EN BANC

SUZETTE NICOLAS y SOMBILON,

G.R. No. 175888

DECISION
AZCUNA, J.:
These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court of Appeals in Lance Corporal
Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212, dated January 2, 2007.
The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was charged with the crime of
rape committed against a Filipina, petitioner herein, sometime on November 1, 2005, as follows:
The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith Silkwood and
Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised Penal Code, as amended by Republic Act 8353,
upon a complaint under oath filed by Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex A,
committed as follows:
That on or about the First (1 st) day of November 2005, inside the Subic Bay Freeport Zone,
Olongapo City and within the jurisdiction of this Honorable Court, the above-named accuseds (sic), being
then members of the United States Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating
together and mutually helping one another, with lewd design and by means of force, threat and intimidation,
with abuse of superior strength and taking advantage of the intoxication of the victim, did then and there
willfully, unlawfully and feloniously sexually abuse and have sexual intercourse with or carnal knowledge of
one Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van with Plate No. WKF-162, owned
by Starways Travel and Tours, with Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven
by accused Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her
damage and prejudice.
CONTRARY TO LAW.1[1]
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on
February 10, 1998, the United States, at its request, was granted custody of defendant Smith pending the proceedings.

During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of Makati for security reasons, the
United States Government faithfully complied with its undertaking to bring defendant Smith to the trial court every time his presence was required.
On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence against accused
S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US Marine
Corps assigned at the USS Essex, are hereby ACQUITTED to the crime charged.

1[1]

Annex B of RTC Decision, CA rollo, p. 45.

The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH, also of the US
Marine Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE
defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with
Article 266-B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua together with the
accessory penalties provided for under Article 41 of the same Code.
Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the Philippines and the
United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall, thereafter, be agreed upon
by appropriate Philippine and United States authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J.
SMITH is hereby temporarily committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S. NICOLAS in the
amount of P50,000.00 as compensatory damages plus P50,000.00 as moral damages.
SO ORDERED.2[2]
As a result, the Makati court ordered Smith detained at the Makati jail until further orders.
On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents,
purportedly acting under orders of the Department of the Interior and Local Government, and brought to a facility for detention under the control of
the United States government, provided for under new agreements between the Philippines and the United States, referred to as the RomuloKenney Agreement of December 19, 2006 which states:
The Government of the Republic of the Philippines and the Government of the United States of America agree that, in
accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, United States
Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila.
(Sgd.) KRISTIE A. KENNEY (Sgd.) ALBERTO G. ROMULO
Representative of the United States Representative of the Republic
of America
of the Philippines
DATE: 12-19-06

DATE: December 19, 2006__

and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of America agree
that, in accordance with the Visiting Forces Agreement signed between the two nations, upon transfer of Lance Corporal Daniel
J. Smith, United States Marine Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building,
U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military
personnel. The Philippine police and jail authorities, under the direct supervision of the Philippine Department of Interior and
Local Government (DILG) will have access to the place of detention to ensure the United States is in compliance with the terms
of the VFA.
The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows:
WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having become moot.3[3]
Hence, the present actions.
The petitions were heard on oral arguments on September 19, 2008, after which the parties submitted their memoranda.
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all, the VFA is void and
unconstitutional.

2[2]

Annex B of CA rollo, pp. 36-96.

3[3]

Rollo, pp. 90-127.

This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. This was in Bayan v. Zamora,4[4]
brought by Bayan, one of petitioners in the present cases.
Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the parties, the reversal of the previous ruling is sought on
the ground that the issue is of primordial importance, involving the sovereignty of the Republic, as well as a specific mandate of the Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.
The reason for this provision lies in history and the Philippine experience in regard to the United States military bases in the country.
It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth and, eventually, for the
recognition of independence, the United States agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris,
plus a few islands later added to its realm, except certain naval ports and/or military bases and facilities, which the United States retained for
itself.

This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines covered by the RP-US
Military Bases Agreement of 1947 were not Philippine territory, as they were excluded from the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the United States. Furthermore, the RPUS Military Bases Agreement was never advised for ratification by the United States Senate, a disparity in treatment, because the Philippines
regarded it as a treaty and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of the RP-US Military Bases
Agreement in 1991, the territory covered by these bases were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Constitution.
The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in
Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the
situation in which the terms and conditions governing the presence of foreign armed forces in our territory were binding upon us but not upon the
foreign State.

Applying the provision to the situation involved in these cases, the question is whether or not the presence of US Armed Forces in
Philippine territory pursuant to the VFA is allowed under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other
contracting State.
This Court finds that it is, for two reasons.

4[4]

G.R. No. 138570, October 10, 2000, 342 SCRA 449.

First, as held in Bayan v. Zamora,5[5] the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by
the United States as attested and certified by the duly authorized representative of the United States government.
The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its status as a binding
international agreement or treaty recognized by the said State. For this is a matter of internal United States law. Notice can be taken of the
internationally known practice by the United States of submitting to its Senate for advice and consent agreements that are policymaking in nature,
whereas those that carry out or further implement these policymaking agreements are merely submitted to Congress, under the provisions of the
so-called CaseZablocki Act, within sixty days from ratification.6[6]

The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August 30, 1951. This earlier
agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate.
The RP-US Mutual Defense Treaty states:7[7]
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED STATES OF AMERICA.
Signed at Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to live in peace with all peoples and all governments, and desiring to strengthen the fabric of peace in the Pacific
area.
Recalling with mutual pride the historic relationship which brought their two peoples together in a
common bond of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war.
Desiring to declare publicly and formally their sense of unity and their common
determination to defend themselves against external armed attack, so that no potential aggressor could be under the
illusion that either of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for collective defense for the
preservation of peace and security pending the development of a more comprehensive system of regional security in the
Pacific area.

5[5]

Supra, note 4.

[6]

[7]

The Case-Zablocki Act, 1 U.S.C. 112b (a) (1976 ed., Supp IV). See also Weinberger v. Rossi, 456 U.S. 25
(1982), in which the U.S. Supreme Court sustained recognition as a treaty of agreements not concurred in by the
U.S. Senate.
The RP-US Mutual Defense Treaty was signed in Washington, D.C. on August 30, 1951. Its ratification
was advised by the US Senate on March 20, 1952, and the US President ratified the Treaty on April 15, 1952.
The Treaty was concurred in by the RP Senate, S.R. No. 84, May 12, 1952. The Philippine instrument of
ratification was signed by the RP President on August 27, 1952. The Agreement entered into force on August
27, 1952 upon the exchange of ratification between the Parties.
This Agreement is published in II DFA TS No. 1, p. 13; 177 UNTS, p. 133; 3 UST 3847-3952. The RP
Presidential proclamation of the Agreement, Proc. No. 341, S. 1952, is published in 48 O.G. 4224 (Aug.
1952).

Agreeing that nothing in this present instrument shall be considered or interpreted as in any way
or sense altering or diminishing any existing agreements or understandings between the Republic of the Philippines and the
United States of America.
Have agreed as follows:
ARTICLE I. The parties undertake, as set forth in the Charter of the United Nations, to settle any
international disputes in which they may be involved by peaceful means in such a manner that international peace and security
and justice are not endangered and to refrain in their international relation from the threat or use of force in any manner
inconsistent with the purposes of the United Nations.
ARTICLE II. In order more effectively to achieve the objective of this Treaty, the Parties
separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to
resist armed attack.
ARTICLE III. The Parties, through their Foreign Ministers or their deputies, will consult together
from time to time regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial
integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific.
ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either of the
parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in
accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately reported
to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the
measures necessary to restore and maintain international peace and security.
ARTICLE V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to
include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in
the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.
ARTICLE VI. This Treaty does not affect and shall not be interpreted as affecting in any way the
rights and obligations of the Parties under the Charter of the United Nations or the responsibility of the United Nations for the
maintenance of international peace and security.
ARTICLE VII. This Treaty shall be ratified by the Republic of the Philippines and the United
Nations of America in accordance with their respective constitutional processes and will come into force when instruments of
ratification thereof have been exchanged by them at Manila.
ARTICLE VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year
after notice has been given to the other party.
IN WITHNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
DONE in duplicate at Washington this thirtieth day of August, 1951.
For the Republic of the Philippines:
(Sgd.) CARLOS P. ROMULO
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
(Sgd.) DIOSDADO MACAPAGAL
For the United States of America:
(Sgd.) DEAN ACHESON
(Sgd.) JOHN FOSTER DULLES
(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY8[8]
Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist an armed attack fall squarely under
the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US military
exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty. The Preamble of the VFA states:

8[8]

Emphasis supplied.

The Government of the United States of America and the Government of the Republic of the Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to strengthen
international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines;
Considering that cooperation between the United States and the Republic of the Philippines promotes their common
security interests;
Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines;
Have agreed as follows:9[9]
Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US
Senate for advice and consent, but merely to the US Congress under the CaseZablocki Act within 60 days of its ratification. It is for this reason
that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the
requirements of Art. XVIII, Sec. 25 of our Constitution.10[10]

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of the US Armed Forces
through the VFA is a presence allowed under the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified
and concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such
presence
The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by its terms and
provisions.
The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the Philippines, the following rules
apply:
Article V
Criminal Jurisdiction
xxx
6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately
reside with United States military authorities, if they so request, from the commission of the offense until completion of all
judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without
delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the
offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to
the United States Government regarding custody, which the United States Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under
this paragraph. The one year period will not include the time necessary to appeal. Also, the one year period will not include any
time during which scheduled trial procedures are delayed because United States authorities, after timely notification by
Philippine authorities to arrange for the presence of the accused, fail to do so.

Petitioners contend that these undertakings violate another provision of the Constitution, namely, that providing for the exclusive power
of this Court to adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody of an

9[9]

Emphasis supplied.

10[10] See Letter of Ambassador Thomas C. Hubbard quoted in Bayan, 342 SCRA 449, 491.

accused to a foreign power is to provide for a different rule of procedure for that accused, which also violates the equal protection clause of the
Constitution (Art. III, Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a substantial basis for a different treatment of a member of a foreign military
armed forces allowed to enter our territory and all other accused.11[11]

The rule in international law is that a foreign armed forces allowed to enter ones territory is immune from local jurisdiction, except to the
extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions, according to
the situation of the parties involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction
over the forces of the sending State only to the extent agreed upon by the parties.12[12]

As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but rather
one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or apply except to
the extent agreed upon to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign
armed forces.

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as
custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and members of the armed forces contingents of
a foreign State allowed to enter another States territory. On the contrary, the Constitution states that the Philippines adopts the generally accepted
principles of international law as part of the law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to detention as against
custody. The moment the accused has to be detained, e.g., after conviction, the rule that governs is the following provision of the VFA:

Article V
Criminal Jurisdiction
xxx
Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in
facilities agreed on by appropriate Philippines and United States authorities. United States personnel serving sentences in the
Philippines shall have the right to visits and material assistance.

11

See, the summation of the rule on equal protection in ISAGANI A. CRUZ, CONSTITUTIONAL LAW,
pp. 123-139 (2007), and the authorities cited therein.
[11]

12[12] See Dieter Fleck, Ed., The HANDBOOK OF THE LAW OF VISITING FORCES , Oxford: 2001.

It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after conviction, because
they provided for a specific arrangement to cover detention. And this specific arrangement clearly states not only that the detention shall be
carried out in facilities agreed on by authorities of both parties, but also that the detention shall be by Philippine authorities. Therefore, the
Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in the United States
Embassy, are not in accord with the VFA itself because such detention is not by Philippine authorities.

Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an agreement on
detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.

Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v. Texas ( 552 US ___ No. 06-984, March
25, 2008), which held that treaties entered into by the United States are not automatically part of their domestic law unless these treaties are selfexecuting or there is an implementing legislation to make them enforceable.

On February 3, 2009, the Court issued a Resolution, thus:

G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 (Jovito R. Salonga, et al. v. Daniel
Smith, et al.); and G.R. No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al. v. President Gloria MacapagalArroyo, et al.).

The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:

1.

What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme Court decision in Jose
Ernesto Medellin v. Texas, dated March 25, 2008, to the effect that treaty stipulations that are not self-executory can
only be enforced pursuant to legislation to carry them into effect; and that, while treaties may comprise international
commitments, they are not domestic law unless Congress has enacted implementing statutes or the treaty itself
conveys an intention that it be self-executory and is ratified on these terms?

2.

Whether the VFA is enforceable in the US as domestic law, either because it is self-executory or because there
exists legislation to implement it.

3.

Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the US Senate and, if so, is
there proof of the US Senate advice and consent resolution? Peralta, J., no part.

After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties intend its provisions to be
enforceable, precisely because the Agreement is intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As

a matter of fact, the VFA has been implemented and executed, with the US faithfully complying with its obligation to produce L/CPL Smith before
the court during the trial.
Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec.
112(b), inasmuch as it is the very purpose and intent of the US Congress that executive agreements registered under this Act within 60 days from
their ratification be immediately implemented. The parties to these present cases do not question the fact that the VFA has been registered under
the Case-Zablocki Act.
In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena
decision of the International Court of Justice (ICJ), subject matter of the Medellin decision. The Convention and the ICJ decision are not selfexecuting and are not registrable under the Case-Zablocki Act, and thus lack legislative implementing authority.
Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20, 1952, as reflected in the US
Congressional Record, 82nd Congress, Second Session, Vol. 98 Part 2, pp. 2594-2595.
The framers of the Constitution were aware that the application of international law in domestic courts varies from country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL
COURTS, some countries require legislation whereas others do not.
It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to require the other contracting State to
convert their system to achieve alignment and parity with ours. It was simply required that the treaty be recognized as a treaty by the other
contracting State. With that, it becomes for both parties a binding international obligation and the enforcement of that obligation is left to the
normal recourse and processes under international law.
Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,13[13] an executive agreement is a treaty within the meaning of
that word in international law and constitutes enforceable domestic law vis--vis the United States. Thus, the US Supreme Court in Weinberger
enforced the provisions of the executive agreement granting preferential employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the American system:
1.

Art. II, Sec. 2 treaties These are advised and consented to by the US Senate in accordance with Art. II, Sec. 2 of the US
Constitution.

2.

ExecutiveCongressional Agreements: These are joint agreements of the President and Congress and need not be
submitted to the Senate.

3.

Sole Executive Agreements. These are agreements entered into by the President. They are to be submitted to Congress
within sixty (60) days of ratification under the provisions of the Case-Zablocki Act, after which they are recognized by the
Congress and may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been given under it and this can only
be done through implementing legislation. The VFA itself is another form of implementation of its provisions.

13

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals Decision in CA-G.R. SP No. 97212 dated January 2,
2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on
February 10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in
accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States
representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending
which the status quo shall be maintained until further orders by this Court.
The Court of Appeals is hereby directed to resolve without delay the related matters pending therein, namely, the petition for contempt
and the appeal of L/CPL Daniel Smith from the judgment of conviction.

No costs.
SO ORDERED.

ADOLFO S. AZCUNA
Associate Justic

Lambino vs COMELEC
G.R. No. 174153

October 25, 2006

FACTS:
On 25 August 2006, Lambino et al filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition to change the 1987
Constitution under Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act.
The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least twelve per centum (12%) of all
registered voters, with each legislative district represented by at least three per centum (3%) of its registered voters. The Lambino Group also
claimed that COMELEC election registrars had verified the signatures of the 6.3 million individuals.
The Lambino Groups initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI (Legislative Department)4 and
Sections 1-4 of Article VII (Executive Department) and by adding Article XVIII entitled Transitory Provisions. These proposed changes will shift
the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government.
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating modifications in the proposed Article XVIII
(Transitory Provisions) of their initiative.
The COMELEC denied the petition citing Santiago v. COMELEC declaring RA 6735 inadequate to implement the initiative clause on proposals to
amend the Constitution.
ISSUES:
1. Whether the Lambino Groups initiative petition complies with Section 2, Article XVII of the Constitution on amendments to the Constitution
through a peoples initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 incomplete, inadequate or wanting in essential terms and conditions
to implement the initiative clause on proposals to amend the Constitution; and

HELD:
1.

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

Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a peoples initiative to propose amendments to the
Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve
per centum of the total number of registered voters of which every legislative district must be represented by at least three per centum of the
registered voters therein. x x x x (Emphasis supplied)
The framers of the Constitution intended that the draft of the proposed constitutional amendment should be ready and shown to the people
before they sign such proposal. The framers plainly stated that before they sign there is already a draft shown to them. The framers also
envisioned that the people should sign on the proposal itself because the proponents must prepare that proposal and pass it around for
signature.
The essence of amendments directly proposed by the people through initiative upon a petition is that the entire proposal on its face is a petition
by the people. This means two essential elements must be present. First, the people must author and thus sign the entire proposal. No
agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by
signing such complete proposal in a petition. Thus, an amendment is directly proposed by the people through initiative upon a petition only if the
people sign on a petition that contains the full text of the proposed amendments.
There is no presumption that the proponents observed the constitutional requirements in gathering the signatures. The proponents bear the
burden of proving that they complied with the constitutional requirements in gathering the signatures that the petition contained, or
incorporated by attachment, the full text of the proposed amendments.
The Lambino Group did not attach to their present petition with this Court a copy of the paper that the people signed as their initiative petition. The
Lambino Group submitted to this Court a copy of a signature sheet after the oral arguments of 26 September 2006 when they filed their
Memorandum on 11 October 2006.
2.

A Revisit of Santiago v. COMELEC is Not Necessary

The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the Constitution on the
conduct and scope of a peoples initiative to amend the Constitution. There is no need to revisit this Courts ruling in Santiago declaring RA 6735
incomplete, inadequate or wanting in essential terms and conditions to cover the system of initiative to amend the Constitution. An affirmation or
reversal of Santiago will not change the outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively ruled
that RA 6735 does not comply with the requirements of the Constitution to implement the initiative clause on amendments to the Constitution.
G.R. No. 78059 August 31, 1987
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M.
RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as
OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V.
MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing them from their respective positions as
Barangay Captain and Barangay Councilmen of Barangay Dolores, Municipality of Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their Reply to respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay Captain and the other petitioners Angel S.
Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores,
Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982.

On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1, 1986 but signed by respondent OIC
Governor Benjamin Esguerra on February 8, 1987 designating respondent Florentino G. Magno as Barangay Captain of Barangay Dolores,
Taytay, Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local Government."
Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986 designating respondents Remigio M.
Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the same
Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the pertinent portions of which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;
That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I among others, have signed
as I did sign the unnumbered memorandum ordering the replacement of all the barangay officials of all the barangay(s) in the
Municipality of Taytay, Rizal;
That the above cited memorandum dated December 1, 1986 was signed by me personally on February 8,1987;
That said memorandum was further deciminated (sic) to all concerned the following day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and void and that respondents be prohibited
from taking over their positions of Barangay Captain and Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of
the Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence on June 7, 1982 and shall
continue until their successors shall have elected and shall have qualified," or up to June 7, 1988. It is also their position that with the ratification
of the 1987 Constitution, respondent OIC Governor no longer has the authority to replace them and to designate their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated on March 25, 1986, which provided:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February 25,1986.
By reason of the foregoing provision, respondents contend that the terms of office of elective and appointive officials were abolished and that
petitioners continued in office by virtue of the aforequoted provision and not because their term of six years had not yet expired; and that the
provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be deemed to have been repealed for
being inconsistent with the aforequoted provision of the Provisional Constitution.
Examining the said provision, there should be no question that petitioners, as elective officials under the 1973 Constitution, may continue in office
but should vacate their positions upon the occurrence of any of the events mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no proclamation or executive order terminating the term of elective
Barangay officials. Thus, the issue for resolution is whether or not the designation of respondents to replace petitioners was validly made during
the one-year period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be considered as the effective date of
replacement and not December 1,1986 to which it was ante dated, in keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the Provisional Constitution must be
deemed to have been overtaken by Section 27, Article XVIII of the 1987 Constitution reading.
SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite
held for the purpose and shall supersede all previous Constitutions.

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional Constitution must be deemed to
have been superseded. Having become inoperative, respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate
respondents to the elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of tenure specially considering that the Barangay Election Act of 1982 declares it "a policy
of the State to guarantee and promote the autonomy of the barangays to ensure their fullest development as self-reliant communities. 2 Similarly,
the 1987 Constitution ensures the autonomy of local governments and of political subdivisions of which the barangays form a part, 3 and limits the
President's power to "general supervision" over local governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further
provides in part:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three
years ...
Until the term of office of barangay officials has been determined by law, therefore, the term of office of six (6) years provided for in the Barangay
Election Act of 1982 5 should still govern.
Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for elective Barangay officials and the 1987
Constitution, and the same should, therefore, be considered as still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution,
reading:
Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other executive issuances not
inconsistent, with this Constitution shall remain operative until amended, repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating respondents as the Barangay Captain
and Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ
of Prohibition is granted enjoining respondents perpetually from proceeding with the ouster/take-over of petitioners' positions subject of this
Petition. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, CJ., concurring:

The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that the plebiscite for its
ratification was held or whether it took effect on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the
President of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section 27 of the 1987
Constitution that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall have been ascertained and not
at the time the people cast their votes to approve or reject it." This view was actually proposed at the Constitutional Commission deliberations, but
was withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will be effective on the very day of the
plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that the clear,
unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor and none against) the
aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the people. So that
is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during the
date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the
Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite."

The record of the deliberations and the voting is reproduced hereinbelow: 1

MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee as indicated in
Section 12, unless there are other commissioners who would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after "constitutions," add the following: "AND THEIR
AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an additional sentence, the
committee would suggest that we take up first his amendment to the first sentence as originally formulated. We are now ready
to comment on that proposed amendment.
The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the words "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment would be: After the word
"constitutions," add the words" AND THEIR AMENDMENTS,"
The committee accepts the first proposed amendment. However, we regret that we cannot accept the second proposed
amendment after the word "constitutions" because the committee feels that when we talk of all previous Constitutions,
necessarily it includes "AND THEIR AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request that I be allowed to
read the second amendment so the Commission would be able to appreciate the change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS FOLLOWING
THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the second proposed
amendment in the form of a new sentence would not be exactly necessary and the committee feels that it would be too much
for us to impose a time frame on the President to make the proclamation. As we would recall, Madam President, in the
approved Article on the Executive, there is a provision which says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it says that there will be a proclamation by the President that the
Constitution has been ratified, the President will naturally comply with the law in accordance with the provisions in the Article on
the Executive which we have cited. It would be too much to impose on the President a time frame within which she will make
that declaration. It would be assumed that the President would immediately do that after the results shall have been canvassed
by the COMELEC.
Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is proposing, Madam
President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate proclamation of the
results by the President.
MR. MAAMBONG. With that understanding, Madam President.
MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.

FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes the effectivity of the new
Constitution dependent upon the proclamation of the President. The effectivity of the Constitution should commence on the
date of the ratification, not on the date of the proclamation of the President. What is confusing, I think, is what happened in
1976 when the amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were effective
upon the proclamation of the President was that the draft presented to the people said that the amendment will be effective
upon the proclamation made by the President. I have a suspicion that was put in there precisely to give the President some
kind of leeway on whether to announce the ratification or not. Therefore, we should not make this dependent on the action of
the President since this will be a manifestation of the act of the people to be done under the supervision of the COMELEC and
it should be the COMELEC who should make the announcement that, in fact, the votes show that the Constitution was ratified
and there should be no need to wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the Constitution is supposed to be
ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the Constitution to a
plebiscite, the people exercise their right to vote, then the votes are canvassed by the Commission on Elections. If we delete
the suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what
would be, in clear terms, the date when the Constitution is supposed to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite would be held, for
instance, on January 19, 1987, then the date for the effectivity of the new Constitution would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the Commission on Elections
which will be doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when one casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the proponent, Commissioner
Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view of Commissioner
Bernas, that the date of the ratification is reckoned from the date of the casting of the ballots. That cannot be the date of
reckoning because it is a plebiscite all over the country. We do not split the moment of casting by each of the voters. Actually
and technically speaking, it would be all right if it would be upon the announcement of the results of the canvass conducted by
the COMELEC or the results of the plebiscite held all over the country. But it is necessary that there be a body which will make
the formal announcement of the results of the plebiscite. So it is either the President or the COMELEC itself upon the
completion of the canvass of the results of the plebiscite, and I opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.
THE PRESIDENT. Commissioner Nolledo is recognized.
MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support the stand of
Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date of the ratification of the
Constitution The announcement merely confirms the ratification even if the results are released two or three days after. I think it
is a fundamental principle in political law, even in civil law, because an announcement is a mere confirmation The act of
ratification is the act of voting by the people. So that is the date of the ratification. If there should be any need for presidential
proclamation, that proclamation will merely confirm the act of ratification.

Thank you, Madam President.

THE PRESIDENT. Does Commissioner Regalado want to contribute?
MR. REGALADO. Madam President, I was precisely going to state the same support for Commissioner Bernas, because the
canvass thereafter is merely the mathematical confirmation of what was done during the date of the plebiscite and the
proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino
people in adopting the Constitution when they cast their votes on the date of the plebiscite.
MR. LERUM. Madam President, may I be recognized.
THE PRESIDENT. Commissioner Lerum is recognized.
MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of the Constitution.
Suppose the announcement is delayed by, say, 10 days or a month, what happens to the obligations and rights that accrue
upon the approval of the Constitution? So I think we must have a definite date. I am, therefore, in favor of the Davide
amendment.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized.
MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission on Elections to declare
the results of the canvass?
FR. BERNAS. There would be because it is the Commission on Elections which makes the official announcement of the
results.
MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has declared the results of the
canvass, will there be a necessity for the President to make a proclamation of the results of the canvass as submitted by the
Commission on Elections?
FR. BERNAS. I would say there would be no necessity, Madam President.
MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the Constitution has been
ratified or not.
FR. BERNAS. I would say that the proclamation made by the President would be immaterial because under the law, the
administration of all election laws is under an independent Commission on Elections. It is the Commission on Elections which
announces the results.
MR. MAAMBONG. But nevertheless, the President may make the proclamation.
FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections says, it would have
no effect. I would only add that when we say that the date of effectivity is on the day of the casting of the votes, what we mean
is that the Constitution takes effect on every single minute and every single second of that day, because the Civil Code says a
day has 24 hours.So that even if the votes are cast in the morning, the Constitution is really effective from the previous
midnight.
So that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody born on the date of effectivity
of the 1973 Constitution, which is January 17, 1973, are natural-born citizens, no matter what time of day or night.
MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of the canvass by the
COMELEC retroacts to the date of the plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.

THE PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the proposal of
Commissioner Bernas which speaks of the date (of ratification that would have a definite date, because there would be no
definite date if we depend upon the canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President, would announce that
a majority of the votes cast on a given date was in favor of the Constitution. And that is the date when the Constitution takes
effect, apart from the fact that the provision on the drafting or amendment of the Constitution provides that a constitution
becomes effective upon ratification by a majority of the votes cast, although I would not say from the very beginning of the date
of election because as of that time it is impossible to determine whether there is a majority. At the end of the day of election or
plebiscite, the determination is made as of that time-the majority of the votes cast in a plebiscite held on such and such a date.
So that is the time when the new Constitution will be considered ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I support the view of
Commissioner Bernas and the others because the ratification of the Constitution is on the date the people, by a majority vote,
have cast their votes in favor of the Constitution. Even in civil law, if there is a contract, say, between an agent and a third
person and that contract is confirmed or ratified by the principal, the validity does not begin on the date of ratification but it
retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast their affirmative votes in
favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective on the very day of the
plebiscite, I am withdrawing my amendment on the assumption that any of the following bodies the Office of the President or
the COMELEC will make the formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the committee.
MR. MAAMBONG. The committee will read again the formulation indicated in the original committee report as Section 12.
This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the
purpose and shall supersede all previous Constitutions.
We ask for a vote, Madam President.
VOTING
THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their hands.)
As many as are against, please raise their hand. (No Member raised his hand.)
The results show 35 votes in favor and none against; Section 12 is approved. 2

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its ratification in the plebiscite held
on February 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the
1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent any saying clause to the contrary
in the Transitory Article of the Constitution, respondent OIC Governor could no longer exercise the power to replace petitioners in their positions
as Barangay Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC Governor's designation on February
8, 1987 of their successors could no longer produce any legal force and effect. While the Provisional Constitution provided for a one-year period
expiring on March 25, 1987 within which the power of replacement could be exercised, this period was shortened by the ratification and effectivity
on February 2, 1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so provided for in
the Transitory Article, as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII, e.g. extension of the sixyear term of the incumbent President and Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the continued
exercise of legislative powers by the incumbent President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals Justices, 71 provincial fiscals
and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of
Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the Judicial and Bar Council created under the
Constitution. It should be stated for the record that the reported date of the appointments, February 2, 1987, is incorrect. The official records of the
Court show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on February 1, 1987 and they were all
appointed on or before January 31, 1987. 3 (Similarly, the records of the Department of Justice likewise show that the appointment papers of the
last batch of provincial and city fiscals signed by the President in completion of the reorganization of the prosecution service were made on
January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no
appointments to the Judiciary have been extended by the President, pending the constitution of the Judicial and Bar Council, indicating that the
Chief Executive has likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones of thunder. She has written
another persuasive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and
Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having acquired security of tenure under the new
Constitution. Our difference is that whereas I would make that right commence on February 25, 1987, after the deadline set by the Freedom
Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with her
ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the tenure of
government functionaries, as follows:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February 25, 1986.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on February 2, 1987,
the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same
was proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for
the purpose and shall supersede all previous Constitutions.
It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been ascertained, and not at the time the
people cast their votes to approve or reject it. For it cannot be logically said that Constitution was ratified during such a plebiscite, when the will of
the people as of that time, had not, and could not have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have been valid under the
Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in particular, the appointments of some seven Court
of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections 8 (1) and 9,
Article VIII, of the l987 Constitution, as follows:

xxx xxx xxx

Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex oficio Members, a
representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the
private sector.
xxx xxx xxx
Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least
three nominees prepared by the Judicial and Bar Council for every vacancy, Such appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments thereto from the date it is
proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation No. 1102,
"Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr.
Justice, now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision in Javellana v. Executive
Secretary, 3 became final. And this was so notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called
for the purpose and, except as herein provided, shall supersede the Constitution of nineteen-hundred and thirty- five and all
amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the 1976 amendments submitted
in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as duly ratified by the Filipino
people in the referendum- plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by a
majority of the votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the Filipino People of the Amendments
of Section 7, Article X of the Constitution" (lengthening the terms of office of judges and justices). The Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held, together with the
election for local officials, on January 30, 1980, and that said amendment is hereby declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect on the date the incumbent
President/Prime Minister shall proclaim its ratification.
On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the Amendments to the
Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in
declaring the said amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the date of this Proclamation,"
It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a
Constituent Assembly, which parented these amendments, the same:
. . .shall become valid as part of the Constitution when approved by a majority of the votes cast in a plebiscite to be held
pursuant to Section 2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection, the Amendment to the
Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two,
and One, and to Appropriate Funds Therefore," provides, as follows:

SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the plebiscite using the
certificates submitted to it, duly authenticated and certified by the Board of Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the Amendments to the
Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:
....are therefore effective and in full force and effect as of the date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President of the Philippines shall proclaim that they have been
ratified by a majority of the votes cast in the plebiscite held for the purpose, but not later than three months from the approval of
the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an
election/plebiscite at which it is submitted to the people for their ratification pursuant to Section 2 of Article XVI of the
Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite is a view that is
not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to Republic Act No. 73 and the
Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no
mention of a retroactive application.
Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of 1986, including the
Ordinance appended thereto, has been duly ratified by the Filipino people and is therefore effective and in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter was ratified on February 2, 1987, does not
in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve the case on account of a categorical holding that
the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on February 8, 1987 were valid, the
1987 Constitution not being then as yet in force.

Separate Opinions
TEEHANKEE, CJ., concurring:
The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February 2, 1987, the date that the plebiscite for its
ratification was held or whether it took effect on February 11, 1987, the date its ratification was proclaimed per Proclamation No. 58 of the
President of the Philippines, Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision of Article XVIII, Section 27 of the 1987
Constitution that it "shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987
Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date.
The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its ratification shall have been ascertained and not
at the time the people cast their votes to approve or reject it." This view was actually proposed at the Constitutional Commission deliberations, but

was withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will be effective on the very day of the
plebiscite."
The record of the proceedings and debates of the Constitutional Commission fully supports the Court's judgment. It shows that the clear,
unequivocal and express intent of the Constitutional Conunission in unanimously approving (by thirty-five votes in favor and none against) the
aforequoted Section 27 of Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the people. So that
is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during the
date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the
Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite."
The record of the deliberations and the voting is reproduced hereinbelow: 1
MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee as indicated in
Section 12, unless there are other commissioners who would like to present amendments.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. May I propose the following amendments.
On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE PROCLAMATION BY THE
PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after "constitutions," add the following: "AND THEIR
AMENDMENTS."
MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an additional sentence, the
committee would suggest that we take up first his amendment to the first sentence as originally formulated. We are now ready
to comment on that proposed amendment.
The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the words "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second amendment would be: After the word
"constitutions," add the words" AND THEIR AMENDMENTS,"
The committee accepts the first proposed amendment. However, we regret that we cannot accept the second proposed
amendment after the word "constitutions" because the committee feels that when we talk of all previous Constitutions,
necessarily it includes "AND THEIR AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request that I be allowed to
read the second amendment so the Commission would be able to appreciate the change in the first.
MR. MAAMBONG. Yes, Madam President, we can now do that.
MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS FOLLOWING
THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the second proposed
amendment in the form of a new sentence would not be exactly necessary and the committee feels that it would be too much
for us to impose a time frame on the President to make the proclamation. As we would recall, Madam President, in the
approved Article on the Executive, there is a provision which says that the President shall make certain that all laws shall be
faithfully complied. When we approve this first sentence, and it says that there will be a proclamation by the President that the
Constitution has been ratified, the President will naturally comply with the law in accordance with the provisions in the Article on
the Executive which we have cited. It would be too much to impose on the President a time frame within which she will make
that declaration. It would be assumed that the President would immediately do that after the results shall have been canvassed
by the COMELEC.
Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is proposing, Madam
President.
MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate proclamation of the
results by the President.

MR. MAAMBONG. With that understanding, Madam President.

MR. DAVIDE. I will not insist on the second sentence.
FR. BERNAS. Madam President.
THE PRESIDENT. Commissioner Bernas is recognized.
FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes the effectivity of the new
Constitution dependent upon the proclamation of the President. The effectivity of the Constitution should commence on the
date of the ratification, not on the date of the proclamation of the President. What is confusing, I think, is what happened in
1976 when the amendments of 1976 were ratified. In that particular case, the reason the amendments of 1976 were effective
upon the proclamation of the President was that the draft presented to the people said that the amendment will be effective
upon the proclamation made by the President. I have a suspicion that was put in there precisely to give the President some
kind of leeway on whether to announce the ratification or not. Therefore, we should not make this dependent on the action of
the President since this will be a manifestation of the act of the people to be done under the supervision of the COMELEC and
it should be the COMELEC who should make the announcement that, in fact, the votes show that the Constitution was ratified
and there should be no need to wait for any proclamation on the part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?
FR. BERNAS. Willingly, Madam President.
MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the Constitution is supposed to be
ratified.
FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the Constitution to a
plebiscite, the people exercise their right to vote, then the votes are canvassed by the Commission on Elections. If we delete
the suggested amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED," what
would be, in clear terms, the date when the Constitution is supposed to be ratified or not ratified, as the case may be?
FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite would be held, for
instance, on January 19, 1987, then the date for the effectivity of the new Constitution would be January 19, 1987.
MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the Commission on Elections
which will be doing the canvass? That is immaterial Madam President
FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when one casts his ballot.
MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the proponent, Commissioner
Davide, if he is insisting on his amendment.
MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view of Commissioner
Bernas, that the date of the ratification is reckoned from the date of the casting of the ballots. That cannot be the date of
reckoning because it is a plebiscite all over the country. We do not split the moment of casting by each of the voters. Actually
and technically speaking, it would be all right if it would be upon the announcement of the results of the canvass conducted by
the COMELEC or the results of the plebiscite held all over the country. But it is necessary that there be a body which will make
the formal announcement of the results of the plebiscite. So it is either the President or the COMELEC itself upon the
completion of the canvass of the results of the plebiscite, and I opted for the President.
xxx xxx xxx
MR. NOLLEDO. Madam President.

THE PRESIDENT. Commissioner Nolledo is recognized.

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

MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of the canvass by the
COMELEC retroacts to the date of the plebiscite?
FR. BERNAS. Yes, Madam President.
MR. MAAMBONG. I thank the Commissioner.
MR. GUINGONA. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the proposal of
Commissioner Bernas which speaks of the date (of ratification that would have a definite date, because there would be no
definite date if we depend upon the canvassing by the COMELEC.
Thank you,
THE PRESIDENT. Commissioner Concepcion is recognized.
MR. CONCEPCION. Thank you, Madam President.
Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President, would announce that
a majority of the votes cast on a given date was in favor of the Constitution. And that is the date when the Constitution takes
effect, apart from the fact that the provision on the drafting or amendment of the Constitution provides that a constitution
becomes effective upon ratification by a majority of the votes cast, although I would not say from the very beginning of the date
of election because as of that time it is impossible to determine whether there is a majority. At the end of the day of election or
plebiscite, the determination is made as of that time-the majority of the votes cast in a plebiscite held on such and such a date.
So that is the time when the new Constitution will be considered ratified and, therefore, effective.
THE PRESIDENT. May we now hear Vice-President Padilla.
MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I support the view of
Commissioner Bernas and the others because the ratification of the Constitution is on the date the people, by a majority vote,
have cast their votes in favor of the Constitution. Even in civil law, if there is a contract, say, between an agent and a third
person and that contract is confirmed or ratified by the principal, the validity does not begin on the date of ratification but it
retroacts from the date the contract was executed.
Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast their affirmative votes in
favor of the Constitution.
MR. MAAMBONG. Madam President.
THE PRESIDENT. Commissioner Maambong is recognized
MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment
MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective on the very day of the
plebiscite, I am withdrawing my amendment on the assumption that any of the following bodies the Office of the President or
the COMELEC will make the formal announcement of the results.
MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the committee.
MR. MAAMBONG. The committee will read again the formulation indicated in the original committee report as Section 12.
This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the
purpose and shall supersede all previous Constitutions.
We ask for a vote, Madam President.

VOTING
THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their hands.)
As many as are against, please raise their hand. (No Member raised his hand.)
The results show 35 votes in favor and none against; Section 12 is approved. 2
The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the date of its ratification in the plebiscite held
on February 2, 1987, that: (1) the Provisional Constitution promulgated on March 25, 1986 must be deemed to have been superseded by the
1987 Constitution on the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent any saying clause to the contrary
in the Transitory Article of the Constitution, respondent OIC Governor could no longer exercise the power to replace petitioners in their positions
as Barangay Captain and Councilmen. Hence, the attempted replacement of petitioners by respondent OIC Governor's designation on February
8, 1987 of their successors could no longer produce any legal force and effect. While the Provisional Constitution provided for a one-year period
expiring on March 25, 1987 within which the power of replacement could be exercised, this period was shortened by the ratification and effectivity
on February 2, 1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so provided for in
the Transitory Article, as indeed they provided for multifarious transitory provisions in twenty six sections of Article XVIII, e.g. extension of the sixyear term of the incumbent President and Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the continued
exercise of legislative powers by the incumbent President until the convening of the first Congress, etc.
A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court of Appeals Justices, 71 provincial fiscals
and 55 city fiscals reported extended (by) the President on February 2, 1987 . . . could be open to serious questions," in view of the provisions of
Sections 8 (1) and 9, Article VIII of the Constitution which require prior endorsement thereof by the Judicial and Bar Council created under the
Constitution. It should be stated for the record that the reported date of the appointments, February 2, 1987, is incorrect. The official records of the
Court show that the appointments of the seven Court of Appeals Justices were transmitted to this Court on February 1, 1987 and they were all
appointed on or before January 31, 1987. 3 (Similarly, the records of the Department of Justice likewise show that the appointment papers of the
last batch of provincial and city fiscals signed by the President in completion of the reorganization of the prosecution service were made on
January 31, 1987 and transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2, 1987, no
appointments to the Judiciary have been extended by the President, pending the constitution of the Judicial and Bar Council, indicating that the
Chief Executive has likewise considered February 2, 1987 as the effective date of the Constitution, as now expressly declared by the Court.
CRUZ, J., concurring.
In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than the tones of thunder. She has written
another persuasive opinion, and I am delighted to concur. I note that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and
Bayas cases, where I submitted that the local OICs may no longer be summarily replaced, having acquired security of tenure under the new
Constitution. Our difference is that whereas I would make that right commence on February 25, 1987, after the deadline set by the Freedom
Constitution, Justice Herrera would opt for February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with her
ponencia completely.
SARMIENTO, J., Dissenting.
With due respect to the majority I register this dissent.
While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution with respect to the tenure of
government functionaries, as follows:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February 25, 1986.
was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that cut-off period began on February 2, 1987,
the date of the plebiscite held to approve the new Charter. To my mind the 1987 constitution took effect on February 11, 1987, the date the same
was proclaimed ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2, 1987, plebiscite day.
I rely, first and foremost, on the language of the 1987 Charter itself, thus:
Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for
the purpose and shall supersede all previous Constitutions.

It is my reading of this provision that the Constitution takes effect on the date its ratification shall have been ascertained, and not at the time the
people cast their votes to approve or reject it. For it cannot be logically said that Constitution was ratified during such a plebiscite, when the will of
the people as of that time, had not, and could not have been, vet determined.
Other than that, pragmatic considerations compel me to take the view.
I have no doubt that between February 2, and February 11, 1987 the government performed acts that would have been valid under the
Provisional Constitution but would otherwise have been void under the 1987 Charter. I recall, in particular, the appointments of some seven Court
of Appeals Justices, 71 provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections 8 (1) and 9,
Article VIII, of the l987 Constitution, as follows:
xxx xxx xxx
Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex oficio Members, a
representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the
private sector.
xxx xxx xxx
2Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at
least three nominees prepared by the Judicial and Bar Council for every vacancy, Such appointments need no confirmation.
xxx xxx xxx
such appointments could be open to serious questions.
Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the amendments thereto from the date it is
proclaimed ratified.
In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17, 1973, the date Proclamation No. 1102,
"Announcing the Ratification by the Filipino People of the Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr.
Justice, now Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision in Javellana v. Executive
Secretary, 3 became final. And this was so notwithstanding Section 16, Article XVII, of the 1973 Constitution, thus:
SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called
for the purpose and, except as herein provided, shall supersede the Constitution of nineteen-hundred and thirty- five and all
amendments thereto.
On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the ratification of the 1976 amendments submitted
in the plebiscite of October 16- 17, 1976. The Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this certificate as duly ratified by the Filipino
people in the referendum plebiscite held Oct. 16-17, 1976 and are therefore effective and in full force and effect as of this date.
It shall be noted that under Amendment No. 9 of the said 1976 amendments.
These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by a
majority of the votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by the Filipino People of the Amendments
of Section 7, Article X of the Constitution" (lengthening the terms of office of judges and justices). The Proclamation provides:
[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite held, together with the
election for local officials, on January 30, 1980, and that said amendment is hereby declared to take effect immediately.
It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall take effect on the date the incumbent
President/Prime Minister shall proclaim its ratification.

On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April 7, 1981 of the Amendments to the
Constitution Embodied in Batas Pambansa Blg. 122 and Declaring Them Therefore Effective and in Full Force and Effect." The Proclamation, in
declaring the said amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the date of this Proclamation,"
It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the Batasang Pambansa, Third Regular Session, Sitting as a
Constituent Assembly, which parented these amendments, the same:
... shall become valid as part of the Constitution when approved by a majority of the votes cast in a plebiscite to be held
pursuant to Section 2, Article XVI of the Constitution.
On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or Rejection, the Amendment to the
Constitution of the Philippines, Proposed by the Batasang Pambansa, Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two,
and One, and to Appropriate Funds Therefore," provides, as follows:
SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the plebiscite using the
certificates submitted to it, duly authenticated and certified by the Board of Canvassers of each province or city.
We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27, 1984, of the Amendments to the
Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105, 110, 111, 112 and 113." It states that the amendments:
....are therefore effective and in full force and effect as of the date of this Proclamation.
It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg. 643), which states, that:
The proposed amendments shall take effect on the date the President of the Philippines shall proclaim that they have been
ratified by a majority of the votes cast in the plebiscite held for the purpose, but not later than three months from the approval of
the amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:
These amendments shall be valid as a part of the Constitution when approved by a majority of the votes cast in an election/plebiscite at which it is
submitted to the people for their ratification pursuant to Section 2 of Article XVI of the Constitution, as amended.
That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at the time of the plebiscite is a view that is
not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called pursuant to Republic Act No. 73 and the
Resolution of Both Houses (of Congress) adopted on September 18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no
mention of a retroactive application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at
Malacanang Palace:
... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of 1986, including the
Ordinance appended thereto, has been duly ratified by the Filipino people and is therefore effective and in full force and effect. 4
the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time.
I submit that our ruling in Ponsica v. Ignalaga 5 in which we declared, in passing, that the new Charter was ratified on February 2, 1987, does not
in any way weaken this dissent. As I stated, the remark was said in passing-we did not resolve the case on account of a categorical holding that
the 1987 Constitution came to life on February 2, 1987. In any event, if we did, I now call for its re-examination.
I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals done on February 8, 1987 were valid, the
1987 Constitution not being then as yet in force.