that governmental powers in a crisis government, following Rossiter, "are more
or less concentrated in the President." Adherence to my concurring and dissenting
opinion in Aquino v. Ponce Enrile leaves me no choice.

It must be stated at the outset that with the sufficiency of doctrines supplied by our
past decisions to point the way to what I did consider the appropriate response to the
basic issue raised in the Aquino and the other habeas corpus petitions resolved
jointly, it was only in the latter portion of my opinion that reference was made to
United States Supreme Court pronouncements on martial law, at the most
persuasive in character and rather few in number "due no doubt to the, absence in
the American Constitution of any provision concerning it." 7 It was understandable
then that it was only after the landmark Ex parte Milligan case, that commentators
like Cooley in 1868 and Watson in 1910 paid attention, minimal by that, to the
subject." It was next set forth that in the works on American constitutional law
published in this century specially after the leading cases of cases Sterling v.
Constant in and Duncan v. Kahanamoku, "there was a fuller treatment of the
question of martial law While it is the formulation of Willoughby that for me is most
acceptable, my opinion did take note that another commentator, Burdick, came out
earlier with a similar appraisal. 10 Thus: "So called martial law, except in occupied
territory of an enemy is merely the calling in of the aid of military forces by the
executive, who is charged with the enforcement of the law, with or without special
authorization by the legislature. Such declaration of martial law does not suspend the
civil law, though it may interfere with the exercise of one's ordinary rights. The right to
call out the military forces to maintain order and enforce the law is simply part of the
Police power, It is only justified when it reasonably appears necessary, and only
justifies such acts as reasonably appear necessarily 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 habit for acts done beyond the scope of reasonable necessity.
When honestly and reasonably coping with a situation of insurrection or riot a
member of the military forces cannot be made liable for his acts, and persons
reasonably arrested under such circumstances will not, during the insurrection or riot,
be free by writ of habeas corpus." 11 When the opinion cited Willoughby's concept
of martial law, stress was laid on his being "Partial to the claims of liberty."12 This is
evident in the explicit statement from his work quoted by me: "There is, then, strictly
speaking, no such thing in American law as a declaration of martial law whereby
military law is substituted for civil law. So-called declarations of martial law are,
indeed, often made but their legal effect goes no further than to warn citizens that the
military powers have been called upon by the executive to assist him in the
maintenance of law and order, and that, while the emergency lasts, they must, upon
pain of arrest and punishment not commit any acts which will in any way render more
difficult the restoration of order and the enforcement of law. Some of the authorities
stating substantially this doctrine are quoted in the footnote below Nor did I stop
there. The words of Willis were likewise cited: "Martial law proper, that is, military law
in case of insurrection, riots, and invasions, is not a substitute for the civil law, but is
rather an aid to the execution of civil law. Declarations of martial law go no further
than to warn citizens that the executive has called upon the military power to assist
him in the maintenance of law and order. While martial law is in force, no new
powers are given to the executive and no civil rights of the individual, other than the

writ of habeas corpus, are suspended. The relations between the citizen and his
stature unchanged." 14

The conclusion reached by me as to the state of American federal law on the


question of martial law was expressed thus: 4'1 It is readily evident that even when
Milligan supplied the only authoritative doctrine, Burdick and Willoughby did not
ignore the primacy of civil liberties. Willis wrote after Sterling. It would indeed be
surprising if his opinion were otherwise. After Duncan, such an approach becomes
even more strongly fortified. Schwartz, whose treatise is the latest to be published,
has this summary of what he considers the present state of American law: 'The
Milligan and Duncan cases show plainly that martial law is the public law of
necessity. Necessities alone calls it forth, necessity justifies its exercise; and
necessities measures the extended degree to which it may be It is, the high Court
has affirmed, an unbending rule of law that the exercise of military power, where the
rights of the citizen are concerned, may, never be pushed beyond what the exigency
requires. If martial law rule survive the necessities on which alone it rests, for even a
single minute it becomes a mere exercise of lawless violence.' Further: Sterling v.
Constantin is of basic importance. Before it, a number of decisions, including one the
highest Court, went or on the theory that the executive had a free hand in taking
martial law measures. Under them, it has been widely supposed that in 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
Actuation has made it necessary the executive's ipse dixit is not of itself conclusive of
the necessity.'" 15

There was likewise an effort on my part to show what for me is the legal effect of
martial law being expressly provided for in the Constitution rather than being solely
predicated on the common law power based on the urgent need for it because of
compelling circumstances incident to the state of actual clash of arms: "It is not to be
lost sight of that the basis for the declaration of martial law in the Philippines is not
mere necessity but an explicit constitutional provision. On the other hand, Milligan,
which furnished the foundation for Sterling and Duncan had its roots in the English
common law. There is pertinence therefore in ascertaining its significance under that
system. According to the noted English author, Dicey: 'Martial law,' in the proper
sense of that term, , in which - it means the suspension of ordinary law and the
temporary government of a country or parts of it be military tribunals, is unknown to
the law of England. We have nothing equivalent to what is called in France the
"Declaration of the State of Siege," under which the authority ordinarily vested in the
civil power for the maintenance of order and police passes entirely to the army
(autorite militaire). This is an unmistakable proof of the permanent supremacy of the
law under our constitution. There was this qualification: 'Martial law is sometimes
employed as a name for the common law right of the Crown and its servants to repel
force by force in the case of invasion, insurrection, riot, or generally of any violent
resistance to the law. This right, or power, is essential to the very existence of orderly
government, and is most assuredly recognized in the most ample manner by the law
of England. It is a power which has in itself no special connection with the existence

of an armed force. The Crown has the right to put down breaches of the peace.
Every subject, whether a civilian or a soldier, whether what is called a servant of the
government,' such for example as a policeman, or a person in no way connected with
the administration, not only has the right, but is, as a matter of legal duty, bound to
assist in putting down breaches of the peace. No doubt policemen or soldiers are the
persons who, as being specially employed in the maintenance of order, are most
generally called upon to suppress a riot, but it is clear that all loyal subjects are
bound to take their part in the suppression of riots." 16

Commitment to such an approach results in my inability to subscribe to the belief that


martial law in terms of what is provided both in the 1935 and the present
Constitution, affords sufficient justification for the concentration of powers in the
Executive during periods of crisis. The better view, considering the juristic theory on
which our fundamental law rests is that expressed by Justice Black in Duncan v.
Kahanamoku: "Legislatures and courts are not merely cherished American
institutions; they are indispensable to our government. 17 If there has been no
observance of such a cardinal concept at the present, it is due to the fact that before
the former Congress could meet in regular session anew, the present Constitution
was adopted, abolishing it and providing for an interim National Assembly, which has
not been convened. 18 So I did view the matter.

2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was
made to the first chapter on his work on Constitutional Dictatorship where he spoke
of martial rule as "a device designed for use in the crisis of invasion or rebellion. It
may be most precisely defined as an extension of military government to the civilian
population, the substitution of the will of a military commander for the will of the
people's elected government." 19 Since, for me at least, the Rossiter characterization
of martial law has in it more of the common law connotation, less than duly mindful of
the jural effects of its inclusion in the Constitution itself as a legitimate device for
coping with emergency conditions in times of grave danger, but always subject to
attendant limitations in accordance with the fundamental postulate of a charter's
supremacy, I felt justified in concluding: "Happily for the Philippines, the declaration
of martial law lends itself to the interpretation that the Burdick, Willoughby, Willis,
Schwartz formulations paying due regard to the primacy of liberty possess relevance.
lt 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 there under could be passed upon by the Supreme court. For
me that is quite reassuring, persuaded as I am likewise that the week- of Rossiter is
opposed to the fundamental concept of our polity, which puts a premium on
freedom." 20

3. Candor and accuracy compel the admission that such a conclusion his to be
qualified. For in the opinion of the Court in the aforecited Aquino v. Commission on
Elections, penned by Justice Makasiar, the proposition was expressly affirmed "that

as Commander-in-Chief and enforcer or administrator of martial law, the incumbent


President of the Philippines can reclamations, orders and decrees during the period
Martial Law essential to the security and preservation of the Republic, to the defense
of the political and social liberties of the people and to the institution of reforms to
prevent the resurgence of rebellion or insurrection or secession or the threat thereof
as well as to meet the impact of a worldwide recession, inflation or economic crisis
which presently threatens all nations including highly developed countries." 21 To
that extent, Rossiter's view mainly relied upon, now possesses Juristic significant in
this jurisdiction. What, for me at least, gives caused for concern is that with the
opinion of the Court this intrusion of what I would consider an alien element in the
limited concept of martial law as set forth in the Constitution would be allowed further
incursion into the corpus of the law, with the invocation of the view expressed in the
last chapter of his work approving tile "concentration of governmental power in a
democracy [as] a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers." 22 It is to the credit of the late Professor Rossiter as an
objective scholar that in the very same last chapter, just three pages later, he
touched explicitly on the undesirable aspect of a constitutional dictatorship. Thus:
"Constitutional Dictatorship is a dangerous thing. A declaration of martial law or the
passage of an enabling act is a step which must always be feared and sometimes
bitterly resisted, for it is at once an admission of the incapacity of democratic
institutions to defend the order within which they function and a too conscious
employment of powers and methods long ago outlawed as destructive of
constitutional government. Executive legislation, state control of popular liberties,
military courts, and arbitrary executive action were governmental features attacked
by the men who fought for freedom not because they were inefficient or
unsuccessful, but because they were dangerous and oppressive. The reinstitution of
any of these features is a perilous matter, a step to be taken only when the dangers
to a free state will be greater if the dictatorial institution is not adopted." 23

4. It is by virtue of such considerations that I find myself unable to share the view of
those of my brethren who would accord recognition to the Rossiter concept of
concentration of governmental power in the Executive during periods of crisis. This is
not to lose sight of the undeniable fact that in this country through the zeal, vigor, and
energy lavished on projects conducive to the general welfare, considerable progress
has been achieved under martial rule. A fair summary may be found in a recent
address of the First Lady before the delegates to the 1976 international Monetary
Fund-World Bank Joint Annual Meeting: "The wonder is that so much has been done
in so brief a time. Since September 1972, when President Marcos established the
crisis government, peace and order have been restored in a country once avoided as
one of the most unsafe in the world. We have liberated millions of Filipino farmers
from the bondage of tenancy, in the most vigorous and extensive implementation of
agrarian reform." 24 Further, she said: "A dynamic economy has replaced a stagnant
order, and its rewards are distributed among the many, not hoarded by a few. Our
foreign policy, once confined by fear and suspicion to a narrow alley of self-imposed
isolation, now travels the broad expressways of friendship and constructive
interaction with the whole world, these in a new spirit of confidence and self-reliance.
And finally, forced to work out our own salvation, the Filipino has re-discovered the
well-springs of his strength and resilience As Filipinos, we have found our true
Identity. And having broken our crisis of Identity, we are no longer apologetic and
afraid. "25 The very Idea of a crisis, however, signifies a transitory, certainly not a
permanent, state of things. President Marcos accordingly has not been hesitant in

giving utterance to his conviction that full implementation of the modified


parliamentary system under the present Constitution should not be further delayed.
The full restoration of civilian rule can thus be expected. That is more in accord with
the imperatives of a constitutional order. It should not go unnoticed either that the
President has referred to the present regime as one of "constitutional
authoritarianism." That has a less objectionable ring, authority being more Identified
with the Idea of law, as based on right, the very antithesis of naked force, which to
the popular mind is associated with dictatorship, even if referred to as
"constitutional."

For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of
the Court, while no doubt a partisan of d strong Presidency, was not averse to
constitutional restraints even during periods of crisis. So I would interpret this excerpt
from the fourth edition of his classic treatise on the Presidency: "A regime of martial
law may be compendiously, if not altogether accurately, defined as one in which the
ordinary law, as administered by the ordinary courts, is superseded for the time being
by the will of a military commander. It follows that, when martial law is instituted
under national authority, it rests ultimately on the will of the President of the United
States in his capacity as Commander-in-Chief. It should be added at once,
nevertheless, that the subject is one in which the record of actual practice fails often
to support the niceties of theory. Thus, the employment of the military arm in the
enforcement of the civil law does not invariably, or even usually, involve martial law
in the strict sense, for, as was noted in the preceding section, soldiers are often
placed simply at the disposal and direction of the civil authorities as a kind of
supplementary police, or posse comitatus on the other hand be reason of the
discretion that the civil authorities themselves are apt to vest in the military in any
emergency requiring its assistance, the line between such an employment of the
military and a regime of martial law is frequently any but a hard and fast one. And
partly because of these ambiguities the conception itself of martial law today
bifurcates into two conceptions, one of which shades off into military government and
the other into the situation just described, in which the civil authority remains
theoretically in control although dependent on military aid. Finally, there is the
situation that obtained throughout the North during the Civil War, when the privilege
of the writ of habeas corpus was suspended as to certain classes of suspects,
although other characteristics of martial law were generally absent." 26

It is by virtue of the above considerations that, with due respect to the opinion of my
brethren, I cannot yield assent to the Rossiter view of concentration of governmental
powers in the Executive during martial law.

5 There is necessity then, for me at least, that the specific question raised in all three
petitions be squarely faced. It is to the credit of the opinion of the Court that it did so.
The basic issue posed concerns the boundaries of the power of the President during
this period of martial law, more precisely whether it covers proposing amendments to
the Constitution. There is the further qualification if the stand of respondents be taken
into account that the interim National Assembly has not been convened and is not

likely to be called into session in deference to the wishes of the people as expressed
in three previous referenda. It is the ruling of the majority that the answer be in the
affirmative, such authority being well within the area of presidential competence.
Again I find myself unable to join readily in that conviction. It does seem to me that
the metes and bounds of the executive domain, while still recognizable, do appear
blurred. This is not to assert that there is absolutely no basis for such a conclusion,
sustained as it is by a liberal construction of the principle that underlies Aquino v.
Commission on Elections as to the validity of the exercise of the legislative
prerogative by the President as long as the interim National Assembly is not For me,
the stage of certitude has not been reached. I cannot simply ignore the vigorous plea
of petitioners that there is a constitutional deficiency consisting in the absence of any
constituent power on the part of the President, the express provision of the
Constitution conferring it on the by team National Assembly. 27 The learned
advocacy reflected in the pleadings as well as the oral discourse of Solicitor General
Estelito P. Mendoza 21 failed to erase the grave doubts in my mind that the Aquino
doctrine as to the possession of legislative competence by the President during this
period of transition with the interim lawmaking body not called into session be thus
expanded. The majority of my brethren took that step. I am not prepared to go that
far. I will explain why.

The way for me, is beset with obstacles. In the first place, such an approach would
lose sight of the distinction between matters legislative and constituent. That is
implicit in the treatise on the 1935 Constitution by Justices Malcolm and Laurel In
their casebook published the same year, one of the four decisions on the subject of
constitutional amendments is Ellingham v. Dye 31 which categorically distinguished
between constituent and legislative powers. Dean Sinco, a well-known authority on
the subject, was quite explicit. Thus: "If there had been no express provision in the
Constitution granting Congress the power to propose amendments, it would be
outside its authority to assume that power. Congress may not claim it under the
general grant of legislative power for such grant does not carry with it the right 'to
erect the state, institute the form of its government,' which is considered a function
inherent in the people. Congressional law- making authority is limited to the power of
approving the laws 'of civil conduct relating to the details and particulars of the
government instituted,' the government established by the people."12 If that
distinction be preserved, then for me the aforecited Aquino decision does not reach
the heart of the matter. Nor is this all. In the main opinion of Justice Makasiar as well
as that of the then Justice, now Chief Justice, Castro, support for the ruling that the
President cannot be deemed as devoid of legislative power during this transition
stage is supplied by implications from explicit constitutional provisions. 13 That is not
the case with the power to propose amendments. It is solely the interim National
Assembly that is mentioned. That is the barrier that for me is well-nigh
insurmountable. If I limit myself to entertaining doubts rather than registering a
dissent on this point, it is solely because of the consideration, possessed of weight
and significance, that there may be indeed in this far-from-quiescent and static period
a need for al. amendments. I do not feel confident therefore that a negative vote on
my part would be warranted. What would justify the step taken by the President,
even if no complete acceptance be accorded to the view that he was a mere conduit
of the barangays on this matter, is that as noted in both qualified concurrences by
Justices Teehankee and Munoz Palma in Aquino, as far as the legislative and
appropriately powers are concerned, is the necessity that unless such authority be
recognized, there may be paralyzation of governmental activities, While not squarely

applicable, such an approach has, to my mind, a persuasive quality as far as the


power to propose amendments is concerned.

Thus I would confine myself to the expression of serious doubts on the question
rather than a dissent.

6. The constitutional issue posed as thus viewed leaves me free to concur in the
result that the petitions be dismissed. That is to accord respect to the principle that
judicial review goes no further than to checking clear infractions of the fundamental
law, except in the field of human rights where a much greater vigilance is required,
That is to make of the Constitution a pathway to rather than a barrier against a
desirable objective. -As shown by my concurring and dissenting opinion in Tolentino
Commission on Elections '34 a pre-martial law decision, the fundamental postulate
that sovereignty resides in the people exerts a compelling force requiring the
judiciary to refrain as much as possible from denying the people the opportunity to
make known their wishes on matters of the utmost import for the life of the nation,
Constitutional amendments fall in that category. I am fortified in that conviction by the
teaching of persuasive American decisions There is reinforcement to such a
conclusion from retired Chief Justice Concepcion's concurring and dissenting opinion
in Aytona v. Castillo,17 Which I consider applicable to the present situation. These
are his words: "It is well settled that the granting of writs of prohibition and
mandamus is ordinarily within the sound discretion of the courts, to be exercised on
equitable principles, and that said writs should be issued when the right to the relief
is clear * * by As he noted in his ponencia in the later case of Gonzales v.
Hechanova,19 an action for prohibition, while petitioner was sustained in his stand,
no injunction was issued. This was evident in the dispositive portion where judgment
was rendered "declaring that respondent Executive Secretary had and has no power
to authorize the importation in question; that he exceeded his jurisdiction in granting
said authority; that said importation is not sanctioned by law and is contrary to its
provisions; and that, for lack of the requisite majority, the injunction prayed for must
be and is, accordingly, denied." 40 With the illumination thus supplied, it does not
necessarily follow that even a dissent on my part would necessarily compel that I
vote for the relief prayed for. Certainly this is not to belittle in any way the action
taken by petitioners in filing these suits. That, for me, is commendable. It attests to
their belief in the rule of law. Even if their contention as to lack of presidential power
be accepted in their entirety, however, there is still discretion that may be exercised
on the matter, prohibition being an equitable remedy. There are, for me, potent
considerations that argue against acceding to the plea. With the prospect of the
interim National Assembly being convened being dim, if not non- existent, if only
because of the results in three previous referenda, there would be no constitutional
agency other than the Executive who could propose amendments, which, as noted.
may urgently press for adoption. Of even greater weight, to my mind, is the
pronouncement by the President that the plebiscite is intended not only to solve a
constitutional anomaly with the country devoid of a legislative body but also to
provide. the machinery be which the termination of martial law could be hastened.
That is a consummation devoutly to be wished. That does militate strongly against
the stand of petitioners. The obstruction they would pose may be fraught with
pernicious consequences. It may not be amiss to refer anew to what I deem the
cardinal character of the jural postulate explicitly affirmed in both the 1935 and the

present Constitutions that sovereignty resides in the people. So I made clear in


Tolentino v. Commission on Elections and thereafter in my dissent in Javellana v.
The Executive Secretary" and my concurrence in Aquino v. Commission on
Elections. 42 The destiny of the country lies in their keeping. The role of leadership is
not to be minimized. It is crucial it is of the essence. Nonetheless, it is their will, if
given expression in a manner sanctioned by law and with due care that there be no
mistake in its appraisal, that should be controlling. There is all the more reason then
to encourage their participation in the power process. That is to make the regime
truly democratic. Constitutional orthodoxy requires, however, that the fundamental
law be followed. So I would interpret Laski, 43 Corwin, 44 Lerner, 45, Bryn-Jones,
46 and McIver.47

7. There is reassurance in the thought that this Court has affirmed its commitment to
the principle that the amending process gives rise to a justiciable rather than a
political question. So, it has been since the leading case of Gonzales v. Commission
on Election S. 48 It has since then been followed in Tolentino v. Commission on
Elections 49 Planas v. Commission on Elections," and lastly, in Javellana v. The
Executive Secretary This Court did not heed the vigorous plea of the Solicitor
General to resurrect the political question doctrine announced in Mabanag v. Lopez
Vito. 52 This is not to deny that the federal rule in the United States as set forth in
the leading case of Coleman v. Miller , 53 a 1939 decision, and relatively recent
State court decisions, supply ammunition to such a contention., 51 That may be the
case in the United States, but certainly not in this jurisdiction. Philippine constitutional
tradition is to the contrary. It can trace its origin to these words in the valedictory
address before the 1934-35 Constitutional Convention by the illustrious Claro M.
Recto: "It is one of the paradoxes a democracy that the people of times place more
confidence in instrumentalities of the State other than those directly chosen by them
for the exercise of their sovereignty It can be said with truth, therefore, that there has
invariably been a judicial predisposition to activism rather than self-restraint. The
thinking all these years has been that it goes to the heart of constitutionalism. It may
be said that this Court has shunned the role of a mere interpreter; it did exercise at
times creative power. It has to that extent participated in the molding of policy, It has
always recognized that in the large and undefined field of constitutional law,
adjudication partakes of the quality of statecraft. The assumption has been that just
because it cannot by itself guarantee the formation, much less the perpetuation of
democratic values or, realistically, it cannot prevail against the pressure of political
forces if they are bent in other directions. it does not follow that it should not
contribute its thinking to the extent that it can. It has been asked, it will continue to be
asked, to decide momentous questions at each critical stage of this nation's life.

There must be, however, this caveat. Judicial activism gives rise to difficulties in an
era of transformation and change. A society in flux calls for dynamism in "he law,
which must be responsive to the social forces at work. It cannot remain static. It must
be sensitive to life. This Court then must avoid the rigidity of legal Ideas. It must
resist the temptation of allowing in the wasteland of meaningless abstractions. It
must face stubborn reality. It has to have a feel for the complexities of the times. This
is not to discount the risk that it may be swept too far and too fast in the surge of
novel concepts. The past too is entitled to a hearing; it cannot just be summarily
ignored. History still has its uses. It is not for this Court to renounce the virtue of

systematic jural consistency. It cannot simply yield to the sovereign sway of the
accomplished fact. It must be deaf to the dissonant dialectic of what appears to be a
splintered society. It should strive to be a factor for unity under a rule of law. There
must be, on its part, awareness of the truth that a new juridical age born before its
appointed time may be the cause of unprecedented travail that may not end at birth.
It is by virtue of such considerations that I did strive for a confluence of principle and
practicality. I must confess that I did approach the matter with some misgivings and
certainly without any illusion of omniscience. I am comforted by the thought that
immortality does not inhere in judicial opinions. 8. 1 am thus led by my studies on the
subject of constitutional law and, much more so, by previous judicial opinions to
concur in the dismissal of the petitions. If I gave expression to byes not currently
fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I am the first to
recognize the worth of' the social and economic reforms so needed by the troubled
present that have been introduced and implemented. There is no thought then of
minimizing, much less of refusing to concede, the considerable progress that has
been made and the benefits that have been achieved under this Administration.
Again, to reiterate one of my cherished convictions, I certainly approve of the
adherence to the fundamental principle of popular sovereignty which, to be
meaningful however, requires both freedom in its manifestation and accuracy in
ascertaining what it wills. Then, too, it is fitting and proper that a distinction was made
between two aspects of the coming poll, the referendum and the plebiscite. It is only
the latter that is impressed with authoritative force. So the Constitution requires.
Lastly, there should be, as I did mention in my concurrence in Aquino v. Commission
on Elections,56 full respect for free speech and press, free assembly and free
association. There should be no thought of branding the opposition as the enemy
and the expression of its views as anathema, Dissent, it is fortunate to note, has
been encouraged. It has not been Identified with disloyalty. That ought to be the
case, and not solely due to presidential decrees. Constructive criticism is to be
welcomed not so much because of the right to be heard but because there may be
something worth hearing. That is to ensure a true ferment of Ideas, an interplay of
knowledgeable minds. There are though well- defined limits, One may not advocate
disorder in the name of protest, much less preach rebellion under the cloak of
dissent.. What I mean to stress is that except on a showing of clear and present
danger, there must be respect for the traditional liberties that make a society truly
free.

TEEHANKEE, J., dissenting:

1. On the merits: I dissent from the majority's dismissal of the petitions for lack of
merit and vote to grant the petitions for the following reasons and considerations: 1.
It is undisputed that neither the 1935 Constitution nor the 1973 Constitution grants to
the incumbent President the constituent power to propose and approve amendments
to the Constitution to be submitted to the people for ratification in a plebiscite. The
1935 Constitution expressly vests the constituent power in Congress, be a threefourths vote of all its members, to propose amendments or call a constitutional
convention for the purpose The 1973 Constitution expressly vests the constituent
power in the regular National Assembly to propose amendments (by a three-fourths
vote of all its members) or "call a constitutional convention" (by a two-thirds vote of

all its members) or "submit the question of calling such convention to the electorate
in an election" (by a majority vote of all its members ) .2

The transitory provisions of the 1973 Constitution expressing vest the constituent
power during the period of transition in the interim National Assembly "upon special
call be the Prime Minister (the incumbent President 3)... by a majority ore of all its
members (to) propose amendments."

Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of
the exercise of such powers, and the constituent power has not been granted to but
has been withheld from the President or Prime Minister, it follows that the President's
questioned decrease proposing and submitting constitutional amendments directly to
the people (without the intervention of the interim National Assembly in whom the
power is expressly vested) are devoid of constitutional and legal basis.

2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case
at bar In therein declaring null and void the acts of the 1971 Constitutional
Convention and of the Comelec in calling a plebiscite with the general elections
scheduled for November 8, 1971 for the purpose of submitting for the people's
ratification an advance amendment reducing the voting age from 21 years to 18
years, and issuing writs of prohibition and injunction against the holding of the
plebiscite, this Court speaking through Mr. Justice Barredo ruled that --The
Constitutional provisions on amendments "dealing with the procedure or manner of
amending the fundamental law are binding upon the Convention and the other
departments of the government, (land) are no less binding upon the people

As long as an amendment is formulated and submitted under the aegis of the


present Charter, any proposal for such amendment which is not in conformity with
the letter, spirit and intent of the Charter for effecting amendments, cannot receive
the sanction of this Court ; 8

The real issue here cannot be whether or not the amending process delineated by
the present Constitution may be disregarded in favor of allowing the sovereign
people to express their decision on the proposed amendments, if only because it is
evident that the very Idea of departing from the fundamental law is anachronistic in
the realm of constitutionalism and repugnant to the essence of the rule of law,"; 9
and

-Accordingly barred the plebiscite as improper and premature, since "the provisional
nature of the proposed amendments and the manner of its submission to the people
for ratification or rejection" did not "conform with the mandate of the people
themselves in such regard, as expressed in the Constitution itself', 10 i.e. the
mandatory requirements of the amending process as set forth in the Article on
Amendments.

3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis, it is
clear that where the proposed amendments are violative of the Constitutional
mandate on the amending process not merely for being a "partial amendment" of a
"temporary or provisional character" (as in Tolentino) but more so for not being
proposed and approved by the department vested by the Constitution with the
constituent power to do so, and hence transgressing the substantive provision that it
is only the interim National Assembly, upon special call of the interim Prime Minister,
bu a majority vote of all its members that may propose the amendments, the Court
must declare the amendments proposals null and void.

4. This is so because the Constitution is a "superior paramount law, unchangeable by


ordinary means" 11 but only by the particular mode and manner prescribed therein
by the people. As stressed by Cooley, "by the Constitution which they establish, (the
people) not only tie up the hands of their official agencies but their own hands as
well; and neither the officers of the State, nor the whole people as an aggregate
body, are at liberty to take action in opposition to this fundamental law." 12

The vesting of the constituent power to propose amendments in the legislative body
(the regular National Assembly) or the interim National Assembly during the
transition period) or in a constitutional convention called for the purpose is in
accordance with universal practice. "From the very necessity of the case" Cooley
points out "amendments to an existing constitution, or entire revisions of it, must be
prepared and matured by some body of representatives chosen for the purpose. It is
obviously impossible for the whole people to meet, prepare, and discuss the
proposed alterations, and there seems to be no feasible mode by which an
expression of their will can be obtained, except by asking it upon the single point of
assent or disapproval." This body of representatives vested with the constituent power "submits the result of their deliberations" and "puts in proper form the
questions of amendment upon which the people are to pass"-for ratification or
rejection. 13

5. The Court in Tolentino thus rejected the argument "that the end sought to be
achieved is to be desired" and in denying reconsideration in paraphrase of the late
Claro M. Recto declared that "let those who would put aside, invoking grounds at
best controversial, any mandate of the fundamental purportedly in order to attain
some laudable objective bear in mind that someday somehow others with
purportedly more laudable objectives may take advantage of the precedent and

continue the destruction of the Constitution, making those who laid down the
precedent of justifying deviations from the requirements of the Constitution the
victims of their own folly."

This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his
dissenting opinion in the Ratification cases 14 that "we will be opening the gates for
a similar disregard to the Constitution in the future. What I mean is that if this Court
now declares that a new Constitution is now in force because the members of the
citizens assemblies had approved said new Constitution, although that approval was
not in accordance with the procedure and the requirements prescribed in the 1935
Constitution, it can happen again in some future time that some amendments to the
Constitution may be adopted, even in a manner contrary to the existing Constitution
and the law, and then said proposed amendments is submitted to the people in any
manner and what will matter is that a basis is claimed that there was approval by the
people. There will not be stability in our constitutional system, and necessarily no
stability in our government."

6. It is not legally tenable for the majority, without overruling the controlling precedent
of Tolentino (and without mustering the required majority vote to so overrule) to
accept the proposed; amendments as valid notwithstanding their being "not in
conformity with the letter, spirit and intent of the provision of the Charter for effecting
amendments" on the reasoning that "If the President has been legitimately
discharging the legislative functions of the interim National Assembly, there is no
reason why he cannot validly discharge the functions."15

In the earlier leading case of Gonzales vs. Comelec 16, this Court speaking through
now retired Chief Justice Roberto Concepcion, pointer out that "Indeed, the power to
Congress" 17 or to the National Assembly.18 Where it not for the express grant in
the Transitory Provisions of the constituent power to the interim National Assembly,
the interim National Assembly could not claim the power under the general grant of
legislative power during the transition period.

The majority's ruling in the Referendum cases 19 that the Transitory Provision in
section 3(2) recognized the existence of the authority to legislate in favor of the
incumbent President during the period of martial law manifestly cannot be stretched
to encompass the constituent power as expressly vested in the interim National
Assembly in derogation of the allotment of powers defined in the Constitution.

Paraphrasing Cooley on the non-delegation of legislative power as one of the settled


maxims of constitutional law, 20 the contituent power has been lodged by the
sovereign power of the people with the interim National Assembly during the

transition period and there it must remain as the sole constitutional agency until the
Constitution itself is changed.

As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of Angara
vs. Electoral Commissioner 21, "(T)he Constitution sets forth in no uncertain
language and 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
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".

7. Neither is the justification of "constitutional impasses" tenable. The sentiment of


the people against the convening of the interim National Assembly and to have no
elections for "at least seven (7) years" Concededly could not ament the Constitution
insofar as the interim National Assembly is concerned (since it admittendly came into
existence "immediately" upon the proclamation of ratification of the 1973
Constitution), much less remove the constituent power from said interim National
Assembly.

As stressed in the writer's separate opinion in the Referendum cases 22, "(W)hile it
has been advanced that the decision to defer the initial convocation of the interim
National Assembly was supported by the results of the referendum in January, 1973
when the people voted against the convening of the interim National Assembly for at
least seven years, such sentiment cannot be given any legal force and effect in the
light of the State's admission at the hearing that such referendums are merely
consultative and cannot amend the Constitution or Provisions which call for the
'immediate existence' and 'initial convening of the interim National Assembly to 'give
priority to measures for the orderly transition from the presidential to the
parliamentary system' and the other urgent measures enumerated in section 5
thereof".

While the people reportedly expressed their mandate against the convening of the
interim National Assembly to dischange its legislative tasks during the period of
transition under martial law, they certainly had no opportunity and did not express
themselves against convening the interim National Assembly to discharge the
constituent power to propose amendments likewise vested in it by the people's
mandate in the Constitution.

In point of fact, when the holding of the October 16, 1976 referendum was first
announced, the newspapers reported that among the seven questions proposed by

the sanggunian and barangay national executive committies for the referendum was
the convening of the interim National Assembly. 23

It was further reported that the proposals which were termed tentative "will be
discussed and studied by (the President), the members of the cabinet, and the
security council" and that the barangays felt, notwithstanding the previous referenda
on the convening of the interim National Assembly that "it is time to again ask the
people's opinion of this matter " 24

8. If proposals for constitutional amendments are now deemed necessary to be


discussed and adopted for submittal to the people, strict adherence with the
mandatory requirements of the amending process as provided in the Constitution
must be complied with. This means, under the teaching of Tolentino that the
proposed amendments must validly come from the constitutional agency vested with
the constituent power to do so, namely, the interim National Assembly, and not from
the executive power as vested in the Prime Minister (the incumbent President) with
the assistance of the Cabinet 25 from whom such power has been withheld.

It will not do to contend that these proposals represent the voice of the people for as
was aptly stated by Cooley "Me voice of the people, acting in their sovereign
capacity, can be of legal force only when expressed at the times and under the
conditions which they themselves have prescribed and pointed out by the
Constitution. ... ."26

The same argument was put forward and rejected by this Court in Tolentino which
rejected the contention that the "Convention being a legislative body of the highest
order (and directly elected by the people to speak their voice) is sovereign, in as
such, its acts impugned by petitioner are beyond the control of Congress and the
Courts" and ruled that the constitutional article on the amending process" is nothing
more than a part of the Constitution thus ordained by the people. Hence, in
continuing said section, We must read it as if the people said, "The Constitution may
be amended, but it is our will that the amendment must be proposed and submitted
to Us for ratification only in the manner herein provided'". 27

This Court therein stressed that "This must be so, because it is plain to Us that the
framers of the Constitution took care that the process of amending the same should
not be undertaken with the same ease and facility in changing an ordinary legislation.
Constitution making is the most valued power, second to none, of the people in a
constitutional democracy such as the one our founding fathers have chosen for this
nation, and which we of the succeeding generations generally cherish. And because
the Constitution affects the lives, fortunes, future and every other conceivable aspect
of the lives of all the people within the country and those subject to its sovereignity,

ever constitution worthy of the people for which it is intended must not be prepared in
haste without adequate deliberation and study. It is obvious that correspondingly, any
amendment of the Constitution is of no less importance than the whole Constitution
itself, and perforce must be conceived and prepared with as much care and
deliberation;" and that "written constitutions are supposed to be designed so as to
last for some time, if not for ages, or for, at least, as long as they can be adopted to
the needs and exigencies of the people, hence, they must be insulated against
precipitate and hasty actions motivated by more or less passing political moods or
fancies. Thus, as a rule, the original constitutions carry with them limitations and
conditions, more or less stringent, made so by the people themselves, in regard to
the process of their amendment." 28

9. The convening of the interim National Assembly to exercise the constituent power
to proposed amendments is the only way to fulfill the express mandate of the
Constitution.

As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the
setting as in of a Comelec resolution banning the use of political taped jingles by
candidates for Constitutional Convention delegates int he special 1970 elections, "the
concept of the Constitution as the fundamental law, setting forth the criterion for the
validity of any public act whether proceeding from the highest official or the lowest
functionary, is a postulate of our system of government. That is to amnifst fealty to
the rule of law, with priority accorded to that which occupies the topmost rung in the
legal heirarchy. The three departments of government in the discharge of the
functions with which it is entrusted have no choice but to yield obedience to its
commands. Whatever limits it imposes must be observed. Congress in the
enactment of statutes must ever be on guart lest the restrictions on its authority,
whether substantive or formal, be transcended. The Presidency in the execution of
the laws cannot ignore of disregard what it ordains. In its task of applying the law to
the facts as found in deciding cases, the judiciary is called upon the maintain
inviolate what is decreed by the fundamental law."

This is but to give meaning to the plan and clear mandate of section 15 of the
Transitory Provisions (which allows of no other interpretation) that during the stage of
transition the interim National Assembly alone exercises the constituent power to
propose amendments, upon special call therefor. This is reinforced by the fact that
the cited section does not grant to the regular National Assembly of calling a
constitutional convention, thus expressing the will of the Convention (and presumably
of the people upon ratification) that if ever the need to propose amendments arose
during the limited period of transition, the interim National Assembly alone would
discharge the task and no constitutional convention could be call for the purpose.

As to the alleged costs involved in convening the interim National Assembly to


propose amendments, among them its own abolition, (P24 million annually in

salaries alone for its 400 members at P600,000.00 per annum per member,
assuming that its deliberations could last for one year), suffice it to recall this Court's
pronouncement in Tolentino (in reflecting a similar argument on the costs of holding
a plebiscite separately from the general elections for elective officials) that "it is a
matter of public knowledge that bigger amounts have been spent or thrown to waste
for many lesser objectives. ... Surely, the amount of seventeen million pesos or even
more is not too much a price to pay for fealty and loyalty to the Constitution ... " 30
and that "while the financial costs of a separate plebiscite may be high, it can never
be as much as the dangers involved in disregarding clear mandate of the
Constitution, no matter how laudable the objective" and "no consideration of financial
costs shall deter Us from adherence to the requirements of the Constitution".11

10. The imposition of martial law (and "the problems of rebellion, subversion,
secession, recession, inflation and economic crisis a crisis greater than war") 32
cited by the majority opinion as justifying the concentration of powers in the
President, and the recognition now of his exercising the constituent power to propose
amendments to the Fundamental Law "as agent for and in behalf of the people" 33
has no constitutional basis.

In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras
reaffirmed for the Court the principle that emergency in itself cannot and should not
create power. In our democracy the hope and survival of the nation lie in the wisdom
and unselfish patriotism of all officials and in their faithful 'Adherence to the
Constitution".

The martial law clause of the 1973 Constitution found in Article IX, section 12 , as
stressed by the writer in his separate opinion in the Referendum Cases,14 "is a
verbatim reproduction of Article VII, section 10 (2) of the 1935 Constitution and
provides for the imposition of martial law only 'in case of invasion, resurrection or
rebellion, or imminent danger thereof, when the public safety requires it and hence
the use of the legislative power or more accurately 'military power' under martial rule
is limited to such necessary measures as will safeguard the Republic and suppress
the rebellion (or invasion)". 35

11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the
majority in the Referendum Cases to be the recognition or warrant for the exercise of
legislative power by the President during the period of martial law is but a transitory
provision. Together with the martial law clause, they constitute but two provisions
which are not to be considered in isolation from the Constitution but as mere integral
parts thereof which must be harmonized consistently with the entire Constitution.

As Cooley restated the rule: "effect is to be given, if possible, to the whole


instrument, and to every section and clause. If different portions seem to conflict, the
courts must harmonize them, if practicable, and must lean in favor of a construction
which will render every word operative, rather than one which may make some words
Idle and nugatory.

This rule is applicable with special force to written constitutions, in which the people
will be presumed to have expressed themselves in careful and measured terms,
corresponding with the immense importance of the powers delegated, leaving as little
as possible to implication. It is scarcelly conceivable that a case can arise where a
court would bye justified in declaring any portion of a written constitution nugatory
because of ambiguity. One part may qualify another so as to restrict its operation, or
apply it otherwise than the natural construction would require if it stood by itself; but
one part is not to be allowed to defeat another, if by any reasonable construction the
two can be made to stand together. 36

The transcendental constituent power to propose and approve amendments to the


Constitution as well as set up the machinery and prescribe the procedure for the
ratification of his proposals has been withheld from the President (Prime Minister) as
sole repository of the Executive Power, presumably in view of the immense powers
already vested in him by the Constitution but just as importantly, because by the very
nature of the constituent power, such amendments proposals have to be prepared,
deliberated and matured by a deliberative assembly of representatives such as the
interim National Assembly and hence may not be antithetically entrusted to one man.

Former Chief Justice Roberto Concepcion had observed before the elevation of the
l971 Constitutional Convention that the records of past plebiscites show that the
constitutional agency vested with the exercise of the constituent power (Congress or
the Constitutional Convention) really determined the amendments to the Constitution
since the proposals were invariably ratified by the people 37 thus: "although the
people have the reserved power to ratify or reject the action taken by the Convention,
such power is not, in view of the circumstances attending its exercise, as effective as
one might otherwise think: that, despite the requisite ratification by the people, the
actual contents of our fundamental law will really be determined by the Convention;
that, accordingly the people should exercise the greatest possible degree of
circumspection in the election of delegates thereto ... " 38

12. Martial law concededly does not abrogate the Constitution nor obliterate its
constitutional boundaries and allocation of powers among the Executive, Legislative
and Judicial Departments. 39

It has thus been aptly observed that "Martial law is an emergency regime, authorized
by and subject to the Constitution. Its basic premise is to preserve and to maintain
the Republic against the dangers that threaten it. Such premise imposes constraints
and limitations. For the martial law regime fulfills the constitutional purpose only if, by
reason of martial law measures, the Republic is preserved. If by reason of such
measures the Republic is so transformed that it is changed in its nature and
becomes a State other than republican, then martial law is a failure; worse, martial
law would have become the enemy of the Republic rather than its defender and
preserver." 40

II. On the question of the Court's jurisdiction to pass upon the constitutionality of the
questioned presidential decrees: let it be underscored that the Court has long set at
rest the question.

The trail was blazed for the Court since the benchmark case of Angara vs. Electoral
Commission when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall's
"climactic phrase" that "we must never forget that it is a Constitution we are
expounding" and declared the Court's "solemn and sacred" constitutional obligation
of judicial review and laid down the doctrine that the Philippine Constitution as "a
definition of the powers of government" placed upon the judiciary the great burden of
"determining the nature, scope and extent of such powers" and stressed that "when
the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments . . . but only asserts the solemn and sacred
obliteration entrusted to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and guarantees to them".

At the same time, the Court likewise adhered to the constitutional tenet that political
questions, i.e. questions which are intended by the Constitutional and relevant laws
to be conclusively determined by the "political", i.e. branches of government (namely,
the Executive and the Legislative) are outside the Court's jurisdiction. 41

Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by the required
constitutional majority), the Court has since consistently ruled that when proposing
and approving amendments to the Constitution, the members of Congress. acting as
a constituent assembly or the members of the Constitutional Convention elected
directly for the purpose by 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 outs is it government of lawsom not
of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact
that, the Constitution expressly confers upon the Supreme Court, the power to
declare a treaty unconstitutional, despite the eminently political character of treatymaking power". 44

As amplified by former Chief Justice Concepcion in Javellana vs Executive Secretary


45 (by a majority vote), "when the grant of power is qualified, conditional or subject to
limitations. the issue on whether or not the prescribed qualifications or conditions
have been met, or the limitations by expected, is justiciable or non-political, the crux
of the problem being one of legality or validity of the contested act, not its wisdom
Otherwise, said qualifications, conditions and limitations-particularly those prescribed
or imposed by the Constitution would be set at naught".

The fact that the proposed amendments are to be submitted to the people for
ratification by no means makes the question political and non- justiciable since as
stressed even in Javellana the issue of validity of the President's proclamation of
ratification of the Constitution presented a justiciable and non-political question

Stated otherwise, the question of whether the Legislative acting as a constituent


assembly or the Constitutional Convention called fol- the purpose, in proposing
amendments to the people for ratification followed the constitutional procedure and
on the amending process is perforce a justiciable question and does not raise a
political question of police or wisdom of the proposed amendments, which if
Submitted, are reserved for the people's decision.

The substantive question presented in the case at bar of whether the President may
legally exercise the constituent power vested in the interim National Assembly (which
has not been granted to his office) and propose constitutional amendments is
preeminently a justiciable issue.

Justice Laurel in Angara had duly enjoined that "in times of social disquietude or
political excitement, the great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial department is the
only constitutional organ which can be called upon to determine the proper allocation
of powers between the several departments and among the integral or constituent
units thereof".

To follow the easy way out by disclaiming jurisdiction over the issue as a political
question would be judicial abdication.

III. On the question of whether there is a sufficient and proper submittal of the
proposed amendments to the people: Prescinding from the writer's view of the nullity

of the questioned decree of lack of authority on the President's part to excercise the
constituent power, I hold that the doctrine of fair and proper submission first
enunciated by a simple majority of by Justices in Gonzales and subsequently
officially adopted by the required constitutional two-thirds majority of the Court in is
controlling in the case at bar.

1. There cannot be said to be fair and proper submission of the proposed


amendments. As ruled by this Court in Tolentino where "the proposed amendment in
question is expressly saddled with reservations which naturally impair, in great
measures, its very essence as a proposed constitutional amendment" and where
"the way the proposal is worded, read together with the reservations tacked to it by
the Convention thru Section 3 of the questioned resolution, it is too much of a
speculation to assume what exactly the amendment would really amount lo in the
end. All in all, as already pointed out in our discussion of movants' first ground, if this
kind of amendment is allowed, the Philippines will appear before the world to be in
the absurd position of being the only country with a constitution containing a
provision so ephemeral no one knows until when it will bet actually in force", there
can be no proper submission.

In Tolentino a solitary amendment reducing the voting age to 18 years was struck
down by this Court which ruled that "in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not only
sufficient time but ample basis for an intelligent appraisal of the nature of the
amendment per se as well as its relation to the other parts of the Constitution with
which it has to form a harmonious whole," and that there was no proper Submission
wherein the people are in the dark as to frame of reference they can base their
judgment on

2. The now Chief Justice and Mr. Justice Makasiar with two other members 46
graphically pointed out in their joint separate opinion that the solitary question "would
seem to be uncomplicated and innocuous. But it is one of life's verities that things
which appear to be simple may turn out not to be so simple after all". 47

They further expressed "essential agreement" with Mr. Justice Conrado V. Sanchez'
separate opinion in Gonzales "on the minimum requirements that must be met in
order that there can be a proper submission to the people of a proposed
constitutional amendment" which reads thus:

... we take the view that the words 'submitted to the people for their ratification', if
construed in the light of the nature of the Constitution a fundamental charter that is
legislation direct from the people, an expression of their sovereign will - is that it can
only be amended by the people expressing themselves according to the procedure

ordained by the Constitution. Therefore, amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere rubber stamps.
They are not to vote blindly. They must be afforded ample opportunity to mull over
the original provisions, compare them with the proposed amendments, and try to
reach a conclusion as the dictates of their conscience suggest, free from the incubus
of extraneous or possibly insidious influences. We believe the word submitted' can
only mean that the government, within its maximum capabilities, should strain every
effort to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as intended by
the framers of the Constitution. What the Constitution in effect directs is that the
government, in submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the people,
educate them with respect to their act of ratification or rejection. For, as we have
earlier stated, one thing is submission and another is ratification. There must be fair
submission, intelligent. consent or rejection. If with all these safeguards the people
still approve the amendment no matter how prejudicial it is to them, then so be it. For
the people decree their own fate. 48

Justice Sanchez therein ended the passage with an apt citation that " ... " The great
men who builded the structure of our state in this respect had the mental vision of a
good Constitution voiced by Judge Cooley, who has said 'A good Constitution should
be beyond the reach of temporary excitement and. popular caprice or passion. It is
needed for stability and steadiness; it must yield to the thought of the people; not to
the whim of the people, or the thought evolved in excitement or hot blood, but the
sober second thought, which alone, if the government is to be safe, can be allowed
efficiency. xxx xxx xxx Changes in government are to be feared unless the benefit is
certain. As Montaign says: All great mutations shake and disorder state. Good does
not necessarily succeed evil ;another evil may succeed and a worse'." 49

Justice Sanchez thus stated the rule that has been adopted by the Court in Tolentino
that there is no proper submission "if the people are not sufficiently affirmed of the
amendments to be voted upon, to conscientiously deliberate thereon, to express their
will in a genuine manner. ... .." 50

3. From the complex and complicated proposed amendments set forth in the
challenged decree and the plethora of confused and confusing clarifications reported
in the daily newspapers, it is manifest that there is no proper submission of the
proposed amendments. Nine (9) proposed constitutional amendments were officially
proposed and made known as per Presidential Decree No. 1033 dated, September
22, 1976 for submittal at the "referendum-plebiscite" called for this coming Saturday,
October 16, 1976 wherein the 15-year and under 18-year- olds are enjoined to vote
notwithstanding their lack of qualification under Article VI of the Constitution. Former
Senator Arturo Tolentino, an acknowledged parliamentarian of the highest order, was
reported by the newspapers last October 3 to have observed that "there is no

urgency in approving the proposed amendments to the Constitution and suggested


that the question regarding charter changes be modified instead of asking the people
to vote on hurriedly prepared amendments". He further pointed out that "apart from
lacking the parliamentary style in the body of the Constitution, they do not indicate
what particular provisions are being repealed or amended". 52

As of this writing, October 11, 1976, the paper today reported his seven-page
analysis questioning among others the proposed granting of dual legislative powers
to both the President and the Batasang Pambansa and remarking that "This dual
legislative authority can give rise to confusion and serious constitutional questions".
53

Aside from the inadequacy of the limited time given for the people's consideration of
the proposed amendments, there can be no proper submission because the
proposed amendments are not in proper form and violate the cardinal rule of
amendments of written constitutions that the specific provisions of the Constitution
being repealed or amended as well as how the specific provisions as amended
would read, should be clearly stated in careful and measured terms. There can be no
proper submission because the vagueness and ambiguity of the proposals do not
sufficiently inform the people of the amendments for, conscientious deliberation and
intelligent consent or rejection.

4. While the press and the Solicitor General at the hearing have stated that the
principal thrust of the proposals is to substitute the interim National Assembly with an
interim Batasang Pambansa, a serious study thereof in detail would lead to the
conclusion that the whole context of the 1973 Constitution proper would be affected
and grave amendments and modifications thereof -would apparently be made,
among others, as follows:

Under Amendment No. 1, the qualification age of members of the interim Batasang
Pambansa is reduced to 18 years;

Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld


from the interim Batasang Pambansa;

Under Amendment No 3, not withstanding the convening of the interim Batasang


Pambansa within 30 days from the election and selection of the members (for which
there is no fixed date) the incumbent President apparently becomes a regular
President and Prime Minister (not ad interim);

Under Amendment No. 4, the disqualifications imposed on members of the Cabinet


in the Constitution such as the prohibition against the holding of more than one office
in the government including government-owned or -controlled corporations would
appear to be eliminated, if not prescribed by the President;

Under Amendment No. 5, the President shall continue to exercise legislative powers
until martial law is lifted;

Under Amendment No. 6, there is a duality of legislative authority given the President
and the interim Batasang Pambansa as well as the regular National Assembly, as
pointed out by Senator Tolentino, with the President continuing to exercise legislative
powers in case of "grave emergency or a threat or imminence thereof" (without
definition of terms) or when said Assemblies "fail or are unable to act adequately on
any matter for any reason that in his judgment requires immediate action", thus
radically affecting provisions of the Constitution governing the said departments;

Under Amendment No. 7, the barangays and Sanggunians would apparently be


constitutionalized, although their functions, power and composition may be altered by
law. Referendums (which are not authorized in the present 1973 Constitution) would
also be constitutionalized, giving rise to the possibility fraught with grave
consequences, as acknowledged at the hearing, that amendments to the
Constitution may thereafter be effected by referendum, rather than by the rigid and
strict amending process provided presently in Article XVI of the Constitution;

Under Amendment No. 8, there is a general statement in general that the unspecified
provisions of the Constitution "not inconsistent with any of these amendments" shall
continue in full force and effect; and Under Amendment No. 9. the incumbent
President is authorized to proclaim the ratification of the amendments by the majority
of votes cast. It has likewise been stressed by the officials concerned that the
proposed amendments come in a package and may not be voted upon separately
but on an "all or nothing" basis.

5. Whether the people can normally express their will in a genuine manner and with
due circumspection on the proposed amendments amidst the constraints of martial
law is yet another question. That a period of free debate and discussion has to be
declared of itself shows the limitations on free debate and discussion. The facilities
for free debate and discussion over the mass media, print and otherwise are wanting.
The President himself is reported to have observed the timidity of the media under
martial law and to have directed the press to air the views of the opposition. 54

Indeed, the voice of the studentry as reflected in the editorial of the Philippine
Collegian issue of September 23, 1976 comes as a welcome and refreshing model of
conscientious deliberation, as our youth analyzes the issues "which will affect
generations yet to come" and urge the people to mull over the pros and cons very
carefully", as follows:

THE REFERENDUM ISSUES

On October 16, the people may be asked to decide on two important national issues
- the creation of a new legislative body and the lifting of martial law.

On the first issue, it is almost sure that the interim National Assembly will not be
convened, primarily because of its membership. Majority of the members of the
defunct Congress, who are mandated by the Constitution to become members of the
interim National Assembly, have gained so widespread a notoriety that the mere
mention of Congress conjures the image of a den of thieves who are out to fool the
people most of the time. Among the three branches of government, it was the most
discredited. In fact, upon the declaration of martial law, some people were heard to
mutter that a 'regime that has finally put an end to such congressional shenanigans
could not be all that bad'.

A substitute legislative body is contemplated to help the President in promulgating


laws, and perhaps minimize the issuance of ill-drafted decrees which necessitate
constant amendments. But care should be taken that this new legislative body would
not become a mere rubber stamp akin to those of other totalitarian countries. It
should be given real powers, otherwise we will just have another nebulous creation
having the form but lacking the substance. Already the President has expressed the
desire that among the powers he would like to have with regard to the proposed
legislative body is that of abolishing it in case 'there is a need to do so'. As to what
would occasion such a need, only the President himself can determine. This would
afford the Chief Executive almost total power over the legislature, for he could always
offer the members thereof a carrot and a stick.

On the matter of lifting martial law the people have expressed ambivalent attitudes.
Some of them, remembering the turmoil that prevailed before the declaration of
martial law, have expressed the fear that its lifting might precipitate the revival of the
abuses of the past, and provide an occasion for evil elements to resurface with their
usual tricks. Others say that it is about time martial law was lifted since the peace

and order situation has already stabilized and the economy seems to have been
parked up.

The regime of martial law has been with us for four years now. No doubt, martial law
has initially secured some reforms for the country The people were quite willing to
participate in the new experiment, thrilled by the novelty of it all. After the euphoria,
however, the people seem to have gone back to the old ways, with the exception that
some of our freedoms were taken away, and an authoritarian regime established.

We must bear in mind that martial law was envisioned only to cope with an existing
national crisis, It was not meant to be availed of for a long period of time, otherwise it
would undermine our adherence to a democratic form of government. In the words of
the Constitution. martial law shall only be declared in times of 'rebellion, insurrection,.
invasion, or imminent danger thereof, when the public safety requires it'. Since we no
longer suffer from internal disturbances of a gargantuan scale, it is about time we
seriously rethink the 'necessity' of prolonging the martial law regime. If we justify the
continuance of martial by economic or other reasons other than the foregoing
constitutional grounds, then our faith in the Constitution might be questioned. Even
without martial law,. the incumbent Chief Executive still holds vast powers under the
constitution. After all, the gains of the New Society can be secured without sacrificing
the freedom of our people. If the converse is true, then we might have to conclude
that the Filipinos deserve a dictatorial form of government. The referendum results
will show whether the people themselves have adopted this sad conclusion.

The response of the people to the foregoing issues will affect generations yet to
come, so they should mull over the pros and cons very carefully."

6. This opinion by written in the same spirit as the President's exhortations on the
first anniversary of proclamation of the 1973 Constitution that we "let the Constitution
remain firm and stable" so that it may "guide the people", and that we "remain
steadfast on the rule of law and the Constitution" as he recalled his rejection of the
"exercise (of) power that can be Identified merely with a revolutionary government"
that makes its own law, thus:

. . . Whoever he may be and whatever position he may happen t