The hostage drama dragged on even after the driver of the bus
G.R. No. 196231 September 4, 2012
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting
through and represented by EXECUTIVE SECRETARY PAQUITO
N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE
AMOR M. AMORANDO, Officer in Charge, Office of the Deputy
Executive Secretary for Legal Affairs, ATTY. RONALDO A.
GERON, DIR. ROWENA TURINGAN-SANCHEZ, and ATTY.
CARLITOD. CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT, Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., in his capacity as EXECUTIVE
SECRETARY, OFFICE OF THE PRESIDENT, ATTY. DENNIS F.
ORTIZ, ATTY. CARLO D.SULAY and ATTY. FROILAN
MONTALBAN, .JR., in their capacities as CHAIRMAN and
MEMBERS of the OFFICE OF MALACAÑANG LEGAL AFFAIRS,
Respondents.
DECISION
PERLAS-BERNABE, J.:
The Case
These two petitions have been consolidated not because they stem
from the same factual milieu but because they raise a common thread
of issues relating to the President's exercise of the power to remove
from office herein petitioners who claim the protective cloak of
independence of the constitutionally-created office to which they
belong - the Office of the Ombudsman.
The first case, docketed as G.R. No. 196231, is a Petition for Certiorari
(with application for issuance of temporary restraining order or status
quo order) which assails on jurisdictional grounds the Decision1 dated
March 31, 2011 rendered by the Office of the President in OP Case
No. 10-J-460 dismissing petitioner Emilio A. Gonzales III, Deputy
Ombudsman for the Military and Other Law Enforcement Offices
(MOLEO), upon a finding of guilt on the administrative charges of
Gross Neglect of Duty and Grave Misconduct constituting a Betrayal of
Public Trust. The petition primarily seeks to declare as unconstitutional
Section 8(2) of Republic Act (R.A.) No. 6770, otherwise known as the
Ombudsman Act of 1989, which gives the President the power to
dismiss a Deputy Ombudsman of the Office of the Ombudsman.
The second case, docketed as G.R. No. 196232, is a Petition for
Certiorari and Prohibition (with application for issuance of a temporary
restraining order or status quo order) seeking to annul, reverse and set
aside (1) the undated Order2 requiring petitioner Wendell Barreras-
Sulit to submit a written explanation with respect to alleged acts or
omissions constituting serious/grave offenses in relation to the Plea
Bargaining Agreement (PLEBARA) entered into with Major General
Carlos F. Garcia; and (2) the April 7, 2011 Notice of Preliminary
Investigation,3 both issued by the Office of the President in OP-DC-
Case No. 11-B-003, the administrative case initiated against petitioner
as a Special Prosecutor of the Office of the Ombudsman. The petition
likewise seeks to declare as unconstitutional Section 8(2) of R.A. No.
6770 giving the President the power to dismiss a Special Prosecutor of
the Office of the Ombudsman.
The facts from which these two cases separately took root are neither
complicated nor unfamiliar.
In the morning of August 23, 2010, news media scampered for a
minute-by-minute coverage of a hostage drama that had slowly
unfolded right at the very heart of the City of Manila. While initial news
accounts were fragmented it was not difficult to piece together the story
on the hostage-taker, Police Senior Inspector Rolando Mendoza. He
was a disgruntled former police officer attempting to secure his
reinstatement in the police force and to restore the benefits of a life-
long, and erstwhile bemedaled, service. The following day,
broadsheets and tabloids were replete with stories not just of the
deceased hostage-taker but also of the hostage victims, eight of whom
died during the bungled police operation to rescue the hapless
innocents. Their tragic deaths triggered word wars of foreign relation
proportions. One newspaper headline ran the story in detail, as follows:
MANILA, Philippines - A dismissed policeman armed with an assault
rifle hijacked a bus packed with tourists, and killed most of its
passengers in a 10 hour-hostage drama shown live on national
television until last night.
Former police senior inspector Rolando Mendoza was shot dead by a
sniper at past 9 p.m. Mendoza hijacked the bus and took 21 Chinese
tourists hostage, demanding his reinstatement to the police force.
1
managed to escape and told police that all the remaining passengers
had been killed.
Late into the night assault forces surrounded the bus and tried to gain
entry, but a pair of dead hostages hand-cuffed to the door made it
difficult for them. Police said they fired at the wheels of the bus to
immobilize it.
Police used hammers to smash windows, door and wind-shield but
were met with intermittent fire from the hos-tage taker.
Police also used tear gas in an effort to confirm if the remaining
hostages were all dead or alive. When the standoff ended at nearly 9
p.m., some four hostages were rescued alive while Mendoza was killed
by a sniper.
Initial reports said some 30 policemen stormed the bus. Shots also
rang out, sending bystanders scampering for safety.
It took the policemen almost two hours to assault the bus because
gunfire reportedly rang out from inside the bus.
Mendoza hijacked the tourist bus in the morning and took the tourists
hostage.
Mendoza, who claimed he was illegally dismissed from the police
service, initially released nine of the hostages during the drama that
began at 10 a.m. and played out live on national television.
Live television footage showed Mendoza asking for food for those
remaining in the bus, which was delivered, and fuel to keep the air-
conditioning going. The disgruntled former police officer was reportedly
armed with an M-16 rifle, a 9 mm pistol and two hand grenades.
Mendoza posted a handwritten note on the windows of the bus, saying
"big deal will start after 3 p.m. today." Another sign stuck to another
window said "3 p.m. today deadlock."
Stressing his demand, Mendoza stuck a piece of paper with a
handwritten message: "Big mistake to correct a big wrong decision." A
larger piece of paper on the front windshield was headed, "Release
final decision," apparently referring to the case that led to his dismissal
from the police force.
Negotiations dragged on even after Mendoza's self-imposed deadline.
Senior Police Officer 2 Gregorio Mendoza said his brother was upset
over his dismissal from the police force. "His problem was he was
unjustly removed from service. There was no due process, no hearing,
no com-plaint," Gregorio said.
Last night, Gregorio was arrested by his colleagues on suspicions of
being an accessory to his brother's action. Tensions rose as relatives
tried to prevent lawmen from arresting Gregorio in front of national
television. This triggered the crisis that eventually forced Mendoza to
carry out his threat and kill the remaining hostages.
Negotiators led by Superintendent Orlando Yebra and Chief Inspector
Romeo Salvador tried to talk Mendoza into surrendering and releasing
the 21 hostages, mostly children and three Filipinos, including the
driver, the tourist guide and a photographer. Yebra reportedly lent a
cellphone to allow communications with Mendoza in-side the bus,
which was parked in front ofthe Quirino Grandstand.
Children could be seen peeking from the drawn curtains of the bus
while police negotiators hovered near the scene.
Manila Police District (MPD) director Chief Superinten-dent Rodolfo
Magtibay ordered the deployment of crack police teams and snipers
near the scene. A crisis man-agement committee had been activated
with Manila Vice Mayor Isko Moreno coordinating the actions with the
MPD.
Earlier last night, Ombudsman Merceditas Gutierrez had a meeting
with Moreno to discuss Mendoza's case that led to his dismissal from
the service. Ombudsman spokesman Jose de Jesus said Gutierrez
gave a "sealed letter" to Moreno to be delivered to Mendoza. De Jesus
did not elaborate on the contents of the letter but said Moreno was
tasked to personally deliver the letter to Mendoza.
MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was
apparently distraught by the slow process of the Ombudsman in
deciding his motion for reconside-ration. He said the PNP-Internal
Affairs Service and the Manila Regional Trial Court had already
dismissed crim-inal cases against him.
The hostage drama began when Mendoza flagged down the Hong
Thai Travel Tourist bus (TVU-799), pretend-ing to hitch a ride.
Margarejo said the bus had just left Fort Santiago in Intramuros when
Mendoza asked the driver to let him get on and ride to Quirino
Grandstand. Upon reaching the Quirino Grandstand, Mendoza an-
nounced to the passengers that they would be taken hostage. "Having
worn his (police) uniform, of course there is no doubt that he already
planned the hostage taking," Margarejo said. - Sandy Araneta, Nestor
Etolle, Delon Porcalla, Amanda Fisher, Cecille Suerte Felipe, Christi-na
Mendez, AP Grandstand Carnage, The Philippine Star, Updated
August 24, 2010 12:00 AM, Val Rodri-guez.4
In a completely separate incident much earlier in time, more
particularly in December of 2003, 28-year-old Juan Paolo Garcia and
23-year-old Ian Carl Garcia were caught in the United States
smuggling $100,000 from Manila by concealing the cash in their
luggage and making false statements to US Customs Officers. The
Garcia brothers pleaded guilty to bulk cash smuggling and agreed to
forfeit the amount in favor of the US Government in exchange for the
dismissal of the rest of the charges against them and for being
sentenced to time served. Inevitably, however, an investigation into the
source of the smuggled currency conducted by US Federal Agents and
the Philippine Government unraveled a scandal of military corruption
and amassed wealth -- the boys' father, Retired Major General Carlos
F. Garcia, former Chief Procurement Officer of the Armed Forces, had
accumulated more than ₱ 300 Million during his active military service.
Plunder and Anti-Money Laundering cases were eventually filed
against Major General Garcia, his wife and their two sons before the
Sandiganbayan.
G.R. No. 196231
Sometime in 2008, a formal charge5 for Grave Misconduct (robbery,
grave threats, robbery extortion and physical injuries) was filed before
the Philippine National Police-National Capital Region (PNP-NCR)
against Manila Police District Senior Inspector (P/S Insp.) Rolando
Mendoza, and four others, namely, Police Inspector Nelson Lagasca,
Senior Police Inspector I Nestor David, Police Officer III Wilson Gavino,
and Police Officer II Roderick Lopena. A similar charge was filed by the
private complainant, Christian M. Kalaw, before the Office of the City
Prosecutor, Manila, docketed as I.S. No. 08E-09512.
On July 24, 2008, while said cases were still pending, the Office of the
Regional Director of the National Police Commission (NPC) turned
over, upon the request of petitioner Emilio A. Gonzales III, all relevant
documents and evidence in relation to said case to the Office of the
Deputy Ombudsman for appropriate administrative adjudication.6
Subsequently, Case No. OMB-P-A-08-0670-H for Grave Misconduct
was lodged against P/S Insp. Rolando Mendoza and his fellow police
officers, who filed their respective verified position papers as directed.
Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was dismissed7
upon a finding that the material allegations made by the complainant
had not been substantiated "by any evidence at all to warrant the
indictment of respondents of the offenses charged." Similarly, the
Internal Affairs Service of the PNP issued a Resolution8 dated October
17, 2008 recommending the dismissal without prejudice of the
administrative case against the same police officers, for failure of the
complainant to appear in three (3) consecutive hearings despite due
notice.
However, on February 16, 2009, upon the recommendation of
petitioner Emilio Gonzales III, a Decision9 in Case No. OMB-P-A-08-
0670-H finding P/S Insp. Rolando Mendoza and his fellow police
officers guilty of Grave Misconduct was approved by the Ombudsman.
The dispositive portion of said Decision reads:
WHEREFORE, it is respectfully recommended that respondents P/S
Insp. ROLANDO DEL ROSARIO MENDOZA and PO3 WILSON
MATIC GAVINO of PRO-ARMM, Camp Brig. Gen. Salipada K.
Pendatun, Parang, Shariff Kabunsuan; P/INSP. NELSON URBANO
LAGASCA, SPO1 NESTOR REYES DAVID and PO2 RODERICK
SALVA LOPEÑA of Manila Police District, Headquarters, United
Nations Avenue, Manila, be meted the penalty of DISMISSAL from the
Service, pursuant to Section 52 (A), Rule IV, Uniform Rules on
Administrative Cases in the Civil Service, with the accessory penalties
of forfeiture of retirement benefits and perpetual disqualification from
reemployment in the government service pursuant to Section 58, Rule
IV of the same Uniform Rules of Administrative Cases in the Civil
Service, for having committed GRAVE MISCONDUCT.
On November 5, 2009, they filed a Motion for Reconsideration10 of the
foregoing Decision, followed by a Supplement to the Motion for
Reconsideration11 on November 19, 2009. On December 14, 2009,
the pleadings mentioned and the records of the case were assigned for
review and recommendation to Graft Investigation and Prosecutor
Officer Dennis L. Garcia, who released a draft Order12 on April 5, 2010
for appropriate action by his immediate superior, Director Eulogio S.
Cecilio, who, in turn, signed and forwarded said Order to petitioner
Gonzalez's office on April 27, 2010. Not more than ten (10) days after,
more particularly on May 6, 2010, petitioner endorsed the Order,
together with the case records, for final approval by Ombudsman
Merceditas N. Gutierrez, in whose office it remained pending for final
review and action when P/S Insp. Mendoza hijacked a bus-load of
foreign tourists on that fateful day of August 23, 2010 in a desperate
attempt to have himself reinstated in the police service.
In the aftermath of the hostage-taking incident, which ended in the
tragic murder of eight HongKong Chinese nationals, the injury of seven
2
others and the death of P/S Insp. Rolando Mendoza, a public outcry
against the blundering of government officials prompted the creation of
the Incident Investigation and Review Committee (IIRC),13 chaired by
Justice Secretary Leila de Lima and vice-chaired by Interior and Local
Government Secretary Jesus Robredo. It was tasked to determine
accountability for the incident through the conduct of public hearings
and executive sessions. However, petitioner, as well as the
Ombudsman herself, refused to participate in the IIRC proceedings on
the assertion that the Office of the Ombudsman is an independent
constitutional body.
Sifting through testimonial and documentary evidence, the IIRC
eventually identified petitioner Gonzales to be among those in whom
culpability must lie. In its Report,14 the IIRC made the following
findings:
Deputy Ombudsman Gonzales committed serious and inexcusable
negligence and gross violation of their own rules of procedure by
allowing Mendoza's motion for reconsideration to languish for more
than nine (9) months without any justification, in violation of the
Ombudsman prescribed rules to resolve motions for reconsideration in
administrative disciplinary cases within five (5) days from submission.
The inaction is gross, considering there is no opposition thereto. The
prolonged inaction precipitated the desperate resort to hostage-taking.
More so, Mendoza's demand for immediate resolution of his motion for
reconsideration is not without legal and compelling bases considering
the following:
(a) PSI Mendoza and four policemen were investigated by the
Ombudsman involving a case for alleged robbery (extortion), grave
threats and physical injuries amounting to grave misconduct allegedly
committed against a certain Christian Kalaw. The same case, however,
was previously dismissed by the Manila City Prosecutors Office for lack
of probable cause and by the PNP-NCR Internal Affairs Service for
failure of the complainant (Christian Kalaw) to submit evidence and
prosecute the case. On the other hand, the case which was filed much
ahead by Mendoza et al. against Christian Kalaw involving the same
incident, was given due course by the City Prosecutors Office.
(b) The Ombudsman exercised jurisdiction over the case based on a
letter issued motu proprio for Deputy Ombudsman Emilio A. Gonzalez
III, directing the PNP-NCR - without citing any reason - to endorse the
case against Mendoza and the arresting policemen to his office for
administrative adjudication, thereby showing undue interest on the
case. He also caused the docketing of the case and named Atty.
Clarence V. Guinto of the PNP-CIDG-NCR, who indorsed the case
records, as the nominal complainant, in lieu of Christian Kalaw. During
the proceedings, Christian Kalaw did not also affirm his complaint-
affidavit with the Ombudsman or submit any position paper as
required.
(c) Subsequently, Mendoza, after serving preventive suspension, was
adjudged liable for grave misconduct by Deputy Ombudsman
Gonzales (duly approved on May 21, 2009) based on the sole and
uncorroborated complaint-affidavit of Christian Kalaw, which was not
previously sustained by the City Prosecutor's Office and the PNP
Internal Affairs Service. From the said Resolution, Mendoza interposed
a timely motion for reconsideration (dated and filed November 5, 2009)
as well as a supplement thereto. No opposition or comment was filed
thereto.
(d) Despite the pending and unresolved motion for reconsideration, the
judgment of dismissal was enforced, thereby abruptly ending
Mendoza's 30 years of service in the PNP with forfeiture of all his
benefits. As a result, Mendoza sought urgent relief by sending several
hand-written letter-requests to the Ombudsman for immediate
resolution of his motion for reconsideration. But his requests fell on
deaf ears.
xxxx
By allowing Mendoza's motion for reconsideration to languish for nine
long (9) months without any justification, Ombudsman Gutierrez and
Deputy Ombudsman Gonzales committed complete and wanton
violation of the Ombudsman prescribed rule to resolve motions for
reconsideration in administrative disciplinary cases within five (5) days
from submission (Sec. 8, Ombudsman Rules of Procedure). The
inaction is gross, there being no opposition to the motion for
reconsideration.
Besides, the Ombudsman, without first resolving the motion for
reconsideration, arbitrarily enforced the judgment of dismissal and
ignored the intervening requests for immediate resolution, thereby
rendering the inaction even more inexcusable and unjust as to amount
to gross negligence and grave misconduct.
SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales
committed serious disregard of due process, manifest injustice and
oppression in failing to provisionally suspend the further
implementation of the judgment of dismissal against Mendoza pending
disposition of his unresolved motion for reconsideration.
By enforcing the judgment of dismissal without resolving the motion for
reconsideration for over nine months, the two Ombudsman officials
acted with arbitrariness and without regard to due process and the
constitutional right of an accused to the speedy disposition of his case.
As long as his motion for reconsideration remained pending and
unresolved, Mendoza was also effectively deprived of the right to avail
of the ordinary course of appeal or review to challenge the judgment of
dismissal before the higher courts and seek a temporary restraining
order to prevent the further execution thereof.
As such, if the Ombudsman cannot resolve with dispatch the motion for
reconsideration, it should have provisionally suspended the further
enforcement of the judgment of dismissal without prejudice to its re-
implementation if the reconsideration is eventually denied. Otherwise,
the Ombudsman will benefit from its own inaction. Besides, the litigant
is entitled to a stay of the execution pending resolution of his motion for
reconsideration. Until the motion for reconsideration is denied, the
adjudication process before the Ombudsman cannot be considered as
completely finished and, hence, the judgment is not yet ripe for
execution.
xxxx
When the two Ombudsman officials received Mendoza's demand for
the release of the final order resolving his motion for reconsideration,
they should have performed their duty by resolving the reconsideration
that same day since it was already pending for nine months and the
prescribed period for its resolution is only five days. Or if they cannot
resolve it that same day, then they should have acted decisively by
issuing an order provisionally suspending the further enforcement of
the judgment of dismissal subject to revocation once the
reconsideration is denied and without prejudice to the arrest and
prosecution of Mendoza for the hostage-taking. Had they done so, the
crisis may have ended peacefully, without necessarily compromising
the integrity of the institution. After all, as relayed to the negotiators,
Mendoza did express willingness to take full responsibility for the
hostage-taking if his demand for release of the final decision or
reinstatement was met.
But instead of acting decisively, the two Ombudsman officials merely
offered to review a pending motion for review of the case, thereby
prolonging their inaction and aggravating the situation. As expected,
Mendoza - who previously berated Deputy Gonzales for allegedly
demanding Php150,000 in exchange for favorably resolving the motion
for reconsideration - rejected and branded as trash ("basura") the
Ombudsman [sic] letter promising review, triggering the collapse of the
negotiations. To prevent the situation from getting out of hand, the
negotiators sought the alternative option of securing before the PNP-
NCRPO an order for Mendoza's provisional reinstatement pending
resolution of the motion for reconsideration. Unfortunately, it was
already too late. But had the Ombudsman officials performed their duty
under the law and acted decisively, the entire crisis may have ended
differently.
The IIRC recommended that its findings with respect to petitioner
Gonzales be referred to the Office of the President (OP) for further
determination of possible administrative offenses and for the initiation
of the proper administrative proceedings.
On October 15, 2010, the OP instituted a Formal Charge15 against
petitioner Gonzales for Gross Neglect of Duty and/or Inefficiency in the
Performance of Official Duty under Rule XIV, Section 22 of the
Omnibus Rules Implementing Book V of E.O. No. 292 and other
pertinent Civil
Service Laws, rules and regulations, and for Misconduct in Office
under Section 3 of the Anti-Graft and Corrupt Practices Act.16
Petitioner filed his Answer17 thereto in due time.
Shortly after the filing by the OP of the administrative case against
petitioner, a complaint dated October 29, 2010 was filed by Acting
Assistant Ombudsman Joselito P. Fangon before the Internal Affairs
Board of the Office of the Ombudsman charging petitioner with "directly
or indirectly requesting or receiving any gift, present, share,
percentage, or benefit, for himself or for any other person, in
connection with any contract or transaction between the Government
and any other party, wherein the public officer in his official capacity
has to intervene under the law" under Section 3(b) of the Anti-Graft and
Corrupt Practices Act, and also, with solicitation or acceptance of gifts
under Section 7(d) of the Code of Conduct and Ethical Standards.18 In
a Joint Resolution19 dated February 17, 2011, which was approved by
Ombudsman Ma. Merceditas N. Gutierrez, the complaint was
dismissed, as follows:
WHEREFORE, premises considered, finding no probable cause to
indict respondent Emilio A. Gonzales III for violations of Section 3(b) of
R.A. No. 3019 and Section 7(d) of R.A. No. 6713, the complaint is
hereby be [sic] DISMISSED.
Further, finding no sufficient evidence to hold respondent
administratively liable for Misconduct, the same is likewise
DISMISSED.
3
Meanwhile, the OP notified20 petitioner that a Preliminary Clarificatory
Conference relative to the administrative charge against him was to be
conducted at the Office of the Deputy Executive Secretary for Legal
Affairs (ODESLA) on February 8, 2011. Petitioner Gonzales alleged,21
however, that on February 4, 2011, he heard the news that the OP had
announced his suspension for one year due to his delay in the
disposition of P/S Insp. Mendoza's motion for reconsideration. Hence,
believing that the OP had already prejudged his case and that any
proceeding before it would simply be a charade, petitioner no longer
attended the scheduled clarificatory conference. Instead, he filed an
Objection to Proceedings22 on February 7, 2011. Despite petitioner's
absence, however, the OP pushed through with the proceedings and,
on March 31, 2011, rendered the assailed Decision,23 the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing, this Office finds Deputy
Ombudsman Emilio A. Gonzales III guilty of Gross Neglect of Duty and
Grave Misconduct constituting betrayal of public trust, and hereby
meted out the penalty of DISMISSAL from service.
SO ORDERED.
Hence, the petition.
G.R. No. 196232
In April of 2005, the Acting Deputy Special Prosecutor of the Office of
the Ombudsman charged Major General Carlos F. Garcia, his wife
Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo Garcia and
Timothy Mark Garcia and several unknown persons with Plunder
(Criminal Case No. 28107) and Money Laundering (Criminal Case No.
SB09CRM0194) before the Sandiganbayan.
On January 7, 2010, the Sandiganbayan denied Major General
Garcia's urgent petition for bail holding that strong prosecution
evidence militated against the grant of bail. On March 16, 2010,
however, the government, represented by petitioner, Special
Prosecutor Wendell Barreras-Sulit ("Barreras-Sulit") and her
prosecutorial staff sought the Sandiganbayan's approval of a Plea
Bargaining Agreement (hereinafter referred to as "PLEBARA") entered
into with the accused. On May 4, 2010, the Sandiganbayan issued a
Resolution finding the change of plea warranted and the PLEBARA
compliant with jurisprudential guidelines.
Outraged by the backroom deal that could allow Major General Garcia
to get off the hook with nothing but a slap on the hand notwithstanding
the prosecution's apparently strong evidence of his culpability for
serious public offenses, the House of Representatives' Committee on
Justice conducted public hearings on the PLEBARA. At the conclusion
of these public hearings, the Committee on Justice passed and
adopted Committee Resolution No. 3,24 recommending to the
President the dismissal of petitioner Barreras-Sulit from the service and
the filing of appropriate charges against her Deputies and Assistants
before the appropriate government office for having committed acts
and/or omissions tantamount to culpable violations of the Constitution
and betrayal of public trust, which are violations under the Anti-Graft
and Corrupt Practices Act and grounds for removal from office under
the Ombudsman Act.
The Office of the President initiated OP-DC-Case No. 11-B-003 against
petitioner Barreras-Sulit. In her written explanation, petitioner raised
the defenses of prematurity and the lack of jurisdiction of the OP with
respect to the administrative disciplinary proceeding against her. The
OP, however, still proceeded with the case, setting it for preliminary
investigation on April 15, 2011.
Hence, the petition.
The Issues
In G.R. No. 196231, petitioner Gonzales raises the following grounds,
to wit:
(A)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH
THE OTHER INDIVIDUAL RESPONDENTS, HAS NO
CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO
SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION
AND TO THEREAFTER ORDER HIS REMOVAL AS DEPUTY
OMBUDSMAN.
(B)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH
THE OTHER INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND
RENDERED ITS DECISION IN VIOLATION OF PETITIONER'S
RIGHT TO DUE PROCESS.
(C)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH
THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER COMMITTED
DELAY IN THE DISPOSITION OF MENDOZA'S MOTION FOR
RECONSIDERATION.
(D)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH
THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE
INTEREST IN MENDOZA'S CASE.
(E)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH
THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING
THE RESOLUTION ON MENDOZA'S MOTION FOR
RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S
DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS.
(F)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH
THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL
EVIDENCE TO SHOW THAT PETITIONER DEMANDED A BRIBE
FROM MENDOZA.25
On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses
for the Court the question -
AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING
TO TAKE ADMINISTRATIVE DISCIPLINARY PROCEEDING
AGAINST PETITIONER BE LAWFUL AND JUSTIFIABLE?26
Re-stated, the primordial question in these two petitions is whether the
Office of the President has jurisdiction to exercise administrative
disciplinary power over a Deputy Ombudsman and a Special
Prosecutor who belong to the constitutionally-created Office of the
Ombudsman.
The Court's Ruling
Short of claiming themselves immune from the ordinary means of
removal, petitioners asseverate that the President has no disciplinary
jurisdiction over them considering that the Office of the Ombudsman to
which they belong is clothed with constitutional independence and that
they, as Deputy Ombudsman and Special Prosecutor therein,
necessarily bear the constitutional attributes of said office.
The Court is not convinced.
The Ombudsman's administrative
disciplinary power over a Deputy
Ombudsman and Special Prose-cutor is not exclusive.
It is true that the authority of the Office of the Ombudsman to conduct
administrative investigations proceeds from its constitutional mandate
to be an effective protector of the people against inept and corrupt
government officers and employees,27 and is subsumed under the
broad powers "explicitly conferred" upon it by the 1987 Constitution
and R.A. No. 6770.28
The ombudsman traces its origins to the primitive legal order of
Germanic tribes. The Swedish term, which literally means "agent" or
"representative," communicates the concept that has been carried on
into the creation of the modern-day ombudsman, that is, someone who
acts as a neutral representative of ordinary citizens against
government abuses.29 This idea of a people's protector was first
institutionalized in the Philippines under the 1973 Constitution with the
creation of the Tanodbayan, which wielded the twin powers of
investigation and prosecution. Section 6, Article XIII of the 1973
Constitution provided thus:
Sec. 6. The Batasang Pambansa shall create an office of the
Ombudsman, to be known as Tanodbayan, which shall receive and
investigate complaints relative to public office, including those in
government-owned or controlled corporations, make appropriate
recommendations, and in case of failure of justice as defined by law,
file and prosecute the corresponding criminal, civil, or administrative
case before the proper court or body.
The framers of the 1987 Constitution later envisioned a more effective
ombudsman vested with authority to "act in a quick, inexpensive and
effective manner on complaints against administrative officials", and to
function purely with the "prestige and persuasive powers of his office"
4
in correcting improprieties, inefficiencies and corruption in government
freed from the hampering effects of prosecutorial duties.30
Accordingly, Section 13, Article XI of the 1987 Constitution enumerates
the following powers, functions, and duties of the Office of the
Ombudsman, viz:
(1) Investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such
act or omission appears to be illegal, unjust, improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public official or
employee of the Government, or any subdivision, agency or
instrumentality thereof, as well as of any government-owned or
controlled corporation with original charter, to perform and expedite
any act or duty required by law, or to stop, prevent, and correct any
abuse or impropriety in the performance of duties.
(3) Direct the officer concerned to take appropriate action against a
public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith.
(4) Direct the officer concerned, in any appropriate case, and subject
to such limitations as may be provided by law, to furnish it with copies
of documents relating to contracts or transactions entered into by his
office involving the disbursement or use of public funds or properties,
and report any irregularity to the Commission on Audit for appropriate
action.
(5) Request any government agency for assistance and information
necessary in the discharge of its responsibilities, and to examine, if
necessary, pertinent records and documents.
(6) Publicize matters covered by its investigation when
circumstances so warrant and with due prudence.
(7) Determine the causes of inefficiency, red tape, mismanagement,
fraud, and corruption in the Government and make recommendations
for their elimination and the observance of high standards of ethics and
efficiency.
(8) Promulgate its rules of procedure and exercise such other powers
or perform such functions or duties as may be provided by law.31
Congress thereafter passed, on November 17, 1989, Republic Act No.
6770, the Ombudsman Act of 1989, to shore up the Ombudsman's
institutional strength by granting it "full administrative disciplinary power
over public officials and employees,"32 as follows:
Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. - The
Office of the Ombudsman shall have disciplinary authority over all
elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of the
Cabinet, local government, government-owned or controlled
corporations and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress, and the
Judiciary.(Emphasis supplied)
In the exercise of such full administrative disciplinary authority, the
Office of the Ombudsman was explicitly conferred the statutory power
to conduct administrative investigations under Section 19 of the same
law, thus:
Sec. 19. Administrative complaints. - The Ombudsman shall act on all
complaints relating, but not limited, to acts or omissions which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency's functions,
though in accordance with law;
4. Proceed from a mistake of law or an arbitrary ascertainment of facts;
5. Are in the exercise of discretionary powers but for an improper
purpose; or
6. Are otherwise irregular, immoral or devoid of justification.
While the Ombudsman's authority to discipline administratively is
extensive and covers all government officials, whether appointive or
elective, with the exception only of those officials removable by
impeachment, the members of congress and the judiciary, such
authority is by no means exclusive. Petitioners cannot insist that they
should be solely and directly subject to the disciplinary authority of the
Ombudsman. For, while Section 21 declares the Ombudsman's
disciplinary authority over all government officials, Section 8(2), on the
other hand, grants the President express power of removal over a
Deputy Ombudsman and a Special Prosecutor. Thus:
Section 8. Removal; Filling of Vacancy.-
xxxx
(2) A Deputy or the Special Prosecutor, may be removed from office by
the President for any of the grounds provided for the removal of the
Ombudsman, and after due process.
It is a basic canon of statutory construction that in interpreting a
statute, care should be taken that every part thereof be given effect, on
the theory that it was enacted as an integrated measure and not as a
hodge-podge of conflicting provisions. A construction that would render
a provision inoperative should be avoided; instead, apparently
inconsistent provisions should be reconciled whenever possible as
parts of a coordinated and harmonious whole.33 Otherwise stated, the
law must not be read in truncated parts. Every part thereof must be
considered together with the other parts, and kept subservient to the
general intent of the whole enactment.34
A harmonious construction of these two apparently conflicting
provisions in R.A. No. 6770 leads to the inevitable conclusion that
Congress had intended the Ombudsman and the President to exercise
concurrent disciplinary jurisdiction over petitioners as Deputy
Ombudsman and Special
Prosecutor, respectively. This sharing of authority goes into the
wisdom of the legislature, which prerogative falls beyond the pale of
judicial inquiry. The Congressional deliberations on this matter are
quite insightful, viz:
x x x Senator Angara explained that the phrase was added to highlight
the fact that the Deputy Tanodbayan may only be removed for cause
and after due process. He added that the President alone has the
power to remove the Deputy Tanodbayan.
Reacting thereto, Senator Guingona observed that this might impair
the independence of the Tanodbayan and suggested that the
procedural removal of the Deputy Tanodbayan...; and that he can be
removed not by the President but by the Ombudsman.
However, the Chair expressed apprehension that the Ombudsman and
the Deputy Ombudsman may try to protect one another. The Chair
suggested the substitution of the phrase "after due process" with the
words after due notice and hearing with the President as the ultimate
authority.
Senator Guingona contended, however, that the Constitution provides
for an independent Office of the Tanodbayan, and to allow the
Executive to have disciplinary powers over the Tanodbayan Deputies
would be an encroachment on the independence of the Tanodbayan.
Replying thereto, Senator Angara stated that originally, he was not
averse to the proposal, however, considering the Chair's observation
that vesting such authority upon the Tanodbayan itself could result in
mutual protection, it is necessary that an outside official should be
vested with such authority to effect a check and balance.35
Indubitably, the manifest intent of Congress in enacting both provisions
- Section 8(2) and Section 21 - in the same Organic Act was to provide
for an external authority, through the person of the President, that
would exercise the power of administrative discipline over the Deputy
Ombudsman and Special Prosecutor without in the least diminishing
the constitutional and plenary authority of the Ombudsman over all
government officials and employees. Such legislative design is simply
a measure of "check and balance" intended to address the lawmakers'
real and valid concern that the Ombudsman and his Deputy may try to
protect one another from administrative liabilities.
This would not be the first instance that the Office of the President has
locked horns with the Ombudsman on the matter of disciplinary
jurisdiction. An earlier conflict had been settled in favor of shared
authority in Hagad v. Gozo Dadole.36 In said case, the Mayor and
Vice-Mayor of Mandaue City, and a member of the Sangguniang
Panlungsod, were charged before the Office of the Deputy
Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No.
6713, and the Revised Penal Code. The pivotal issue raised therein
was whether the Ombudsman had been divested of his authority to
conduct administrative investigations over said local elective officials
by virtue of the subsequent enactment of the Local Government Code
of 1991 (R.A. No. 7160), the pertinent provision of which states:
Sec. 61. Form and Filing of Administrative Complaints.- A verified
complaint against any erring local elective official shall be prepared as
follows:
(a) A complaint against any elective official of a province, a highly
urbanized city, an independent component city or component city shall
be filed before the Office of the President.
The Court resolved said issue in the negative, upholding the
ratiocination of the Solicitor General that R.A. No. 7160 should be
viewed as having conferred on the Office of the President, but not on
an exclusive basis, disciplinary authority over local elective officials.
Despite the fact that R.A. No. 7160 was the more recent expression of
5
legislative will, no repeal of pertinent provisions in the Ombudsman Act
was inferred therefrom. Thus said the Court:
Indeed, there is nothing in the Local Government Code to indicate that
it has repealed, whether expressly or impliedly, the pertinent provisions
of the Ombudsman Act. The two statutes on the specific matter in
question are not so inconsistent, let alone irreconcilable, as to compel
us to only uphold one and strike down the other. Well settled is the rule
that repeals of laws by implication are not favored, and that courts
must generally assume their congruent application. The two laws must
be absolutely incompatible, and a clear finding thereof must surface,
before the inference of implied repeal may be drawn. The rule is
expressed in the maxim, interpretare et concordare legibus est optimus
interpretendi, i.e., every statute must be so interpreted and brought into
accord with other laws as to form a uniform system of jurisprudence.
The fundament is that the legislature should be presumed to have
known the existing laws on the subject and not to have enacted
conflicting statutes. Hence, all doubts must be resolved against any
implied repeal, and all efforts should be exerted in order to harmonize
and give effect to all laws on the subject.37
While Hagad v. Gozo Dadole38 upheld the plenary power of the Office
of the Ombudsman to discipline elective officials over the same
disciplinary authority of the President under R.A. No. 7160, the more
recent case of the Office of the Ombudsman v. Delijero39 tempered
the exercise by the Ombudsman of such plenary power invoking
Section 23(2)40 of R.A. No. 6770, which gives the Ombudsman the
option to "refer certain complaints to the proper disciplinary authority
for the institution of appropriate administrative proceedings against
erring public officers or employees." The Court underscored therein the
clear legislative intent of imposing "a standard and a separate set of
procedural requirements in connection with administrative proceedings
involving public school teachers"41 with the enactment of R.A. No.
4670, otherwise known as "The Magna Carta for Public School
Teachers." It thus declared that, while the Ombudsman's administrative
disciplinary authority over a public school teacher is concurrent with the
proper investigating committee of the Department of Education, it
would have been more prudent under the circumstances for the
Ombudsman to have referred to the DECS the complaint against the
public school teacher.
Unquestionably, the Ombudsman is possessed of jurisdiction to
discipline his own people and mete out administrative sanctions upon
them, including the extreme penalty of dismissal from the service.
However, it is equally without question that the President has
concurrent authority with respect to removal from office of the Deputy
Ombudsman and Special Prosecutor, albeit under specified conditions.
Considering the principles attending concurrence of jurisdiction where
the Office of the President was the first to initiate a case against
petitioner Gonzales, prudence should have prompted the Ombudsman
to desist from proceeding separately against petitioner through its
Internal Affairs Board, and to defer instead to the President's
assumption of authority, especially when the administrative charge
involved "demanding and soliciting a sum of money" which constitutes
either graft and corruption or bribery, both of which are grounds
reserved for the President's exercise of his authority to remove a
Deputy Ombudsman.
In any case, assuming that the Ombudsman's Internal Affairs Board
properly conducted a subsequent and parallel administrative action
against petitioner, its earlier dismissal of the charge of graft and
corruption against petitioner could not have the effect of preventing the
Office of the President from proceeding against petitioner upon the
same ground of graft and corruption. After all, the doctrine of res
judicata applies only to judicial or quasi-judicial proceedings, not to the
exercise of administrative powers.42 In Montemayor v. Bundalian,43
the Court sustained the President's dismissal from service of a
Regional Director of the Department of Public Works and Highways
(DPWH) who was found liable for unexplained wealth upon
investigation by the now defunct Philippine Commission Against Graft
and Corruption (PCAGC). The Court categorically ruled therein that the
prior dismissal by the Ombudsman of similar charges against said
official did not operate as res judicata in the PCAGC case.
By granting express statutory
power to the President to remove
a Deputy Ombudsman and a
Special Prosecutor, Congress
merely filled an obvious gap in
the law.
Section 9, Article XI of the 1987 Constitution confers upon the
President the power to appoint the Ombudsman and his Deputies, viz:
Section 9. The Ombudsman and his Deputies shall be appointed by
the President from a list of at least six nominees prepared by the
Judicial and Bar Council, and from a list of three nominees for every
vacancy thereafter. Such appointments shall require no confirmation.
All vacancies shall be filled within three months after they occur.
While the removal of the Ombudsman himself is also expressly
provided for in the Constitution, which is by impeachment under
Section 244 of the same Article, there is, however, no constitutional
provision similarly dealing with the removal from office of a Deputy
Ombudsman, or a Special Prosecutor, for that matter. By enacting
Section 8(2) of R.A. 6770, Congress simply filled a gap in the law
without running afoul of any provision in the Constitution or existing
statutes. In fact, the Constitution itself, under Section 2, authorizes
Congress to provide for the removal of all other public officers,
including the Deputy Ombudsman and Special Prosecutor, who are not
subject to impeachment.
That the Deputies of the Ombudsman were intentionally excluded from
the enumeration of impeachable officials is clear from the following
deliberations45 of the Constitutional Commission, thus:
MR. REGALADO. Yes, thank you. On Section 10, regarding the
Ombudsman, there has been concern aired by Commissioner Rodrigo
about who will see to it that the Ombudsman will perform his duties
because he is something like a guardian of the government. This
recalls the statement of Juvenal that while the Ombudsman is the
guardian of the people, "Quis custodiet ipsos custodies", who will
guard the guardians? I understand here that the Ombudsman who has
the rank of a chairman of a constitutional commission is also
removable only by impeachment.
MR. ROMULO. That is the intention, Madam President.
MR. REGALADO. Only the Ombudsman?
MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies, because I am concerned with
the phrase "have the rank of". We know, for instance, that the City
Fiscal of Manila has the rank of a justice of the Intermediate Appellate
Court, and yet he is not a part of the judiciary. So I think we should
clarify that also and read our discussions into the Record for purposes
of the Commission and the Committee.46
xxx
THE PRESIDENT. The purpose of the amendment of Commissioner
Davide is not just to include the Ombudsman among those officials
who have to be removed from office only onimpeachment. Is that right?
MR. DAVIDE. Yes, Madam President.
MR. RODRIGO. Before we vote on the amendment, may I ask a
question?
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. The Ombudsman, is this only one man?
MR. DAVIDE. Only one man.
MR. RODRIGO. Not including his deputies.
MR. MONSOD. No.47 (Emphasis supplied)
The Power of the President to
Remove a Deputy Ombudsman
and a Special Prosecutor is
Implied from his Power to
Appoint.
Under the doctrine of implication, the power to appoint carries with it
the power to remove.48 As a general rule, therefore, all officers
appointed by the President are also removable by him.49 The
exception to this is when the law expressly provides otherwise - that is,
when the power to remove is expressly vested in an office or authority
other than the appointing power. In some cases, the Constitution
expressly separates the power to remove from the President's power to
appoint. Under Section 9, Article VIII of the 1987 Constitution, the
Members of the Supreme Court and judges of lower courts shall be
appointed by the President. However, Members of the Supreme Court
may be removed after impeachment proceedings initiated by Congress
(Section 2, Article XI), while judges of lower courts may be removed
only by the Supreme Court by virtue of its administrative supervision
over all its personnel (Sections 6 and 11, Article VIII). The
Chairpersons and Commissioners of the Civil Service Commission
Section 1(2), Article IX(B), the Commission on Elections Section 1(2),
Article IX(C), and the Commission on Audit Section 1(2), Article IX(D)
shall likewise be appointed by the President, but they may be removed
only by impeachment (Section 2, Article XI). As priorly stated, the
Ombudsman himself shall be appointed by the President (Section 9,
Article XI) but may also be removed only by impeachment (Section 2,
Article XI).
In giving the President the power to remove a Deputy Ombudsman and
Special Prosecutor, Congress simply laid down in express terms an
authority that is already implied from the President's constitutional
authority to appoint the aforesaid officials in the Office of the
Ombudsman.
6
The Office of the Ombudsman is charged with monumental tasks that
have been generally categorized into investigatory power, prosecutorial
power, public assistance, authority to inquire and obtain information
and the function to adopt, institute and implement preventive
measures.50 In order to ensure the effectiveness of his constitutional
role, the Ombudsman was provided with an over-all deputy as well as
a deputy each for Luzon, Visayas and Mindanao. However, well into
the deliberations of the Constitutional Commission, a provision for the
appointment of a separate deputy for the military establishment was
necessitated by Commissioner Ople's lament against the rise within the
armed forces of "fraternal associations outside the chain of command"
which have become the common soldiers' "informal grievance
machinery" against injustice, corruption and neglect in the uniformed
service,51 thus:
In our own Philippine Armed Forces, there has arisen in recent years a
type of fraternal association outside the chain of command proposing
reformist objectives. They constitute, in fact, an informal grievance
machinery against injustices to the rank and file soldiery and perceive
graft in higher rank and neglect of the needs of troops in combat
zones. The Reform the Armed Forces Movement of RAM has kept
precincts for pushing logistics to the field, the implied accusation being
that most of the resources are used up in Manila instead of sent to
soldiers in the field. The Guardians, the El Diablo and other
organizations dominated by enlisted men function, more or less, as
grievance collectors and as mutual aid societies.
This proposed amendment merely seeks to extend the office of the
Ombudsman to the military establishment, just as it champions the
common people against bureaucratic indifference. The Ombudsman
can designate a deputy to help the ordinary foot soldier get through
with his grievance to higher authorities. This deputy will, of course work
in close cooperation with the Minister of National Defense because of
the necessity to maintain the integrity of the chain of command.
Ordinary soldiers, when they know they can turn to a military
Ombudsman for their complaints, may not have to fall back on their
own informal devices to obtain redress for their grievances. The
Ombudsman will help raise troop morale in accordance with a major
professed goal of the President and the military authorities themselves.
xxx
The add-on now forms part of Section 5, Article XI which reads as
follows:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one over-all Deputy and at least one Deputy each for
Luzon, Visayas and Mindanao. A separate deputy for the military
establishment shall likewise be appointed. (Emphasis supplied)
The integrity and effectiveness of the Deputy Ombudsman for the
MOLEO as a military watchdog looking into abuses and irregularities
that affect the general morale and professionalism in the military is
certainly of primordial importance in relation to the President's own role
asCommander-in-Chief of the Armed Forces. It would not be
incongruous for Congress, therefore, to grant the President concurrent
disciplinary authority over the Deputy Ombudsman for the military and
other law enforcement offices.
Granting the President the Power
to Remove a Deputy Ombudsman
does not Diminish the
Independence of the Office of the
Ombudsman.
The claim that Section 8(2) of R.A. No. 6770 granting the President the
power to remove a Deputy Ombudsman from office totally frustrates, if
not resultantly negates the independence of the Office of the
Ombudsman is tenuous. The independence which the Office of the
Ombudsman is vested with was intended to free it from political
considerations in pursuing its constitutional mandate to be a protector
of the people. What the Constitution secures for the Office of the
Ombudsman is, essentially, political independence. This means
nothing more than that "the terms of office, the salary, the
appointments and discipline of all persons under the office" are
"reasonably insulated from the whims of politicians."52 And so it was
that Section 5, Article XI of the 1987 Constitution had declared the
creation of the independent Office of the Ombudsman, composed of
the Ombudsman and his Deputies, who are described as "protectors of
the people" and constitutionally mandated to act promptly on
complaints filed in any form or manner against public officials or
employees of the Government Section 12, Article XI. Pertinent
provisions under Article XI prescribes a term of office of seven years
without reappointment Section 11, prohibits a decrease in salaries
during the term of office Section 10, provides strict qualifications for the
office Section 8, grants fiscal autonomy Section 14 and ensures the
exercise of constitutional functions Section 12 and 13. The cloak of
independence is meant to build up the Office of the Ombudsman's
institutional strength to effectively function as official critic, mobilizer of
government, constitutional watchdog53 and protector of the people. It
certainly cannot be made to extend to wrongdoings and permit the
unbridled acts of its officials to escape administrative discipline.
Being aware of the constitutional imperative of shielding the Office of
the Ombudsman from political influences and the discretionary acts of
the executive, Congress laid down two restrictions on the President's
exercise of such power of removal over a Deputy Ombudsman,
namely: (1) that the removal of the Deputy Ombudsman must be for
any of the grounds provided for the removal of the Ombudsman and
(2) that there must be observance of due process. Reiterating the
grounds for impeachment laid down in Section 2, Article XI of the 1987
Constitution, paragraph 1 of Section 8 of R.A. No. 6770 states that the
Deputy Ombudsman may be removed from office for the same
grounds that the Ombudsman may be removed through impeachment,
namely, "culpable violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust." Thus, it
cannot be rightly said that giving the President the power to remove a
Deputy Ombudsman, or a Special Prosecutor for that matter, would
diminish or compromise the constitutional independence of the Office
of the Ombudsman. It is, precisely, a measure of protection of the
independence of the Ombudsman's Deputies and Special Prosecutor
in the discharge of their duties that their removal can only be had on
grounds provided by law.
In Espinosa v. Office of the Ombudsman,54 the Court elucidated on
the nature of the Ombudsman's independence in this wise -
The prosecution of offenses committed by public officers is vested in
the Office of the Ombudsman. To insulate the Office from outside
pressure and improper influence, the Constitution as well as RA 6770
has endowed it with a wide latitude of investigatory and prosecutory
powers virtually free from legislative, executive or judicial intervention.
This Court consistently refrains from interfering with the exercise of its
powers, and respects the initiative and independence inherent in the
Ombudsman who, 'beholden to no one, acts as the champion of the
people and the preserver of the integrity of public service.
Petitioner Gonzales may not be
removed from office where the
questioned acts, falling short of
constitutional standards, do not
constitute betrayal of public trust.
Having now settled the question concerning the validity of the
President's power to remove the Deputy Ombudsman and Special
Prosecutor, we now go to the substance of the administrative findings
in OP Case No. 10-J-460 which led to the dismissal of herein
petitioner, Deputy Ombudsman Emilio A. Gonzales, III.
At the outset, the Court finds no cause for petitioner Gonzales to
complain simply because the OP proceeded with the administrative
case against him despite his non-attendance thereat. Petitioner was
admittedly able to file an Answer in which he had interposed his
defenses to the formal charge against him. Due process is satisfied
when a person is notified of the charge against him and given an
opportunity to explain or defend himself. In administrative proceedings,
the filing of charges and giving reasonable opportunity for the person
so charged to answer the accusations against him constitute the
minimum requirements of due process.55 Due process is simply
having the opportunity to explain one's side, or an opportunity to seek
a reconsideration of the action or ruling complained of.56
The essence of due process is that a party is afforded reasonable
opportunity to be heard and to submit any evidence he may have in
support of his defense.57 Mere opportunity to be heard is sufficient. As
long as petitioner was given the opportunity to explain his side and
present evidence, the requirements of due process are satisfactorily
complied with because what the law abhors is an absolute lack of
opportunity to be heard.58 Besides, petitioner only has himself to
blame for limiting his defense through the filing of an Answer. He had
squandered a subsequent opportunity to elucidate upon his pleaded
defenses by adamantly refusing to attend the scheduled Clarificatory
Conference despite notice. The OP recounted as follows -
It bears noting that respondent Deputy Ombudsman Gonzalez was
given two separate opportunities to explain his side and answer the
Formal Charge against him.
In the first instance, respondent was given the opportunity to submit his
answer together with his documentary evidence, which opportunity
respondent actually availed of. In the second instance, this Office
called a Clarificatory Conference on 8 February 2011 pursuant to
respondent's express election of a formal investigation. Despite due
notice, however, respondent Deputy Ombudsman refused to appear
for said conference, interposing an objection based on the unfounded
notion that this Office has prejudged the instant case. Respondent
having been given actual and reasonable opportunity to explain or
defend himself in due course, the requirement of due process has
been satisfied.59
In administrative proceedings, the quantum of proof necessary for a
finding of guilt is substantial evidence,60 which is more than a mere
scintilla and means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.61 The fact,
therefore, that petitioner later refused to participate in the hearings
before the OP is not a hindrance to a finding of his culpability based on
7
substantial evidence, which only requires that a decision must "have
something upon which it is based."62
Factual findings of administrative bodies are controlling when
supported by substantial evidence.63 The OP's pronouncement of
administrative accountability against petitioner and the imposition upon
him of the corresponding penalty of removal from office was based on
the finding of gross neglect of duty and grave misconduct in office
amounting to a betrayal of public trust, which is a constitutional ground
for the removal by impeachment of the Ombudsman (Section 2, Article
XI, 1987 Constitution), and a statutory ground for the President to
remove from office a Deputy Ombudsman and a Special Prosecutor
Section 8(2) of the Ombudsman Act.
The OP held that petitioner's want of care and wrongful conduct
consisted of his unexplained action in directing the PNP-NCR to
elevate P/S Insp. Mendoza's case records to his office; his failure to
verify the basis for requesting the Ombudsman to take over the case;
his pronouncement of administrative liability and imposition of the
extreme penalty of dismissal on P/S Insp. Mendoza based upon an
unverified complaint-affidavit; his inordinate haste in implementing P/S
Insp. Mendoza's dismissal notwithstanding the latter's non-receipt of
his copy of the Decision and the subsequent filing of a motion for
reconsideration; and his apparent unconcern that the pendency of the
motion for reconsideration for more than five months had deprived P/S
Insp. Mendoza of available remedies against the immediate
implementation of the Decision dismissing him from the service.
Thus, taking into consideration the factual determinations of the IIRC,
the allegations and evidence of petitioner in his Answer as well as
other documentary evidence, the OP concluded that: (1) petitioner
failed to supervise his subordinates to act with dispatch on the draft
resolution of P/S Insp. Mendoza's motion for reconsideration and
thereby caused undue prejudice to P/S Insp. Mendoza by effectively
depriving the latter of the right to challenge the dismissal before the
courts and prevent its immediate execution, and (2) petitioner showed
undue interest by having P/S Insp. Mendoza's case endorsed to the
Office of the Ombudsman and resolving the same against P/S Insp.
Mendoza on the basis of the unverified complaint-affidavit of the
alleged victim Christian Kalaw.
The invariable rule is that administrative decisions in matters within the
executive jurisdiction can only be set aside on proof of gross abuse of
discretion, fraud, or error of law.64 In the instant case, while the
evidence may show some amount of wrongdoing on the part of
petitioner, the Court seriously doubts the correctness of the OP's
conclusion that the imputed acts amount to gross neglect of duty and
grave misconduct constitutive of betrayal of public trust. To say that
petitioner's offenses, as they factually appear, weigh heavily enough to
constitute betrayal of public trust would be to ignore the significance of
the legislature's intent in prescribing the removal of the Deputy
Ombudsman or the Special Prosecutor for causes that, theretofore,
had been reserved only for the most serious violations that justify the
removal by impeachment of the highest officials of the land.
Would every negligent act or misconduct in the performance of a
Deputy Ombudsman's duties constitute betrayal of public trust
warranting immediate removal from office? The question calls for a
deeper, circumspective look at the nature of the grounds for the
removal of a Deputy Ombudsman and a Special Prosecutor vis-a-vis
common administrative offenses.
Betrayal of public trust is a new ground for impeachment under the
1987 Constitution added to the existing grounds of culpable violation of
the Constitution, treason, bribery, graft and corruption and other high
crimes. While it was deemed broad enough to cover any violation of
the oath of office,65 the impreciseness of its definition also created
apprehension that "such an overarching standard may be too broad
and may be subject to abuse and arbitrary exercise by the
legislature."66 Indeed, the catch-all phrase betrayal of public trust that
referred to "all acts not punishable by statutes as penal offenses but,
nonetheless, render the officer unfit to continue in office"67 could be
easily utilized for every conceivable misconduct or negligence in office.
However, deliberating on some workable standard by which the ground
could be reasonably interpreted, the Constitutional Commission
recognized that human error and good faith precluded an adverse
conclusion.
MR. VILLACORTA: x x x One last matter with respect to the use of the
words "betrayal of public trust" as embodying a ground for
impeachment that has been raised by the Honorable Regalado. I am
not a lawyer so I can anticipate the difficulties that a layman may
encounter in understanding this provision and also the possible abuses
that the legislature can commit in interpreting this phrase. It is to be
noted that this ground was also suggested in the 1971 Constitutional
Convention. A review of the Journals of that Convention will show that
it was not included; it was construed as encompassing acts which are
just short of being criminal but constitute gross faithlessness against
public trust, tyrannical abuse of power, inexcusable negligence of duty,
favoritism, and gross exercise of discretionary powers. I understand
from the earlier discussions that these constitute violations of the oath
of office, and also I heard the Honorable Davide say that even the
criminal acts that were enumerated in the earlier 1973 provision on this
matter constitute betrayal of public trust as well. In order to avoid
confusion, would it not be clearer to stick to the wording of Section 2
which reads: "may be removed from office on impeachment for and
conviction of, culpable violation of the Constitution, treason, bribery,
and other high crimes, graft and corruption or VIOLATION OF HIS
OATH OF OFFICE", because if betrayal of public trust encompasses
the earlier acts that were enumerated, then it would behoove us to be
equally clear about this last provision or phrase.
MR. NOLLEDO: x x x I think we will miss a golden opportunity if we fail
to adopt the words "betrayal of public trust" in the 1986 Constitution.
But I would like him to know that we are amenable to any possible
amendment. Besides, I think plain error of judgment, where
circumstances may indicate that there is good faith, to my mind, will not
constitute betrayal of public trust if that statement will allay the fears of
difficulty in interpreting the term."68 (Emphasis supplied)
The Constitutional Commission eventually found it reasonably
acceptable for the phrase betrayal of public trust to refer to "acts which
are just short of being criminal but constitute gross faithlessness
against public trust, tyrannical abuse of power, inexcusable negligence
of duty, favoritism, and gross exercise of discretionary powers."69 In
other words, acts that should constitute betrayal of public trust as to
warrant removal from office may be less than criminal but must be
attended by bad faith and of such gravity and seriousness as the other
grounds for impeachment.
A Deputy Ombudsman and a Special Prosecutor are not impeachable
officers. However, by providing for their removal from office on the
same grounds as removal by impeachment, the legislature could not
have intended to redefine constitutional standards of culpable violation
of the Constitution, treason, bribery, graft and corruption, other high
crimes, as well as betrayal of public trust, and apply them less
stringently. Hence, where betrayal of public trust, for purposes of
impeachment, was not intended to cover all kinds of official wrongdoing
and plain errors of judgment, this should remain true even for purposes
of removing a Deputy Ombudsman and Special Prosecutor from office.
Hence, the fact that the grounds for impeachment have been made
statutory grounds for the removal by the President of a Deputy
Ombudsman and Special Prosecutor cannot diminish the seriousness
of their nature nor the acuity of their scope. Betrayal of public trust
could not suddenly "overreach" to cover acts that are not vicious or
malevolent on the same level as the other grounds for impeachment.
The tragic hostage-taking incident was the result of a confluence of
several unfortunate events including system failure of government
response. It cannot be solely attributed then to what petitioner
Gonzales may have negligently failed to do for the quick, fair and
complete resolution of the case, or to his error of judgment in the
disposition thereof. Neither should petitioner's official acts in the
resolution of P/S Insp. Mendoza's case be judged based upon the
resulting deaths at the Quirino Grandstand. The failure to immediately
act upon a party's requests for an early resolution of his case is not, by
itself, gross neglect of duty amounting to betrayal of public trust.
Records show that petitioner took considerably less time to act upon
the draft resolution after the same was submitted for his appropriate
action compared to the length of time that said draft remained pending
and unacted upon in the Office of Ombudsman Merceditas N.
Gutierrez. He reviewed and denied P/S Insp. Mendoza's motion for
reconsideration within nine (9) calendar days reckoned from the time
the draft resolution was submitted to him on April 27, 2010 until he
forwarded his recommendation to the Office of Ombudsman Gutierrez
on May 6, 2010 for the latter's final action. Clearly, the release of any
final order on the case was no longer in his hands.
Even if there was inordinate delay in the resolution of P/S Insp.
Mendoza's motion and an unexplained failure on petitioner's part to
supervise his subordinates in its prompt disposition, the same cannot
be considered a vicious and malevolent act warranting his removal for
betrayal of public trust. More so because the neglect imputed upon
petitioner appears to be an isolated case.
Similarly, petitioner's act of directing the PNP-IAS to endorse P/S Insp.
Mendoza's case to the Ombudsman without citing any reason therefor
cannot, by itself, be considered a manifestation of his undue interest in
the case that would amount to wrongful or unlawful conduct. After all,
taking cognizance of cases upon the request of concerned agencies or
private parties is part and parcel of the constitutional mandate of the
Office of the Ombudsman to be the "champion of the people." The
factual circumstances that the case was turned over to the Office of the
Ombudsman upon petitioner's request; that administrative liability was
pronounced against P/S Insp. Mendoza even without the private
complainant verifying the truth of his statements; that the decision was
immediately implemented; or that the motion for reconsideration
thereof remained pending for more than nine months cannot be simply
taken as evidence of petitioner's undue interest in the case considering
the lack of evidence of any personal grudge, social ties or business
affiliation with any of the parties to the case that could have impelled
him to act as he did. There was likewise no evidence at all of any
bribery that took place, or of any corrupt intention or questionable
motivation.
8
Accordingly, the OP's pronouncement of administrative accountability
against petitioner and the imposition upon him of the corresponding
penalty of dismissal must be reversed and set aside, as the findings of
neglect of duty or misconduct in office do not amount to a betrayal of
public trust. Hence, the President, while he may be vested with
authority, cannot order the removal of petitioner as Deputy
Ombudsman, there being no intentional wrongdoing of the grave and
serious kind amounting to a betrayal of public trust.
This is not to say, however, that petitioner is relieved of all liability for
his acts showing less than diligent performance of official duties.
Although the administrative acts imputed to petitioner fall short of the
constitutional standard of betrayal of public trust, considering the OP's
factual findings of negligence and misconduct against petitioner, the
Court deems it appropriate to refer the case to the Office of the
Ombudsman for further investigation of the charges in OP Case No.
10-J-460 and the imposition of the corresponding administrative
sanctions, if any.
Inasmuch as there is as yet no existing ground justifying his removal
from office, petitioner is entitled to reinstatement to his former position
as Deputy Ombudsman and to the payment of backwages and benefits
corresponding to the period of his suspension.
The Office of the President is vested
with statutory authority to proceed
administratively against petitioner
Barreras-Sulit to determine the
existence of any of the grounds for
her removal from office as provided
for under the Constitution and the
Ombudsman Act.
Petitioner Barreras-Sulit, on the other hand, has been resisting the
President's authority to remove her from office upon the averment that
without the Sandiganbayan's final approval and judgment on the basis
of the PLEBARA, it would be premature to charge her with acts and/or
omissions "tantamount to culpable violations of the Constitution and
betrayal of public trust," which are grounds for removal from office
under Section 8, paragraph (2) of the Ombudsman Act of 1989; and
which also constitute a violation of Section 3, paragraph (e) of Republic
Act No. 3019 (Anti-Graft and Corrupt Practices Act) - causing undue
injury to the Government or giving any private party any unwarranted
benefits, advantage or preference through manifest partiality, evident
bad faith or gross inexcusable negligence. With reference to the
doctrine of prejudicial procedural antecedent, petitioner Barreras-Sulit
asserts that the propriety of taking and continuing to take
administrative disciplinary proceeding against her must depend on the
final disposition by the Sandiganbayan of the PLEBARA, explaining
that if the Sandiganbayan would uphold the PLEBARA, there would no
longer be any cause of complaint against her; if not, then the situation
becomes ripe for the determination of her failings.
The argument will not hold water. The incidents that have taken place
subsequent to the submission in court of the PLEBARA shows that the
PLEBARA has been practically approved, and that the only thing which
remains to be done by the Sandiganbayan is to promulgate a judgment
imposing the proper sentence on the accused Major General Garcia
based on his new pleas to lesser offenses. On May 4, 2010, the
Sandiganbayan issued a resolution declaring that the change of plea
under the PLEBARA was warranted and that it complied with
jurisprudential guidelines. The Sandiganbayan, thereafter, directed the
accused Major General Garcia to immediately convey in favor of the
State all the properties, both real and personal, enumerated therein.
On August 11, 2010, the Sandiganbayan issued a resolution, which, in
order to put into effect the reversion of Major General Garcia's ill-gotten
properties, ordered the corresponding government agencies to cause
the transfer of ownership of said properties to the Republic of the
Philippines. In the meantime, the Office of the Special Prosecutor
(OSP) informed the Sandiganbayan that an Order70 had been issued
by the Regional Trial Court of Manila, Branch 21 on November 5, 2010
allowing the transfer of the accused's frozen accounts to the Republic
of the Philippines pursuant to the terms of the PLEBARA as approved
by the Sandiganbayan. Immediately after the OSP informed the
Sandiganbayan that its May 4, 2010 Resolution had been substantially
complied with, Major General Garcia manifested71 to the
Sandiganbayan on November 19, 2010 his readiness for sentencing
and for the withdrawal of the criminal information against his wife and
two sons. Major General Garcia's Motion to Dismiss,72 dated
December 16, 2010 and filed with the Sandiganbayan, reads:
1.0 The Co-Accused were impleaded under the theory of conspiracy
with the Principal Accused MGen. Carlos F. Garcia (AFP Ret.),
(Principal Accused) with the allegation that the act of one is the act of
the others. Therefore, with the approval by the Honorable Court of the
Plea Bargaining Agreement executed by the Principal Accused, the
charges against the Co-Accused should likewise be dismissed since
the charges against them are anchored on the same charges against
the Principal Accused.
On December 16, 2010, the Sandiganbayan allowed accused Major
General Garcia to plead guilty to the lesser offenses of direct bribery
and violation of Section 4(b), R.A. No. 9160, as amended. Upon Major
General Garcia's motion, and with the express conformity of the OSP, culpable violation of the Constitution and a betrayal of public trust, in
the Sandiganbayan allowed him to post bail in both cases, each at a accordance with Section 8(2) of the Ombudsman Act of 1989.
measly amount of ₱ 30,000.00.
The challenge to the constitutionality of Section 8(2) of the
The approval or disapproval of the PLEBARA by the Sandiganbayan is Ombudsman Act is hereby DENIED.
of no consequence to an administrative finding of liability against
petitioner Barreras-Sulit. While the court's determination of the SO ORDERED.
propriety of a plea bargain is on the basis of the existing prosecution
evidence on record, the disciplinary authority's determination of the ESTELA M. PERLAS-BERNABE
prosecutor's administrative liability is based on whether the plea Associate Justice
bargain is consistent with the conscientious consideration of the
government's best interest and the diligent and efficient performance WE CONCUR:
by the prosecution of its public duty to prosecute crimes against the
State. Consequently, the disciplining authority's finding of ineptitude, MARIA LOURDES P. A. SERENO
neglect or willfulness on the part of the prosecution, more particularly Chief Justice
petitioner Special Prosecutor Barreras-Sulit, in failing to pursue or build
a strong case for the government or, in this case, entering into an ANTONIO T. CARPIO
agreement which the government finds "grossly disadvantageous," Associate Justice PRESBITERO J. VELASCO, JR.
could result in administrative liability, notwithstanding court approval of Associate Justice
the plea bargaining agreement entered into. TERESITA J. LEONARDO-DE CASTRO
Associate Justice ARTURO D. BRION
Plea bargaining is a process in criminal cases whereby the accused Associate Justice
and the prosecution work out a mutually satisfactory disposition of the DIOSDADO M. PERALTA
case subject to court approval.73 The essence of a plea bargaining Associate Justice LUCAS P. BERSAMIN
agreement is the allowance of an accused to plead guilty to a lesser Associate Justice
offense than that charged against him. Section 2, Rule 116 of the MARIANO C. DEL CASTILLO
Revised Rules of Criminal Procedure provides the procedure therefor, Associate Justice ROBERTO A. ABAD
to wit: Associate Justice
MARTIN S. VILLARAMA, JR.
SEC. 2. Plea of guilty to a lesser offense. -- At arraignment, the Associate Justice JOSE PORTUGAL PEREZ
accused, with the consent of the offended party and the prosecutor, Associate Justice
may be allowed by the trial court to plead guilty to a lesser offense JOSE CATRAL MENDOZA
which is necessarily included in the offense charged. After arraignment Associate Justice BIENVENIDO L. REYES
but before trial, the accused may still be allowed to plead guilty to said Associate Justice
lesser offense after withdrawing his plea of not guilty. No amendment CERTIFICATION
of the complaint or information is necessary. (Sec. 4, Cir. 38-98)
I certify that the conclusions in the above Decision had been reached
Plea bargaining is allowable when the prosecution does not have in consultation before the case was assigned to the writer of the
sufficient evidence to establish the guilt of the accused of the crime opinion of the Court.
charged.74 However, if the basis for the allowance of a plea bargain in
this case is the evidence on record, then it is significant to state that in Ma. LOURDES P. A. SERENO
its earlier Resolution75 promulgated on January 7, 2010, the Chief Justice
Sandiganbayan had evaluated the testimonies of twenty (20)
prosecution witnesses and declared that "the conglomeration of
evidence presented by the prosecution is viewed by the Court to be of
strong character that militates against the grant of bail." G.R. No. 196231 January 28, 2014

Notwithstanding this earlier ruling by the Sandiganbayan, the OSP,
unexplainably, chose to plea bargain with the accused Major General
Garcia as if its evidence were suddenly insufficient to secure a
conviction. At this juncture, it is not amiss to emphasize that the
"standard of strong evidence of guilt which is sufficient to deny bail to
an accused is markedly higher than the standard of judicial probable
cause which is sufficient to initiate a criminal case."76 Hence, in light of
the apparently strong case against accused Major General Garcia, the
disciplining authority would be hard-pressed not to look into the whys
and wherefores of the prosecution's turnabout in the case.
The Court need not touch further upon the substantial matters that are
the subject of the pending administrative proceeding against petitioner
Barreras-Sulit and are, thus, better left to the complete and effective
resolution of the administrative case before the Office of the President.
The challenge to the constitutionality of Section 8(2) of the
Ombudsman Act has, nonetheless, failed to obtain the necessary votes
to invalidate the law, thus, keeping said provision part of the law of the
land. To recall, these cases involve two distinct issues: (a) the
constitutionality of Section 8(2) of the Ombudsman Act; and (b) the
validity of the administrative action of removal taken against petitioner
Gonzales. While the Court voted unanimously to reverse the decision
of the OP removing petitioner Gonzales from office, it was equally
divided in its opinion on the constitutionality of the assailed statutory
provision in its two deliberations held on April 17, 2012 and September
4, 2012. There being no majority vote to invalidate the law, the Court,
therefore, dismisses the challenge to the constitutionality of Section
8(2) of the Ombudsman Act in accordance with Section 2(d), Rule 12
of the Internal Rules of the Court.
Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the
vote of the majority of the Members of the Court actually taking part in
the deliberation to sustain any challenge to the constitutionality or
validity of a statute or any of its provisions.
WHEREFORE, in G.R. No. 196231, the decision of the Office of the
President in OP Case No. 10-J-460 is REVERSED and SET ASIDE.
Petitioner Emilio A. Gonzales III is ordered REINSTATED with
payment of backwages corresponding to the period of suspension
effective immediately, even as the Office of the Ombudsman is
directed to proceed with the investigation in connection with the above
case against petitioner. In G.R. No. 196232, We AFFIRM the
continuation of OP-DC Case No. 11-B-003 against Special Prosecutor
Wendell Barreras-Sulit for alleged acts and omissions tantamount to
9
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING
THROUGH AND REPRESENTED BY EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, OFFICER-IN-CHARGE -
OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL
AFFAIRS, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGAN-
SANCHEZ, AND ATTY. CARLITO D. CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS
EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT, ATTY.
DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY. FROILAN
D. MONTALBAN, JR., IN THEIR CAPACITIES AS CHAIRMAN AND
MEMBERS OF OFFICE OF MALACANANG LEGAL AFFAIRS,
Respondents.
DECISION
BRION, J.:
We resolve the Office of the President's (OP 's) motion for
reconsideration of our September 4, 2012 Decision1 which ruled on the
petitions filed by Deputy Ombudsman Emilio Gonzales III and Special
Prosecutor Wendell Barreras-Sulit. Their petitions challenged the
constitutionality of Section 8(2) of Republic Act (RA) No. 6770.2
In the challenged Decision, the Court upheld the constitutionality of
Section 8(2) of RA No. 6770 and ruled that the President has
disciplinary jurisdiction over a Deputy Ombudsman and a Special
Prosecutor. The Court, however, reversed the OP ruling that: (i) found
Gonzales guilty of Gross Neglect of Duty and Grave Misconduct
constituting betrayal of public trust; and (ii) imposed on him the penalty
of dismissal.
Sulit, who had not then been dismissed and who simply sought to
restrain the disciplinary proceedings against her, solely questioned the
jurisdiction of the OP to subject her to disciplinary proceedings. The
Court affirmed the continuation of the proceedings against her after
upholding the constitutionality of Section 8(2) of RA No. 6770.

The fallo of our assailed Decision reads:
WHEREFORE, in G.R. No. 196231, the decision of the Office of the
President in OP Case No. 1 O-J-460 is REVERSED and SET ASIDE.
Petitioner Emilio A. Gonzales III is ordered REINSTATED with
payment of backwages corresponding to the period of suspension
effective immediately, even as the Office of the Ombudsman is
directed to proceed with the investigation in connection with the above
case against petitioner. In G.R. No. 196232, We AFFIRM the
continuation of OP-DC Case No. ll-B-003 against Special Prosecutor
Wendell Barreras-Sulit for alleged acts and omissions tantamount to
culpable violation of the Constitution and a betrayal of public trust, in
accordance with Section 8(2) of the Ombudsman Act of 1989.3
In view of the Court’s ruling, the OP filed the present motion for
reconsideration through the Office of the Solicitor General (OSG).
We briefly narrate the facts that preceded the filing of the petitions and
the present motion for reconsideration.
I. ANTECEDENTS
A. Gonzales’ petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw filed separate charges with the
Philippine National Police Internal Affairs Service (PNP-IAS) and with
the Manila City Prosecutor’s Office against Manila Police District
Senior Inspector Rolando Mendoza and four others (Mendoza, et al.)
for robbery, grave threat, robbery extortion and physical injury.4
On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto
filed an administrative charge for grave misconduct with the National
Police Commission (NAPOLCOM) PNP-NCRPO against Mendoza, et
al. based on the same allegations made by Kalaw before the PNP-
IAS.5
On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other
Law Enforcement Officers (MOLEO), directed the NAPOLCOM to turn
over the records of Mendoza’s case to his office. The Office of the
Regional Director of the NAPOLCOM duly complied on July 24, 2008.6
Mendoza, et al. filed their position papers with Gonzales, in compliance
with his Order.7
Pending Gonzales’ action on Mendoza, et al.’s case (on August 26,
2008), the Office of the City Prosecutor of Manila City dismissed
Kalaw’s complaint against Mendoza, et al. for his failure to substantiate
his allegations.8 Similarly, on October 17, 2008, the PNP-IAS
recommended the dismissal without prejudice of the administrative
case against Mendoza, et al. for Kalaw’s failure to prosecute.9
On February 16, 2009, after preparing a draft decision on Mendoza, et
al.’s case, Gonzales forwarded the entire records to the Office of then
Ombudsman Merceditas Gutierrez for her review.10 In his draft
decision, Gonzales found Mendoza, et al. guilty of grave misconduct
and imposed on them the penalty of dismissal from the service.11
Mendoza, et al. received a copy of the Ombudsman’s decision that
approved Gonzales’ recommendation on October 30, 2009. Mendoza,
et al. filed a motion for reconsideration12 on November 5, 2009,
followed by a Supplement to the Motion for Reconsideration.13
On December 10, 2009, the MOLEO-Records Section forwarded
Mendoza, et al.’s case records to the Criminal Investigation,
Prosecution and Administrative Bureau-MOLEO. On December 14,
2009, the case was assigned to Graft Investigation and Prosecution
Officer (GIPO) Dennis Garcia for review and recommendation.14
GIPO Garcia released a draft order15 to his immediate superior,
Director Eulogio S. Cecilio, for appropriate action on April 5, 2010. Dir.
Cecilio signed and forwarded the draft order to Gonzales’ office on
April 27, 2010. Gonzales reviewed the draft and endorsed the order,
together with the case records, on May 6, 2010 for the final approval by
the Ombudsman.16
On August 23, 2010, pending final action by the Ombudsman on
Mendoza, et al.’s case, Mendoza hijacked a tourist bus and held the 21
foreign tourists and the four Filipino tour assistants on board as
hostages. While the government exerted earnest attempts to
peacefully resolve the hostage-taking, it ended tragically, resulting in
the deaths of Mendoza and several others on board the hijacked bus.
In the aftermath, President Benigno C. Aquino III directed the
Department of Justice and the Department of Interior and Local
Government to conduct a joint thorough investigation of the incident.
The two departments issued Joint Department Order No. 01-2010,
creating an Incident Investigation and Review Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the
Ombudsman and Gonzales accountable for their "gross negligence
10
and grave misconduct in handling the case against Mendoza."17 The
IIRC stated that the Ombudsman and Gonzales’ failure to promptly
resolve Mendoza’s motion for reconsideration, "without justification and
despite repeated pleas" xxx "precipitated the desperate resort to
hostage-taking."18 The IIRC recommended the referral of its findings
to the OP for further determination of possible administrative offenses
and for the initiation of the proper administrative proceedings.19
Accordingly, on October 15, 2010, Gonzales was formally charged
before the OP for Gross Neglect of Duty and/or Inefficiency in the
Performance of Official Duty and for Misconduct in Office.20
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as charged and
dismissed him from the service.21 According to the OP, "the inordinate
and unjustified delay in the resolution of [Mendoza’s] Motion for
Reconsideration [‘that spanned for nine (9) long months’] xxx
amounted to gross neglect of duty" and "constituted a flagrant
disregard of the Office of the Ombudsman’s own Rules of
Procedure."22
c. The Petition
Gonzales posited in his petition that the OP has no administrative
disciplinary jurisdiction over a Deputy Ombudsman. Under Section 21
of RA No. 6770, it is the Ombudsman who exercises administrative
disciplinary jurisdiction over the Deputy Ombudsman.
On the merits, Gonzales argued that his office received the draft order
from GIPO Garcia on April 27, 2010. On May 6, 2010, he completed
his review of the draft, approved it, and transmitted it to the Office of
the Ombudsman for final approval. Since the draft order on Mendoza’s
motion for reconsideration had to undergo different levels of
preparation, review and approval, the period it took to resolve the
motion could not be unjustified, since he himself acted on the draft
order only within nine (9) calendars days from his receipt of the
order.23
B. Sulit’s petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged Major General
Carlos F. Garcia and several others, before the Sandiganbayan, with
plunder and money laundering. On May 7, 2007, Garcia filed an Urgent
Petition for Bail which the prosecution opposed. The Sandiganbayan
denied Garcia's urgent petition for bail on January 7, 2010, in view of
the strength of the prosecution’s evidence against Garcia.
On February 25, 2010, the Office of the Ombudsman, through Sulit and
her prosecutorial staff, entered into a plea bargaining agreement
(Agreement) with Garcia.24 Garcia thereby agreed to: (i) withdraw his
plea of not guilty to the charge of plunder and enter a plea of guilty to
the lesser offense of indirect bribery; and (ii) withdraw his plea of not
guilty to the charge of money laundering and enter a guilty plea to the
lesser offense of facilitating money laundering. In exchange, he would
convey to the government his ownership, rights and other interests
over the real and personal properties enumerated in the Agreement
and the bank deposits alleged in the information.25
The Sandiganbayan approved the Agreement on May 4, 201026 based
on the parties’ submitted Joint Motion for Approval.27
The apparent one-sidedness of the Agreement drew public outrage
and prompted the Committee on Justice of the House of
Representatives to conduct an investigation. After public hearings, the
Committee found that Sulit, her deputies and assistants committed
culpable violations of the Constitution and betrayal of public trust –
grounds for removal under Section 8(2) of RA No. 6770.28 The
Committee recommended to the President the dismissal from the
service of Sulit and the filing of appropriate charges against her
deputies and assistants before the appropriate government office.
Accordingly, the OP initiated an administrative disciplinary proceeding
against Sulit.29 On March 24, 2011, Sulit filed her Written Explanation,
questioning the OP’s jurisdiction.30 The question of jurisdiction
notwithstanding, the OP set the case for preliminary investigation on
April 15, 2011, prompting Sulit to seek relief from this Court.
II. COURT’S RULING
On motion for reconsideration and further reflection, the Court votes to
grant Gonzales’ petition and to declare Section 8(2) of RA No. 6770
unconstitutional with respect to the Office of the Ombudsman. (As the
full explanation of the Court’s vote describes below, this conclusion
does not apply to Sulit as the grant of independence is solely with
respect to the Office of the Ombudsman which does not include the
Office of the Special Prosecutor under the Constitution. The prevailing
ruling on this latter point is embodied in the Concurring and Dissenting
Opinion of J. Marvic Mario Victor Leonen).
A. Preliminary considerations:
a. Absence of motion for reconsideration on the part of the petitioners

At the outset, the Court notes that Gonzales and Sulit did not file a
motion for reconsideration of the Court’s September 4, 2012 Decision;
only the OP, through the OSG, moved for the reconsideration of our
ruling reinstating Gonzales.
This omission, however, poses no obstacle for the Court’s review of its
ruling on the whole case since a serious constitutional question has
been raised and is one of the underlying bases for the validity or
invalidity of the presidential action. If the President does not have any
constitutional authority to discipline a Deputy Ombudsman and/or a
Special Prosecutor in the first place, then any ruling on the legal
correctness of the OP’s decision on the merits will be an empty one.
In other words, since the validity of the OP’s decision on the merits of
the dismissal is inextricably anchored on the final and correct ruling on
the constitutional issue, the whole case – including the constitutional
issue – remains alive for the Court’s consideration on motion for
reconsideration.
b. The justiciability of the constitutional
issue raised in the petitions
We clarify, too, that the issue of whether a Deputy Ombudsman may
be subjected to the administrative disciplinary jurisdiction of the
President (concurrently with that of the Ombudsman) is a justiciable –
not a political – question. A justiciable question is one which is
inherently susceptible of being decided on grounds recognized by
law,31 as where the court finds that there are constitutionally-imposed
limits on the exercise of the powers conferred on a political branch of
the government.32
In resolving the petitions, we do not inquire into the wisdom of the
Congress’ choice to grant concurrent disciplinary authority to the
President. Our inquiry is limited to whether such statutory grant violates
the Constitution, particularly whether Section 8(2) of RA No. 6770
violates the core constitutional principle of the independence of the
Office of the Ombudsman as expressed in Section 5, Art. XI of the
Constitution.
To be sure, neither the Executive nor the Legislative can create the
power that Section 8(2) of RA No. 6770 grants where the Constitution
confers none. When exercised authority is drawn from a vacuum, more
so when the authority runs counter to a core constitutional principle
and constitutional intents, the Court is duty-bound to intervene under
the powers and duties granted and imposed on it by Article VIII of the
Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established several
Ombudsman-like agencies to serve as the people's medium for airing
grievances and for direct redress against abuses and misconduct in
the government. Ultimately, however, these agencies failed to fully
realize their objective for lack of the political independence necessary
for the effective performance of their function as government critic.33
It was under the 1973 Constitution that the Office of the Ombudsman
became a constitutionally-mandated office to give it political
independence and adequate powers to enforce its mandate. Pursuant
to the 1973 Constitution, President Ferdinand Marcos enacted
Presidential Decree (PD) No. 1487, as amended by PD No. 1607 and
PD No. 1630, creating the Office of the Ombudsman to be known as
Tanodbayan. It was tasked principally to investigate, on complaint or
motu proprio, any administrative act of any administrative agency,
including any government-owned or controlled corporation. When the
Office of the Tanodbayan was reorganized in 1979, the powers
previously vested in the Special Prosecutor were transferred to the
Tanodbayan himself. He was given the exclusive authority to conduct
preliminary investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information, and control the
prosecution of these cases.34
With the advent of the 1987 Constitution, a new Office of the
Ombudsman was created by constitutional fiat. Unlike in the 1973
Constitution, its independence was expressly and constitutionally
guaranteed. Its objectives are to enforce the state policy in Section 27,
Article II35 and the standard of accountability in public service under
Section 1, Article XI of the 1987 Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and
corruption.
Section 1. Public office is a public trust. Public officers and employees
must, at all times, be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency; act with
patriotism and justice, and lead modest lives.
11
Under Section 12, Article XI of the 1987 Constitution, the Office of the
Ombudsman is envisioned to be the "protector of the people" against
the inept, abusive, and corrupt in the Government, to function
essentially as a complaints and action bureau.36 This constitutional
vision of a Philippine Ombudsman practically intends to make the
Ombudsman an authority to directly check and guard against the ills,
abuses and excesses of the bureaucracy. Pursuant to Section 13(8),
Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to
enable it to further realize the vision of the Constitution. Section 21 of
RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. —
The Office of the Ombudsman shall have disciplinary authority over all
elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of the
Cabinet, local government, government-owned or controlled
corporations and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress, and the
Judiciary. [emphasis ours, italics supplied]
As the Ombudsman is expected to be an "activist watchman,"37 the
Court has upheld its actions, although not squarely falling under the
broad powers granted it by the Constitution and by RA No. 6770, if
these actions are reasonably in line with its official function and
consistent with the law and the Constitution.38
The Ombudsman’s broad investigative and disciplinary powers include
all acts of malfeasance, misfeasance, and nonfeasance of all public
officials, including Members of the Cabinet and key Executive officers,
during their tenure. To support these broad powers, the Constitution
saw it fit to insulate the Office of the Ombudsman from the pressures
and influence of officialdom and partisan politics and from fear of
external reprisal by making it an "independent" office. Section 5,
Article XI of the Constitution expressed this intent, as follows:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military
establishment may likewise be appointed. [emphasis ours]
Given the scope of its disciplinary authority, the Office of the
Ombudsman is a very powerful government constitutional agency that
is considered "a notch above other grievance-handling investigative
bodies."39 It has powers, both constitutional and statutory, that are
commensurate with its daunting task of enforcing accountability of
public officers.40
b. "Independence" of constitutional bodies vis-a-vis the Ombudsman’s
independence
Under the Constitution, several constitutional bodies have been
expressly labeled as "independent."41 The extent of the independence
enjoyed by these constitutional bodies however varies and is to be
interpreted with two significant considerations in mind: first, the
functions performed or the powers involved in a given case; and
second, consistency of any allowable interference to these powers and
functions, with the principle of checks and balances.
Notably, the independence enjoyed by the Office of the Ombudsman
and by the Constitutional Commissions shares certain characteristics –
they do not owe their existence to any act of Congress, but are created
by the Constitution itself; additionally, they all enjoy fiscal autonomy. In
general terms, the framers of the Constitution intended that these
"independent" bodies be insulated from political pressure to the extent
that the absence of "independence" would result in the impairment of
their core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary,
we ruled against the interference that the President may bring and
maintained that the independence and the flexibility of the Judiciary,
the Constitutional Commissions and the Office of the Ombudsman are
crucial to our legal system.
The Judiciary, the Constitutional Commissions, and the Ombudsman
must have the independence and flexibility needed in the discharge of
their constitutional duties. The imposition of restrictions and constraints
on the manner the independent constitutional offices allocate and
utilize the funds appropriated for their operations is anathema to fiscal
autonomy and violative not only the express mandate of the
Constitution but especially as regards the Supreme Court, of the
independence and separation of powers upon which the entire fabric of
our constitutional system is based.
The constitutional deliberations explain the Constitutional
Commissions’ need for independence. In the deliberations of the 1973
Constitution, the delegates amended the 1935 Constitution by
providing for a constitutionally-created Civil Service Commission,
instead of one created by law, on the premise that the effectivity of this
body is dependent on its freedom from the tentacles of politics.43 In a
similar manner, the deliberations of the 1987 Constitution on the
Commission on Audit highlighted the developments in the past
Constitutions geared towards insulating the Commission on Audit from
political pressure.44
Notably, the Constitution also created an "independent" Commission
on Human Rights, although it enjoys a lesser degree of independence
since it is not granted fiscal autonomy in the manner fiscal autonomy is
granted to the constitutional commissions. The lack of fiscal autonomy
notwithstanding, the framers of the 1987 Constitution clearly expressed
their desire to keep the Commission independent from the executive
branch and other political leaders:
MR. MONSOD. We see the merits of the arguments of Commissioner
Rodrigo. If we explain to him our concept, he can advise us on how to
reconcile his position with ours. The position of the committee is that
we need a body that would be able to work and cooperate with the
executive because the Commissioner is right. Many of the services
needed by this commission would need not only the cooperation of the
executive branch of the government but also of the judicial branch of
government. This is going to be a permanent constitutional commission
over time. We also want a commission to function even under the
worst circumstance when the executive may not be very cooperative.
However, the question in our mind is: Can it still function during that
time? Hence, we are willing to accept suggestions from Commissioner
Rodrigo on how to reconcile this. We realize the need for coordination
and cooperation. We also would like to build in some safeguards that it
will not be rendered useless by an uncooperative executive.
xxxx
MR. GARCIA. xxx Very often, when international commissions or
organizations on human rights go to a country, the most credible
organizations are independent human rights bodies. Very often these
are private organizations, many of which are prosecuted, such as
those we find in many countries in Latin America. In fact, what we are
proposing is an independent body on human rights, which would
provide governments with credibility precisely because it is
independent of the present administration. Whatever it says on the
human rights situation will be credible because it is not subject to
pressure or control from the present political leadership.
Secondly, we all know how political fortunes come and go. Those who
are in power yesterday are in opposition today and those who are in
power today may be in the opposition tomorrow. Therefore, if we have
a Commission on Human Rights that would investigate and make sure
that the rights of each one is protected, then we shall have a body that
could stand up to any power, to defend the rights of individuals against
arrest, unfair trial, and so on.45
These deliberative considerations abundantly show that the
independent constitutional commissions have been consistently
intended by the framers to be independent from executive control or
supervision or any form of political influence. At least insofar as these
bodies are concerned, jurisprudence is not scarce on how the
"independence" granted to these bodies prevents presidential
interference.
In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional
Commissions, which have been characterized under the Constitution
as "independent," are not under the control of the President, even if
they discharge functions that are executive in nature. The Court
declared as unconstitutional the President’s act of temporarily
appointing the respondent in that case as Acting Chairman of the
Comelec "however well-meaning"47 it might have been.
In Bautista v. Senator Salonga,48 the Court categorically stated that
the tenure of the commissioners of the independent Commission on
Human Rights could not be placed under the discretionary power of the
President:
Indeed, the Court finds it extremely difficult to conceptualize how an
office conceived and created by the Constitution to be independent –
as the Commission on Human Rights – and vested with the delicate
and vital functions of investigating violations of human rights,
pinpointing responsibility and recommending sanctions as well as
remedial measures therefor, can truly function with independence and
effectiveness, when the tenure in office of its Chairman and Members
is made dependent on the pleasure of the President. Executive Order
No. 163-A, being antithetical to the constitutional mandate of
independence for the Commission on Human Rights has to be
declared unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered even the
mere review of the rules of the Commission on Elections by Congress
a "trampling" of the constitutional mandate of independence of this
body. Obviously, the mere review of rules places considerably less
pressure on a constitutional body than the Executive’s power to
discipline and remove key officials of the Office of the Ombudsman, yet
the Court struck down the law as unconstitutional.
The kind of independence enjoyed by the Office of the Ombudsman
certainly cannot be inferior – but is similar in degree and kind – to the
independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political
12
interstices of a republican democracy that are crucial to its existence
and proper functioning.50
c. Section 8(2) of RA No. 6770
vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Court’s expressed caution against
presidential interference with the constitutional commissions, on one
hand, and those expressed by the framers of the 1987 Constitution, on
the other, in protecting the independence of the Constitutional
Commissions, speak for themselves as overwhelming reasons to
invalidate Section 8(2) of RA No. 6770 for violating the independence
of the Office of the Ombudsman.
In more concrete terms, we rule that subjecting the Deputy
Ombudsman to discipline and removal by the President, whose own
alter egos and officials in the Executive Department are subject to the
Ombudsman’s disciplinary authority, cannot but seriously place at risk
the independence of the Office of the Ombudsman itself. The Office of
the Ombudsman, by express constitutional mandate, includes its key
officials, all of them tasked to support the Ombudsman in carrying out
her mandate. Unfortunately, intrusion upon the constitutionally-granted
independence is what Section 8(2) of RA No. 6770 exactly did. By so
doing, the law directly collided not only with the independence that the
Constitution guarantees to the Office of the Ombudsman, but inevitably
with the principle of checks and balances that the creation of an
Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and necessarily true
for her Deputies who act as agents of the Ombudsman in the
performance of their duties. The Ombudsman can hardly be expected
to place her complete trust in her subordinate officials who are not as
independent as she is, if only because they are subject to pressures
and controls external to her Office. This need for complete trust is true
in an ideal setting and truer still in a young democracy like the
Philippines where graft and corruption is still a major problem for the
government. For these reasons, Section 8(2) of RA No. 6770
(providing that the President may remove a Deputy Ombudsman)
should be declared void.
The deliberations of the Constitutional Commission on the
independence of the Ombudsman fully support this position.
Commissioner Florenz Regalado of the Constitutional Commission
expressed his apprehension that any form of presidential control over
the Office of the Ombudsman would diminish its independence.51 The
following exchanges between Commissioners Blas Ople and Christian
Monsod further reveal the constitutional intent to keep the Office of the
Ombudsman independent from the President:
MR. OPLE. xxx
May I direct a question to the Committee? xxx [W]ill the Committee
consider later an amendment xxx, by way of designating the office of
the Ombudsman as a constitutional arm for good government,
efficiency of the public service and the integrity of the President of the
Philippines, instead of creating another agency in a kind of
administrative limbo which would be accountable to no one on the
pretext that it is a constitutional body?
MR. MONSOD. The Committee discussed that during our committee
deliberations and when we prepared the report, it was the opinion of
the Committee — and I believe it still is — that it may not contribute to
the effectiveness of this office of the Ombudsman precisely because
many of the culprits in inefficiency, injustice and impropriety are in the
executive department. Therefore, as we saw the wrong implementation
of the Tanodbayan which was under the tremendous influence of the
President, it was an ineffectual body and was reduced to the function
of a special fiscal. The whole purpose of our proposal is precisely to
separate those functions and to produce a vehicle that will give true
meaning to the concept of Ombudsman. Therefore, we regret that we
cannot accept the proposition.52
The statements made by Commissioner Monsod emphasized a very
logical principle: the Executive power to remove and discipline key
officials of the Office of the Ombudsman, or to exercise any power over
them, would result in an absurd situation wherein the Office of the
Ombudsman is given the duty to adjudicate on the integrity and
competence of the very persons who can remove or suspend its
members. Equally relevant is the impression that would be given to the
public if the rule were otherwise. A complainant with a grievance
against a high-ranking official of the Executive, who appears to enjoy
the President’s favor, would be discouraged from approaching the
Ombudsman with his complaint; the complainant’s impression (even if
misplaced), that the Ombudsman would be susceptible to political
pressure, cannot be avoided. To be sure, such an impression would
erode the constitutional intent of creating an Office of the Ombudsman
as champion of the people against corruption and bureaucracy.
d. The mutual-protection argument for
crafting Section 8(2)of RA No. 6770
In crafting Section 8(2) of RA No. 6770, Congress apparently
addressed the concern that a lack of an external check against the
Deputy Ombudsman would result in mutual protection between the
Ombudsman and her Deputies.
While the preceding discussion already suffices to address this
concern, it should be added that this concern stands on shaky grounds
since it ignores the existing checks and balances already in place. On
the one hand, the Ombudsman’s Deputies cannot protect the
Ombudsman because she is subject to the impeachment power of
Congress. On the other hand, the Ombudsman’s attempt to cover up
the misdeeds of her Deputies can be questioned before the Court on
appeal or certiorari. The same attempt can likewise subject her to
impeachment.
The judicial recourse available is only consistent with the nature of the
Supreme Court as a non-political independent body mandated by the
Constitution to settle judicial and quasi-judicial disputes, whose judges
and employees are not subject to the disciplinary authority of the
Ombudsman and whose neutrality would be less questionable. The
Members of the Court themselves may be subjected to the
impeachment power of Congress.
In these lights, the appeal, if any, of the mutual protection argument
becomes distinctly implausible. At the same time, the Court remains
consistent with its established rulings - that the independence granted
to the Constitutional Commissions bars any undue interference from
either the Executive or Congress – and is in full accord with
constitutional intent.
e. Congress’ power determines the
manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority
Under Section 2, Article XI of the 1987 Constitution,53 Congress is
empowered to determine the modes of removal from office of all public
officers and employees except the President, the Vice-President, the
Members of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman, who are all impeachable officials.
The intent of the framers of the Constitution in providing that "[a]ll other
public officers and employees may be removed from office as provided
by law, but not by impeachment" in the second sentence of Section 2,
Article XI is to prevent Congress from extending the more stringent rule
of "removal only by impeachment" to favored public officers.54
Understandably so, impeachment is the most difficult and cumbersome
mode of removing a public officer from office. It is, by its nature, a sui
generis politico-legal process55 that signals the need for a judicious
and careful handling as shown by the process required to initiate the
proceeding;56 the one-year limitation or bar for its initiation;57 the
limited grounds for impeachment;58 the defined instrumentality given
the power to try impeachment cases;59 and the number of votes
required for a finding of guilt.60 All these argue against the extension
of this removal mechanism beyond those mentioned in the
Constitution.
On the practical side, our nation has witnessed the complications and
problems an impeachment proceeding entails, thus justifying its limited
application only to the officials occupying the highest echelons of
responsibility in our government. To name a few, some of the negative
practical effects of impeachment are: it stalls legislative work; it is an
expensive process in terms of the cost of prosecution alone; and, more
importantly, it is inherently divisive of the nation.61 Thus, in a cost-
benefit analysis of adopting impeachment as a mechanism, limiting
Congress’ power to otherwise legislate on the matter is far more
advantageous to the country.
It is in these lights that the second sentence in Section 2, Article XI of
the 1987 Constitution should be read. Contrary to the implied view of
the minority, in no way can this provision be regarded as blanket
authority for Congress to provide for any ground of removal it deems
fit. While the manner and cause of removal are left to congressional
determination, this must still be consistent with constitutional
guarantees and principles, namely: the right to procedural and
substantive due process; the constitutional guarantee of security of
tenure; the principle of separation of powers; and the principle of
checks and balances.62
In short, the authority granted by the Constitution to Congress to
provide for the manner and cause of removal of all other public officers
and employees does not mean that Congress can ignore the basic
principles and precepts established by the Constitution.
In the same manner, the congressional determination of the identity of
the disciplinary authority is not a blanket authority for Congress to
repose it on whomsoever Congress chooses without running afoul of
the independence enjoyed by the Office of the Ombudsman and
without disrupting the delicate check and balance mechanism under
the Constitution. Properly viewed from this perspective, the core
13
constitutional principle of independence is observed and any possible
absurdity resulting from a contrary interpretation is avoided. In other
words, while the Constitution itself vested Congress with the power to
determine the manner and cause of removal of all non-impeachable
officials, this power must be interpreted consistent with the core
constitutional principle of independence of the Office of the
Ombudsman. Our observation in Macalintal v. Comelec63 is apt:
The ambit of legislative power under Article VI of the Constitution is
circumscribed by other constitutional provisions. One such provision is
Section 1 of Article IX-A of the 1987 Constitution ordaining that
constitutional commissions such as the COMELEC shall be
"independent."
While one may argue that the grounds for impeachment under Section
8(2) of RA No. 6770 is intended as a measure of protection for the
Deputy Ombudsman and Special Prosecutor – since these grounds
are not intended to cover all kinds of official wrongdoing and plain
errors of judgment - this argument seriously overlooks the erosion of
the independence of the Office of the Ombudsman that it creates. The
mere fact that a statutorily-created sword of Damocles hangs over the
Deputy Ombudsman’s head, by itself, opens up all the channels for
external pressures and influence of officialdom and partisan politics.
The fear of external reprisal from the very office he is to check for
excesses and abuses defeats the very purpose of granting
independence to the Office of the Ombudsman.
That a judicial remedy is available (to set aside dismissals that do not
conform to the high standard required in determining whether a Deputy
Ombudsman committed an impeachable offense) and that the
President’s power of removal is limited to specified grounds are
dismally inadequate when balanced with the constitutional principle of
independence. The mere filing of an administrative case against the
Deputy Ombudsman and the Special Prosecutor before the OP can
already result in their suspension and can interrupt the performance of
their functions, in violation of Section 12, Article XI of the Constitution.
With only one term allowed under Section 11, a Deputy Ombudsman
or Special Prosecutor, if removable by the President, can be reduced
to the very same ineffective Office of the Ombudsman that the framers
had foreseen and carefully tried to avoid by making these offices
independent constitutional bodies.
At any rate, even assuming that the OP has disciplinary authority over
the Deputy Ombudsman, its decision finding Gonzales guilty of Gross
Neglect of Duty and Grave Misconduct constituting betrayal of public
trust is patently erroneous. The OP’s decision perfectly illustrates why
the requirement of impeachment-grounds in Section 8(2) of RA No.
6770 cannot be considered, even at a minimum, a measure of
protection of the independence of the Office of the Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the President’s
finding of gross negligence
has no legal and factual leg to
stand on
The OP’s decision found Gonzales guilty of Gross Neglect of Duty and
of Grave Misconduct. The assailed Decision of the OP reads:
Upon consideration of the First Report, the evidence and allegations of
respondent Deputy Ombudsman himself, and other documentary
evidence gathered, this Office finds that the inordinate and unjustified
delay in the resolution of Captain Mendoza’s Motion for
Reconsideration timely filed on 5 November 2009 xxx amounted to
gross neglect of duty and/or inefficiency in the performance of official
duty.64
b. No gross neglect of duty or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 - Mendoza filed a Motion for Reconsideration of
the decision of the Ombudsman,65 which was followed by a
Supplement to the Motion for Reconsideration;66
2. December 14, 200967 - GIPO Garcia, who was assigned to review
these motions and make his recommendation for the appropriate
action, received the records of the case;
3. April 5, 2010 – GIPO Garcia released a draft order to be reviewed by
his immediate superior, Dir. Cecilio;68
4. April 27, 2010 – Dir. Cecilio signed and forwarded to Gonzales this
draft order;69
5. May 6, 2010 (or nine days after the records were forwarded to
Gonzales) – Gonzales endorsed the draft order for the final approval of
the Ombudsman.70
Clearly, when Mendoza hijacked the tourist bus on August 23, 2010,
the records of the case were already pending before Ombudsman
Gutierrez.

Gross negligence refers to negligence characterized by the want of
even the slightest care, acting or omitting to act in a situation where
there is a duty to act, not inadvertently but willfully and intentionally,
with a conscious indifference to consequences insofar as other
persons may be affected. In the case of public officials, there is gross
negligence when a breach of duty is flagrant and palpable.71
Gonzales cannot be guilty of gross neglect of duty and/or inefficiency
since he acted on the case forwarded to him within nine days. In
finding Gonzales guilty, the OP72 relied on Section 8, Rule III of
Administrative Order No. 7 (or the Rules of Procedure of the Office of
the Ombudsman, series of 1990, as amended) in ruling that Gonzales
should have acted on Mendoza’s Motion for Reconsideration within five
days:
Section 8. Motion for reconsideration or reinvestigation: Grounds –
Whenever allowable, a motion for reconsideration or reinvestigation
may only be entertained if filed within ten (10) days from receipt of the
decision or order by the party on the basis of any of the following
grounds:
a) New evidence had been discovered which materially affects the
order, directive or decision;
b) Grave errors of facts or laws or serious irregularities have been
committed prejudicial to the interest of the movant.
Only one motion for reconsideration or reinvestigation shall be allowed,
and the Hearing Officer shall resolve the same within five (5) days from
the date of submission for resolution. [emphasis and underscore ours]
Even if we consider this provision to be mandatory, the period it
requires cannot apply to Gonzales since he is a Deputy Ombudsman
whose obligation is to review the case; he is not simply a Hearing
Officer tasked with the initial resolution of the motion. In Section 6 of
Administrative Order No. 7 on the resolution of the case and
submission of the proposed decision, the period for resolving the case
does not cover the period within which it should be reviewed:
Section 6. Rendition of decision. – Not later than thirty (30) days after
the case is declared submitted for resolution, the Hearing Officer shall
submit a proposed decision containing his findings and
recommendation for the approval of the Ombudsman. Said proposed
decision shall be reviewed by the Directors, Assistant Ombudsmen and
Deputy Ombudsmen concerned. With respect to low ranking public
officials, the Deputy Ombudsman concerned shall be the approving
authority. Upon approval, copies thereof shall be served upon the
parties and the head of the office or agency of which the respondent is
an official or employee for his information and compliance with the
appropriate directive contained therein. [italics and emphases supplied]
Thus, the OP’s ruling that Gonzales had been grossly negligent for
taking nine days, instead of five days, to review a case was totally
baseless.
c. No actionable failure to supervise subordinates
The OP’s claims that Gonzales could have supervised his subordinates
to promptly act on Mendoza’s motion and apprised the Tanodbayan of
the urgency of resolving the same are similarly groundless.
The Office of the Ombudsman is not a corner office in our bureaucracy.
It handles numerous cases that involve the potential loss of
employment of many other public employees. We cannot conclusively
state, as the OP appears to suggest, that Mendoza’s case should have
been prioritized over other similar cases.
The Court has already taken judicial notice of the steady stream of
cases reaching the Office of the Ombudsman.73 This consideration
certainly militates against the OSG’s observation that there was "a
grossly inordinate and inexcusable delay"74 on the part of Gonzales.
Equally important, the constitutional guarantee of "speedy disposition
of cases" before, among others, quasi-judicial bodies,75 like the Office
of the Ombudsman, is itself a relative concept.76 Thus, the delay, if
any, must be measured in this objective constitutional sense.
Unfortunately, because of the very statutory grounds relied upon by the
OP in dismissing Gonzales, the political and, perhaps, "practical"
considerations got the better of what is legal and constitutional.
The facts do not show that Gonzales’ subordinates had in any way
been grossly negligent in their work. While GIPO Garcia reviewed the
case and drafted the order for more than three months, it is noteworthy
that he had not drafted the initial decision and, therefore, had to review
the case for the first time.77 Even the Ombudsman herself could not
be faulted for acting on a case within four months, given the amount of
cases that her office handles.
The point is that these are not inordinately long periods for the work
involved: examination of the records, research on the pertinent laws
and jurisprudence, and exercise of legal judgment and discretion. If this
Court rules that these periods per se constitute gross neglect of duty,
14
the Ombudsman’s constitutional mandate to prosecute all the erring
officials of this country would be subjected to an unreasonable and
overwhelming constraint. Similarly, if the Court rules that these periods
per se constitute gross neglect of duty, then we must be prepared to
reconcile this with the established concept of the right of speedy
disposition of cases – something the Court may be hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue interest in
Mendoza’s case by having the case endorsed to the Office of the
Ombudsman and by resolving it against Mendoza on the basis of the
unverified complaint-affidavit of the alleged victim, Kalaw.
The fact that Gonzales had Mendoza’s case endorsed to his office lies
within his mandate, even if it were based merely on the request of the
alleged victim’s father. The Constitution empowers the Ombudsman
and her Deputies to act promptly on complaints filed in any form or
manner against any public official or employee of the government.78
This provision is echoed by Section 13 of RA No. 6770,79 and by
Section 3, Rule III of Administrative Order No. 7, series of 1990, as
amended.80
Moreover, Gonzales and his subordinates did not resolve the complaint
only on the basis of the unverified affidavit of Kalaw. Based on the
prosecution officer’s recommendations, the finding of guilt on the part
of Mendoza, et al. was based on their admissions as well. Mendoza, et
al. admitted that they had arrested Kalaw based on two traffic
violations and allowed him to stay the whole night until the following
morning in the police precinct. The next morning, Kalaw was allowed to
leave the precinct despite his failure to show a valid license and based
merely on his promise to return with the proper documents.81 These
admissions led Gonzales and his staff to conclude that Mendoza, et al.
irregularly acted in apprehending Kalaw, since the proper procedure for
the apprehension of traffic violators would be to give them a ticket and
to file a case, when appropriate.82
Lastly, we cannot deduce undue interest simply because Gonzales’
decision differs from the decision of the PNP-IAS (which dismissed the
complaint against Mendoza). To be sure, we cannot tie the hands of
any judicial or quasi-judicial body by ruling that it should always concur
with the decisions of other judicial or quasi-judicial bodies which may
have also taken cognizance of the case. To do so in the case of a
Deputy Ombudsman would be repugnant to the independence that our
Constitution has specifically granted to this office and would nullify the
very purpose for which it was created.
e. Penalty of dismissal totally
incommensurate with established facts
Given the lack of factual basis for the charges against Gonzales, the
penalty of removal imposed by the OP necessarily suffers grave
infirmity. Basic strictures of fair play dictate that we can only be held
liable for our own misdeeds; we can be made to account only for
lapses in our responsibilities. It is notable that of all the officers, it was
Gonzales who took the least time — nine days — followed by Cecilio,
who took 21 days; Garcia — the writer of the draft — took less than
four months, and the Ombudsman, less than four months until the
kidnapping incident rendered Mendoza’s motion moot.
In these lights, the decision of the OP is clearly and patently wrong.
This conclusion, however, does not preclude the Ombudsman from
looking into any other possible administrative liability of Gonzales
under existing Civil Service laws, rules and regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent Office of the
Ombudsman. The existing Tanodbayan at the time83 became the
Office of the Special Prosecutor under the 1987 Constitution. While the
composition of the independent Office of the Ombudsman under the
1987 Constitution does not textually include the Special Prosecutor,
the weight of the foregoing discussions on the unconstitutionality of
Section 8(2) of RA No. 6770 should equally apply to the
Special Prosecutor on the basis of the legislative history of the Office of
the Ombudsman as expounded in jurisprudence.
Under the 1973 Constitution,84 the legislature was mandated to create
the Office of the Ombudsman, known as the Tanodbayan, with
investigative and prosecutorial powers. Accordingly, on June 11, 1978,
President Ferdinand Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special Prosecutor" (CSP)
was given the "exclusive authority" to conduct preliminary investigation
and to prosecute cases that are within the jurisdiction of the
Sandiganbayan.87 PD No. 1486 expressly gave the Secretary of
Justice the power of control and supervision over the Special
Prosecutor.88 Consistent with this grant of power, the law also
authorized the Secretary of Justice to appoint or detail to the Office of
the CSP "any officer or employee of Department of Justice or any
Bureau or Office under the executive supervision thereof" to assist the
Office of the CSP.

In December 1978, PD No. 160789 practically gave back to the
Tanodbayan the powers taken away from it by the Office of the CSP.
The law "created in the Office of the Tanodbayan an Office of the Chief
Special Prosecutor" under the Tanodbayan’s control,90 with the
exclusive authority to conduct preliminary investigation and prosecute
all cases cognizable by the Sandiganbayan. Unlike the earlier decree,
the law also empowered the Tanodbayan to appoint Special
Investigators and subordinate personnel and/or to detail to the Office of
the CSP any public officer or employees who "shall be under the
supervision and control of the Chief Special Prosecutor."91 In 1979,
PD No. 1630 further amended the earlier decrees by transferring the
powers previously vested in the Special Prosecutor directly to the
Tanodbayan himself.92
This was the state of the law at the time the 1987 Constitution was
ratified. Under the 1987 Constitution, an "independent Office of the
Ombudsman" is created.93 The existing Tanodbayan is made the
Office of the Special Prosecutor, "who shall continue to function and
exercise its powers as now94 or hereafter may be provided by law."95
Other than the Ombudsman’s Deputies, the Ombudsman shall appoint
all other officials and employees of the Office of the Ombudsman.96
Section 13(8), Article XI of the 1987 Constitution provides that the
Ombudsman may exercise "such other powers or perform such
functions or duties as may be provided by law." Pursuant to this
constitutional command, Congress enacted RA No. 6770 to provide for
the functional and structural organization of the Office of the
Ombudsman and the extent of its disciplinary authority.
In terms of composition, Section 3 of RA No. 6770 defines the
composition of the Office of the Ombudsman, including in this Office
not only the offices of the several Deputy Ombudsmen but the Office of
the Special Prosecutor as well. In terms of appointment, the law gave
the President the authority to appoint the Ombudsman, his Deputies
and the Special Prosecutor, from a list of nominees prepared by the
Judicial and Bar Council. In case of vacancy in these positions, the law
requires that the vacancy be filled within three (3) months from
occurrence.97
The law also imposes on the Special Prosecutor the same
qualifications it imposes on the Ombudsman himself/herself and
his/her deputies.98 Their terms of office,99 prohibitions and
qualifications,100 rank and salary are likewise the same.101 The
requirement on disclosure102 is imposed on the Ombudsman, the
Deputies and the Special Prosecutor as well. In case of vacancy in the
Office of the Ombudsman, the Overall Deputy cannot assume the role
of Acting Ombudsman; the President may designate any of the
Deputies or the Special Prosecutor as Acting Ombudsman.103 The
power of the Ombudsman and his or her deputies to require other
government agencies to render assistance to the Office of the
Ombudsman is likewise enjoyed by the Special Prosecutor.104
Given this legislative history, the present overall legal structure of the
Office of the Ombudsman, both under the 1987 Constitution and RA
No. 6770, militates against an interpretation that would insulate the
Deputy Ombudsman from the disciplinary authority of the OP and yet
expose the Special Prosecutor to the same ills that a grant of
independence to the Office of the Ombudsman was designed for.
Congress recognized the importance of the Special Prosecutor as a
necessary adjunct of the Ombudsman, aside from his or her deputies,
by making the Office of the Special Prosecutor an organic component
of the Office of the Ombudsman and by granting the Ombudsman
control and supervision over that office.105 This power of control and
supervision includes vesting the Office of the Ombudsman with the
power to assign duties to the Special Prosecutor as he/she may deem
fit.1âwphi1 Thus, by constitutional design, the Special Prosecutor is by
no means an ordinary subordinate but one who effectively and directly
aids the Ombudsman in the exercise of his/her duties, which include
investigation and prosecution of officials in the Executive Department.
Under Section 11(4) of RA No. 6770, the Special Prosecutor handles
the prosecution of criminal cases within the jurisdiction of the
Sandiganbayan and this prosecutorial authority includes high-ranking
executive officials. For emphasis, subjecting the Special Prosecutor to
disciplinary and removal powers of the President, whose own alter
egos and officials in the Executive Department are subject to the
prosecutorial authority of the Special Prosecutor, would seriously place
the independence of the Office of the Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not expressly
made part of the composition of the Office of the Ombudsman, the role
it performs as an organic component of that Office militates against a
differential treatment between the Ombudsman’s Deputies, on one
hand, and the Special Prosecutor himself, on the other. What is true for
the Ombudsman must be equally true, not only for her Deputies but,
also for other lesser officials of that Office who act directly as agents of
the Ombudsman herself in the performance of her duties.
In Acop v. Office of the Ombudsman,106 the Court was confronted
with an argument that, at bottom, the Office of the Special Prosecutor
is not a subordinate agency of the Office of the Ombudsman and is, in
15
fact, separate and distinct from the latter. In debunking that argument,
the Court said:
Firstly, the petitioners misconstrue Commissioner Romulo's statement
as authority to advocate that the intent of the framers of the 1987
Constitution was to place the Office of the Special Prosecutor under
the Office of the President. Xxx
In the second place, Section 7 of Article XI expressly provides that the
then existing Tanodbayan, to be henceforth known as the Office of the
Special Prosecutor, "shall continue to function and exercise its powers
as now or hereafter may be provided by law, except those conferred on
the Office of the Ombudsman created under this Constitution." The
underscored phrase evidently refers to the Tanodbayan's powers
under P.D. No. 1630 or subsequent amendatory legislation. It follows
then that Congress may remove any of the Tanodbayan's/Special
Prosecutor's powers under P.D. N0. 1630 or grant it other powers,
except those powers conferred by the Constitution on the Office of the
Ombudsman.
Pursuing the present line of reasoning, when one considers that by
express mandate of paragraph 8, Section 13, Article XI of the
Constitution, the Ombudsman may "exercise such other powers or
perform functions or duties as may be provided by law," it is indubitable
then that Congress has the power to place the Office of the Special
Prosecutor under the Office of the Ombudsman.107
Thus, under the present Constitution, there is every reason to treat the
Special Prosecutor to be at par with the Ombudsman's deputies, at
least insofar as an extraneous disciplinary authority is concerned, and
must also enjoy the same grant of independence under the
Constitution.
III. SUMMARY OF VOTING
In the voting held on January 28, 2014, by a vote of 8-7,108 the Court
resolved to reverse its September 4, 2012 Decision insofar as
petitioner Gonzales is concerned (G.R. No. 196231). We declared
Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary
jurisdiction to the President over a Deputy Ombudsman, in violation of
the independence of the Office of the Ombudsman.
However, by another vote of 8-7,109 the Court resolved to maintain the
validity of Section 8(2) of RA No. 6770 insofar as Sulit is concerned.
The Court did not consider the Office of the Special Prosecutor to be
constitutionally within the Office of the Ombudsman and is, hence, not
entitled to the independence the latter enjoys under the Constitution.
WHEREFORE, premises considered, the Court resolves to declare
Section 8(2) UNCONSTITUTIONAL. This ruling renders any further
ruling on the dismissal of Deputy Ombudsman Emilio Gonzales III
unnecessary, but is without prejudice to the power of the Ombudsman
to conduct an administrative investigation, if warranted, into the
possible administrative liability of Deputy Ombudsman Emilio Gonzales
III under pertinent Civil Service laws, rules and regulations.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
I join J. Bernabe's opinion
MARIA LOURDES P. A. SERENO
Chief Justice
I join J. Bernabe's Dissenting Opinion
ANTONIO T. CARPIO
Associate Justice PRESBITERO J. VELASCO, JR.
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice I join J. Bernabe's opinion
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice I concur with the position of J. Bernabe
MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice JOSE CATRAL MENDOZA
Associate Justice
I concur with J. Bernabe's position
BIENVENIDO L. REYES
Associate Justice Pls. see concurring & Dissenting opinion
ESTELA M. PERLAS-BERNABE
Associate Justice
See separate, concurring and dissenting opinion
MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.
MARIA LOURDES P. A. SERENO
Chief Justice
G.R. No. L-56350 April 2, 1981
SAMUEL C. OCCENA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT,
THE NATIONAL TREASURER, THE DIRECTOR OF PRINTING,
respondents.
G.R. No. L-56404 April 2, 1981
RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA
MARCOS-IMBONG, RAY ALLAN T. DRILON, NELSON B. MALANA
and GIL M. TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON
ELECTIONS, respondents.
FERNANDO, C.J.:
The challenge in these two prohibition proceedings against the validity
of three Batasang Pambansa Resolutions 1 proposing constitutional
amendments, goes further than merely assailing their alleged
constitutional infirmity. Petitioners Samuel Occena and Ramon A.
Gonzales, both members of the Philippine Bar and former delegates to
the 1971 Constitutional Convention that framed the present
Constitution, are suing as taxpayers. The rather unorthodox aspect of
these petitions is the assertion that the 1973 Constitution is not the
fundamental law, the Javellana 2 ruling to the contrary notwithstanding.
To put it at its mildest, such an approach has the arresting charm of
novelty – but nothing else. It is in fact self defeating, for if such were
indeed the case, petitioners have come to the wrong forum. We sit as a
Court duty-bound to uphold and apply that Constitution. To contend
otherwise as was done here would be, quite clearly, an exercise in
futility. Nor are the arguments of petitioners cast in the traditional form
of constitutional litigation any more persuasive. For reasons to be set
forth, we dismiss the petitions.
The suits for prohibition were filed respectively on March 6 3 and
March 12, 1981. 4 On March 10 and 13 respectively, respondents were
required to answer each within ten days from notice. 5 There was a
comment on the part of the respondents. Thereafter, both cases were
set for hearing and were duly argued on March 26 by petitioners and
Solicitor General Estelito P. Mendoza for respondents. With the
submission of pertinent data in amplification of the oral argument, the
cases were deemed submitted for decision.
It is the ruling of the Court, as set forth at the outset, that the petitions
must be dismissed.
1. It is much too late in the day to deny the force and
applicability of the 1973 Constitution. In the dispositive portion of
Javellana v. The Executive Secretary, 6 dismissing petitions for
prohibition and mandamus to declare invalid its ratification, this Court
stated that it did so by a vote of six 7 to four. 8 It then concluded: "This
being the vote of the majority, there is no further judicial obstacle to the
new Constitution being considered in force and effect." 9 Such a
statement served a useful purpose. It could even be said that there
was a need for it. It served to clear the atmosphere. It made manifest
that, as of January 17, 1973, the present Constitution came into force
and effect. With such a pronouncement by the Supreme Court and with
the recognition of the cardinal postulate that what the Supreme Court
says is not only entitled to respect but must also be obeyed, a factor for
instability was removed. Thereafter, as a matter of law, all doubts were
resolved. The 1973 Constitution is the fundamental law. It is as simple
as that. What cannot be too strongly stressed is that the function of
judicial review has both a positive and a negative aspect. As was so
convincingly demonstrated by Professors Black 10 and Murphy, 11 the
Supreme Court can check as well as legitimate. In declaring what the
law is, it may not only nullify the acts of coordinate branches but may
also sustain their validity. In the latter case, there is an affirmation that
what was done cannot be stigmatized as constitutionally deficient. The
mere dismissal of a suit of this character suffices. That is the meaning
of the concluding statement in Javellana. Since then, this Court has
invariably applied the present Constitution. The latest case in point is
People v. Sola, 12 promulgated barely two weeks ago. During the first
year alone of the effectivity of the present Constitution, at least ten
cases may be cited. 13
2. We come to the crucial issue, the power of the Interim
Batasang Pambansa to propose amendments and how it may be
exercised. More specifically as to the latter, the extent of the changes
16
that may be introduced, the number of votes necessary for the validity
of a proposal, and the standard required for a proper submission. As
was stated earlier, petitioners were unable to demonstrate that the
challenged resolutions are tainted by unconstitutionality.
(1) The existence of the power of the Interim Batasang
Pambansa is indubitable. The applicable provision in the 1976
Amendments is quite explicit. Insofar as pertinent it reads thus: "The
Interim Batasang Pambansa shall have the same powers and its
Members shall have the same functions, responsibilities, rights,
privileges, and disqualifications as the interim National Assembly and
the regular National Assembly and the Members thereof." 14 One of
such powers is precisely that of proposing amendments. The 1973
Constitution in its Transitory Provisions vested the Interim National
Assembly with the power to propose amendments upon special call by
the Prime Minister by a vote of the majority of its members to be
ratified in accordance with the Article on Amendments. 15 When,
therefore, the Interim Batasang Pambansa, upon the call of the
President and Prime Minister Ferdinand E. Marcos, met as a
constituent body it acted by virtue Of such impotence Its authority to do
so is clearly beyond doubt. It could and did propose the amendments
embodied in the resolutions now being assailed. It may be observed
parenthetically that as far as petitioner Occena is Concerned, the
question of the authority of the Interim Batasang Pambansa to propose
amendments is not new. In Occena v. Commission on Elections, 16
filed by the same petitioner, decided on January 28, 1980, such a
question was involved although not directly passed upon. To quote
from the opinion of the Court penned by Justice Antonio in that case:
"Considering that the proposed amendment of Section 7 of Article X of
the Constitution extending the retirement of members of the Supreme
Court and judges of inferior courts from sixty-five (65) to seventy (70)
years is but a restoration of the age of retirement provided in the 1935
Constitution and has been intensively and extensively discussed at the
Interim Batasang Pambansa, as well as through the mass media, it
cannot, therefore, be said that our people are unaware of the
advantages and disadvantages of the proposed amendment." 17
(2) Petitioners would urge upon us the proposition that the
amendments proposed are so extensive in character that they go far
beyond the limits of the authority conferred on the Interim Batasang
Pambansa as Successor of the Interim National Assembly. For them,
what was done was to revise and not to amend. It suffices to quote
from the opinion of Justice Makasiar, speaking for the Court, in Del
Rosario v. Commission on Elections 18 to dispose of this contention.
Thus: "3. And whether the Constitutional Convention will only propose
amendments to the Constitution or entirely overhaul the present
Constitution and propose an entirely new Constitution based on an
Ideology foreign to the democratic system, is of no moment; because
the same will be submitted to the people for ratification. Once ratified
by the sovereign people, there can be no debate about the validity of
the new Constitution. 4. The fact that the present Constitution may be
revised and replaced with a new one ... is no argument against the
validity of the law because 'amendment' includes the 'revision' or total
overhaul of the entire Constitution. At any rate, whether the
Constitution is merely amended in part or revised or totally changed
would become immaterial the moment the same is ratified by the
sovereign people." 19 There is here the adoption of the principle so
well-known in American decisions as well as legal texts that a
constituent body can propose anything but conclude nothing. 20 We
are not disposed to deviate from such a principle not only sound in
theory but also advantageous in practice.
(3) That leaves only the questions of the vote necessary to
propose amendments as well as the standard for proper submission.
Again, petitioners have not made out a case that calls for a judgment in
their favor. The language of the Constitution supplies the answer to the
above questions. The Interim Batasang Pambansa, sitting as a
constituent body, can propose amendments. In that capacity, only a
majority vote is needed. It would be an indefensible proposition to
assert that the three-fourth votes required when it sits as a legislative
body applies as well when it has been convened as the agency
through which amendments could be proposed. That is not a
requirement as far as a constitutional convention is concerned. It is not
a requirement either when, as in this case, the Interim Batasang
Pambansa exercises its constituent power to propose amendments.
Moreover, even on the assumption that the requirement of three- fourth
votes applies, such extraordinary majority was obtained. It is not
disputed that Resolution No. 1 proposing an amendment allowing a
natural-born citizen of the Philippines naturalized in a foreign country to
own a limited area of land for residential purposes was approved by
the vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the
Prime Minister and the Cabinet, and the National Assembly by a vote
of 147 to 5 with 1 abstention; and Resolution No. 3 on the amendment
to the Article on the Commission on Elections by a vote of 148 to 2 with
1 abstention. Where then is the alleged infirmity? As to the requisite
standard for a proper submission, the question may be viewed not only
from the standpoint of the period that must elapse before the holding of
the plebiscite but also from the standpoint of such amendments having
been called to the attention of the people so that it could not plausibly
be maintained that they were properly informed as to the proposed
changes. As to the period, the Constitution indicates the way the
matter should be resolved. There is no ambiguity to the applicable
provision: "Any amendment to, or revision of, this Constitution shall be
valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not later than three months after the approval of such
amendment or revision." 21 The three resolutions were approved by
the Interim Batasang Pambansa sitting as a constituent assembly on
February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date
of the plebiscite is set for April 7, 1981. It is thus within the 90-day
period provided by the Constitution. Thus any argument to the contrary
is unavailing. As for the people being adequately informed, it cannot be
denied that this time, as in the cited 1980 Occena opinion of Justice
Antonio, where the amendment restored to seventy the retirement age
of members of the judiciary, the proposed amendments have "been
intensively and extensively discussed at the Interim Batasang
Pambansa, as well as through the mass media, [ so that ] it cannot,
therefore, be said that our people are unaware of the advantages and
disadvantages of the proposed amendment [ s ]." 22
WHEREFORE, the petitions are dismissed for lack of merit. No costs.
Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De
Castro and Melencio-Herrera, JJ., concur.
Abad Santos, J., is on leave.
Separate Opinions
TEEHANKEE, J., dissenting:
I vote to give due course to the petitions at bar and to grant the
application for a temporary restraining order enjoining the plebiscite
scheduled for April 7, 1981.
1. Consistently with my dissenting opinion in Sanidad vs.
Comelec 1 on the invalidity of the October 1976 amendments
proposals to the 1973 Constitution for not having been proposed nor
adopted in accordance with the mandatory provisions thereof, as
restated by me in Hidalgo vs. Marcos 2 and De la Llana vs. Comelec 3
, questioning the validity of the December 17, 1977 referendum –
exercise as to the continuance in office as incumbent President and to
be Prime Minister after the organization of the Interim Batasang
Pambansa as provided for in Amendment No. 3 of the 1976
Amendments, I am constrained to dissent from the majority decision of
dismissal of the petitions.
I had held in Sanidad that the transcendental constituent power to
propose and approve amendments to the Constitution as well as to set
up the machinery and prescribe the procedure for the ratification of the
amendments proposals has been withheld by the Constitution from the
President (Prime Minister) as sole repository of executive power and
that so long as the regular National Assembly provided for in Article
VIII of the Constitution had not come to existence and the proposals for
constitutional amendments were now deemed necessary to be
discussed and adopted for submittal to the people, strict adherence
with the mandatory requirements of the amending process as provided
in the Constitution must be complied with. This means, under the
prevailing doctrine of Tolentino vs. Comelec 4 that the proposed
amendments to be valid must come from the constitutional agency
vested with the constituent power to do so, i.e. in the Interim National
Assembly provided in the Transitory Article XVII which would then have
to be convened and not from the executive power as vested in the
President (Prime Minister) from whom such constituent power has
been withheld.
2. As restated by me in the 1977 case of Hidalgo, under the
controlling doctrine of Tolentino, the October 1976 constitutional
amendments which created the Interim Batasang Pambansa in lieu of
the Interim National Assembly were invalid since as ruled by the Court
therein, constitutional provisions on amendments "dealing with the
procedure or manner of amending the fundamental law are binding
upon the Convention and the other departments of the government
(and) are no less binding upon the people" and "the very Idea of
deparcing from the fundamental law is anachronistic in the realm of
constitutionalism and repugnant to the essence of the rule of law." The
proposed amendments at bar having been adopted by the Interim
Batasang Pambansa as the fruit of the invalid October, 1976
amendments must necessarily suffer from the same Congenital
infirmity.
3. Prescinding from the foregoing and assuming the validity of
the proposed amendments, I reiterate my stand in Sanidad that the
doctrine of fair and proper submission firs enunciated by a simple
majority of six Justices (of an eleven member Court prior to the 1973
Constitution which increased the official composition of the Court to
fifteen) in Gonzales vs. Comelec 5 and subsequently officially adopted
by the required constitutional two-thirds majority vote of the Court (of
eight votes, then) in Tolentino is fully applicable in the case at bar. The
three resolutions proposing complex, complicated and radical
amendments of our very structure of government were considered and
17
approved by the Interim Batasang Pambansa sitting as a constituent
assembly on February 27, 1981. It set the date of the plebiscite for
thirty-nine days later on April 7, 1981 which is totally inadequate and
far short of the ninety-day period fixed by the Constitution for submittal
to the people to "sufficiently inform them of the amendments to be
voted upon, to conscientiously deliberate thereon and to express their
will in a genuine manner." 6
4. "The minimum requirements that must be met in order that
there can be a proper submission to the people of a proposed
constitutional amendment" as stated by retired Justice Conrado V.
Sanchez in his separate opinion in Gonzales bears repeating as
follows: "... we take the view that the words 'submitted to the people for
their ratification,' if construed in the light of the nature of the
Constitution – a fundamental charter that is legislation direct from the
people, an expression of their sovereign will – is that it can only be
amended by the people expressing themselves according to the
procedure ordained by the Constitution. Therefore, amendments must
be fairly laid before the people for their blessing or spurning. The
people are not to be mere rubber stamps. They are not to vote blindly.
They must be afforded ample opportunity to mull over the original
provisions, compare them with the proposed amendments, and try to
reach a conclusion as the dictates of their conscience suggest, free
from the incubus of extraneous or possibly insidious influences. We
believe the word 'submitted' can only mean that the government, within
its maximum capabilities, should strain every short to inform every
citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. ... What the
Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency
within its structural framework to enlighten the people, educate them
with respect to their act of ratification or rejection. For, as we have
earlier stated, one thing is submission and another is ratification. There
must be fair submission, intelligent consent or rejection. If with all these
safeguards the people still approve the amendments no matter how
prejudicial it is to them, then so be it. For the people decree their own
fate."
Justice Sanchez therein ended the passage with an apt citation that "...
The great men who builded the structure of our state in this respect
had the mental vision of a good Constitution voiced by Judge Cooley,
who has said 'A good Constitution should be beyond the reach of
temporary excitement and popular caprice or passion. It is needed for
stability and steadiness; it must yield to the thought of the people; not
to the whim of the people, or the thought evolved in excitement, or hot
blood, but the sober second thought, which alone if the government is
to be safe, can be allowed efficacy ... Changes in government are to be
feard unless benefit is certain.' As Montaign says: 'All great mutation
shake and disorder a state. Good does not necessarily succeed evil;
another evil may succeed and a worse."'
Separate Opinions
TEEHANKEE, J., dissenting:
I vote to give due course to the petitions at bar and to grant the
application for a temporary restraining order enjoining the plebiscite
scheduled for April 7, 1981.
1. Consistently with my dissenting opinion in Sanidad vs.
Comelec 1 on the invalidity of the October 1976 amendments
proposals to the 1973 Constitution for not having been proposed nor
adopted in accordance with the mandatory provisions thereof, as
restated by me in Hidalgo vs. Marcos 2 and De la Llana vs. Comelec 3
, questioning the validity of the December 17, 1977 referendum –
exercise as to the continuance in office as incumbent President and to
be Prime Minister after the organization of the Interim Batasang
Pambansa as provided for in Amendment No. 3 of the 1976
Amendments, I am constrained to dissent from the majority decision of
dismissal of the petitions.
I had held in Sanidad that the transcendental constituent power to
propose and approve amendments to the Constitution as well as to set
up the machinery and prescribe the procedure for the ratification of the
amendments proposals has been withheld by the Constitution from the
President (Prime Minister) as sole repository of executive power and
that so long as the regular National Assembly provided for in Article
VIII of the Constitution had not come to existence and the proposals for
constitutional amendments were now deemed necessary to be
discussed and adopted for submittal to the people, strict adherence
with the mandatory requirements of the amending process as provided
in the Constitution must be complied with. This means, under the
prevailing doctrine of Tolentino vs. Comelec 4 that the proposed
amendments to be valid must come from the constitutional agency
vested with the constituent power to do so, i.e. in the Interim National
Assembly provided in the Transitory Article XVII which would then have
to be convened and not from the executive power as vested in the
President (Prime Minister) from whom such constituent power has
been withheld.

2. As restated by me in the 1977 case of Hidalgo, under the controlling
doctrine of Tolentino, the October 1976 constitutional amendments
which created the Interim Batasang Pambansa in lieu of the Interim
National Assembly were invalid since as ruled by the Court therein,
constitutional provisions on amendments "dealing with the procedure
or manner of amending the fundamental law are binding upon the
Convention and the other departments of the government (and) are no
less binding upon the people" and "the very Idea of deparcing from the
fundamental law is anachronistic in the realm of constitutionalism and
repugnant to the essence of the rule of law." The proposed
amendments at bar having been adopted by the Interim Batasang
Pambansa as the fruit of the invalid October, 1976 amendments must
necessarily suffer from the same Congenital infirmity.
3. Prescinding from the foregoing and assuming the validity of
the proposed amendments, I reiterate my stand in Sanidad that the
doctrine of fair and proper submission firs enunciated by a simple
majority of six Justices (of an eleven member Court prior to the 1973
Constitution which increased the official composition of the Court to
fifteen) in Gonzales vs. Comelec 5 and subsequently officially adopted
by the required constitutional two-thirds majority vote of the Court (of
eight votes, then) in Tolentino is fully applicable in the case at bar. The
three resolutions proposing complex, complicated and radical
amendments of our very structure of government were considered and
approved by the Interim Batasang Pambansa sitting as a constituent
assembly on February 27, 1981. It set the date of the plebiscite for
thirty-nine days later on April 7, 1981 which is totally inadequate and
far short of the ninety-day period fixed by the Constitution for submittal
to the people to "sufficiently inform them of the amendments to be
voted upon, to conscientiously deliberate thereon and to express their
will in a genuine manner." 6
4. "The minimum requirements that must be met in order that
there can be a proper submission to the people of a proposed
constitutional amendment" as stated by retired Justice Conrado V.
Sanchez in his separate opinion in Gonzales bears repeating as
follows: "... we take the view that the words 'submitted to the people for
their ratification,' if construed in the light of the nature of the
Constitution – a fundamental charter that is legislation direct from the
people, an expression of their sovereign will – is that it can only be
amended by the people expressing themselves according to the
procedure ordained by the Constitution. Therefore, amendments must
be fairly laid before the people for their blessing or spurning. The
people are not to be mere rubber stamps. They are not to vote blindly.
They must be afforded ample opportunity to mull over the original
provisions, compare them with the proposed amendments, and try to
reach a conclusion as the dictates of their conscience suggest, free
from the incubus of extraneous or possibly insidious influences. We
believe the word 'submitted' can only mean that the government, within
its maximum capabilities, should strain every short to inform every
citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. ... What the
Constitution in effect directs is that the government, in submitting an
amendment for ratification, should put every instrumentality or agency
within its structural framework to enlighten the people, educate them
with respect to their act of ratification or rejection. For, as we have
earlier stated, one thing is submission and another is ratification. There
must be fair submission, intelligent consent or rejection. If with all these
safeguards the people still approve the amendments no matter how
prejudicial it is to them, then so be it. For the people decree their own
fate."
Justice Sanchez therein ended the passage with an apt citation that "...
The great men who builded the structure of our state in this respect
had the mental vision of a good Constitution voiced by Judge Cooley,
who has said 'A good Constitution should be beyond the reach of
temporary excitement and popular caprice or passion. It is needed for
stability and steadiness; it must yield to the thought of the people; not
to the whim of the people, or the thought evolved in excitement, or hot
blood, but the sober second thought, which alone if the government is
to be safe, can be allowed efficacy ... Changes in government are to be
feard unless benefit is certain.' As Montaign says: 'All great mutation
shake and disorder a state. Good does not necessarily succeed evil;
another evil may succeed and a worse."'
G.R. No. L-32432 September 11, 1970
MANUEL B. IMBONG, petitioner,
vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO
and CESAR MILAFLOR, as members thereof, respondents.
G.R. No. L-32443 September 11, 1970
IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT
REGARDING THE VALIDITY OF R.A. No. 6132, OTHERWISE
KNOWN AS THE CONSTITUTIONAL CONVENTION ACT OF 1970.
RAUL M. GONZALES, petitioner,
vs.
COMELEC, respondent.
18
Manuel B. Imbong in his own behalf.
Raul M. Gonzales in his own behalf.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant
Solicitor General Ricardo L. Pronove, Jr., and Solicitors Raul I. Goco,
Bernardo P. Pardo, Rosalio A. de Leon, Vicente A. Torres and
Guillermo C. Nakar for respondents.
Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel
Pelaez as amici curiae.
MAKASIAR, J.:
These two separate but related petitions for declaratory relief were filed
pursuant to Sec. 19 of R.A. No. 6132 by petitioners Manuel B. Imbong
and Raul M. Gonzales, both members of the Bar, taxpayers and
interested in running as candidates for delegates to the Constitutional
Convention. Both impugn the constitutionality of R.A. No. 6132,
claiming during the oral argument that it prejudices their rights as such
candidates. After the Solicitor General had filed answers in behalf the
respondents, hearings were held at which the petitioners and the amici
curiae, namely Senator Lorenzo Tañada, Senator Arturo Tolentino,
Senator Jovito Salonga, and Senator Emmanuel Pelaez argued orally.
It will be recalled that on March 16, 1967, Congress, acting as a
Constituent Assembly pursuant to Art. XV of the Constitution, passed
Resolution No. 2 which among others called for a Constitutional
Convention to propose constitutional amendments to be composed of
two delegates from each representative district who shall have the
same qualifications as those of Congressmen, to be elected on the
second Tuesday of November, 1970 in accordance with the Revised
Election Code.
After the adoption of said Res. No. 2 in 1967 but before the November
elections of that year, Congress, acting as a legislative body, enacted
Republic Act No. 4914 implementing the aforesaid Resolution No. 2
and practically restating in toto the provisions of said Resolution No. 2.
On June 17, 1969, Congress, also acting as a Constituent Assembly,
passed Resolution No. 4 amending the aforesaid Resolution No. 2 of
March 16, 1967 by providing that the convention "shall be composed of
320 delegates apportioned among the existing representative districts
according to the number of their respective inhabitants: Provided, that
a representative district shall be entitled to at least two delegates, who
shall have the same qualifications as those required of members of the
House of Representatives,"1 "and that any other details relating to the
specific apportionment of delegates, election of delegates to, and the
holding of, the Constitutional Convention shall be embodied in an
implementing legislation: Provided, that it shall not be inconsistent with
the provisions of this Resolution."2
On August 24, 1970, Congress, acting as a legislative body, enacted
Republic Act No. 6132, implementing Resolutions Nos. 2 and 4, and
expressly repealing R.A. No.
4914.3
Petitioner Raul M. Gonzales assails the validity of the entire law as well
as the particular provisions embodied in Sections 2, 4, 5, and par. 1 of
8(a). Petitioner Manuel B. Imbong impugns the constitutionality of only
par. I of Sec. 8(a) of said R.A. No. 6132 practically on the same
grounds advanced by petitioner Gonzales.
I
The validity of Sec. 4 of R.A. No. 6132, which considers, all public
officers and employees, whether elective or appointive, including
members of the Armed Forces of the Philippines, as well as officers
and employees of corporations or enterprises of the government, as
resigned from the date of the filing of their certificates of candidacy,
was recently sustained by this Court, on the grounds, inter alia, that the
same is merely an application of and in consonance with the
prohibition in Sec. 2 of Art. XII of the Constitution and that it does not
constitute a denial of due process or of the equal protection of the law.
Likewise, the constitutionality of paragraph 2 of Sec. 8(a) of R.A. No.
6132 was upheld.4
II
Without first considering the validity of its specific provisions, we
sustain the constitutionality of the enactment of R.A. No. 6132 by
Congress acting as a legislative body in the exercise of its broad law-
making authority, and not as a Constituent Assembly, because —
1. Congress, when acting as a Constituent Assembly pursuant
to Art. XV of the Constitution, has full and plenary authority to propose
Constitutional amendments or to call a convention for the purpose, by
a three-fourths vote of each House in joint session assembled but
voting separately. Resolutions Nos. 2 and 4 calling for a constitutional
convention were passed by the required three-fourths vote.
2. The grant to Congress as a Constituent Assembly of such
plenary authority to call a constitutional convention includes, by virtue
of the doctrine of necessary implication, all other powers essential to
the effective exercise of the principal power granted, such as the power
to fix the qualifications, number, apportionment, and compensation of
the delegates as well as appropriation of funds to meet the expenses
for the election of delegates and for the operation of the Constitutional
Convention itself, as well as all other implementing details
indispensable to a fruitful convention. Resolutions Nos. 2 and 4 already
embody the above-mentioned details, except the appropriation of
funds.
3. While the authority to call a constitutional convention is
vested by the present Constitution solely and exclusively in Congress
acting as a Constituent Assembly, the power to enact the implementing
details, which are now contained in Resolutions Nos. 2 and 4 as well
as in R.A. No. 6132, does not exclusively pertain to Congress acting as
a Constituent Assembly. Such implementing details are matters within
the competence of Congress in the exercise of its comprehensive
legislative power, which power encompasses all matters not expressly
or by necessary implication withdrawn or removed by the Constitution
from the ambit of legislative action. And as lone as such statutory
details do not clash with any specific provision of the constitution, they
are valid.
4. Consequently, when Congress, acting as a Constituent
Assembly, omits to provide for such implementing details after calling a
constitutional convention, Congress, acting as a legislative body, can
enact the necessary implementing legislation to fill in the gaps, which
authority is expressly recognized in Sec. 8 of Res No. 2 as amended
by Res. No. 4.
5. The fact that a bill providing for such implementing details
may be vetoed by the President is no argument against conceding
such power in Congress as a legislative body nor present any difficulty;
for it is not irremediable as Congress can override the Presidential veto
or Congress can reconvene as a Constituent Assembly and adopt a
resolution prescribing the required implementing details.
III
Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment
of delegates is not in accordance with proportional representation and
therefore violates the Constitution and the intent of the law itself,
without pinpointing any specific provision of the Constitution with which
it collides.
Unlike in the apportionment of representative districts, the Constitution
does not expressly or impliedly require such apportionment of
delegates to the convention on the basis of population in each
congressional district. Congress, sitting as a Constituent Assembly,
may constitutionally allocate one delegate for, each congressional
district or for each province, for reasons of economy and to avoid
having an unwieldy convention. If the framers of the present
Constitution wanted the apportionment of delegates to the convention
to be based on the number of inhabitants in each representative
district, they would have done so in so many words as they did in
relation to the apportionment of the representative districts.5
The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot
possibly conflict with its own intent expressed therein; for it merely
obeyed and implemented the intent of Congress acting as a
Constituent Assembly expressed in Sec. 1 of Res. No. 4, which
provides that the 320 delegates should be apportioned among the
existing representative districts according to the number of their
respective inhabitants, but fixing a minimum of at least two delegates
for a representative district. The presumption is that the factual
predicate, the latest available official population census, for such
apportionment was presented to Congress, which, accordingly
employed a formula for the necessary computation to effect the desired
proportional representation.
The records of the proceedings on Senate Bill No. 77 sponsored by
Senator Pelaez which is now R.A. No. 6132, submitted to this Tribunal
by the amici curiae, show that it based its apportionment of the
delegates on the 1970 official preliminary population census taken by
the Bureau of Census and Statistics from May 6 to June 30, 1976; and
that Congress adopted the formula to effect a reasonable
apportionment of delegates. The Director of the Bureau of Census and
Statistics himself, in a letter to Senator Pelaez dated July 30, 1970,
stated that "on the basis of the preliminary count of the population, we
have computed the distribution of delegates to the Constitutional
Convention based on Senate Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12)
which is a fair and an equitable method of distributing the delegates
pursuant to the provisions of the joint Resolution of both Houses No. 2,
as amended. Upon your request at the session of the Senate-House
Conference Committee meeting last night, we are submitting herewith
the results of the computation on the basis of the above-stated
method."
Even if such latest census were a preliminary census, the same could
still be a valid basis for such apportionment.6 The fact that the lone
19
and small congressional district of Batanes, may be over-represented,
because it is allotted two delegates by R.A. No. 6132 despite the fact
that it has a population very much less than several other
congressional districts, each of which is also allotted only two
delegates, and therefore under-represented, vis-a-vis Batanes alone,
does not vitiate the apportionment as not effecting proportional
representation. Absolute proportional apportionment is not required
and is not possible when based on the number of inhabitants, for the
population census cannot be accurate nor complete, dependent as it is
on the diligence of the census takers, aggravated by the constant
movement of population, as well as daily death and birth. It is enough
that the basis employed is reasonable and the resulting apportionment
is substantially proportional. Resolution No. 4 fixed a minimum of two
delegates for a congressional district.
While there may be other formulas for a reasonable apportionment
considering the evidence submitted to Congress by the Bureau of
Census and Statistics, we are not prepared to rule that the computation
formula adopted by, Congress for proportional representation as,
directed in Res. No. 4 is unreasonable and that the apportionment
provided in R.A. No. 6132 does not constitute a substantially
proportional representation.
In the Macias case, relied on by petitioner Gonzales, the
apportionment law, which was nullified as unconstitutional, granted
more representatives to a province with less population than the
provinces with more inhabitants. Such is not the case here, where
under Sec. 2 of R.A. No. 6132 Batanes is allotted only two delegates,
which number is equal to the number of delegates accorded other
provinces with more population. The present petitions therefore do not
present facts which fit the mould of the doctrine in the case of Macias
et al. vs. Comelec, supra.
The impossibility of absolute proportional representation is recognized
by the Constitution itself when it directs that the apportionment of
congressional districts among the various provinces shall be "as nearly
as may be according to their respective inhabitants, but each province
shall have at least one member" (Sec. 5, Art. VI, Phil. Const., emphasis
supplied). The employment of the phrase "as nearly as may be
according to their respective inhabitants" emphasizes the fact that the
human mind can only approximate a reasonable apportionment but
cannot effect an absolutely proportional representation with
mathematical precision or exactitude.
IV
Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue
deprivation of liberty without due process of law and denies the equal
protection of the laws. Said Sec. 5 disqualifies any elected delegate
from running "for any public office in any election" or from assuming
"any appointive office or position in any branch of the government
government until after the final adjournment of the Constitutional
Convention."
That the citizen does not have any inherent nor natural right to a public
office, is axiomatic under our constitutional system. The State through
its Constitution or legislative body, can create an office and define the
qualifications and disqualifications therefor as well as impose
inhibitions on a public officer. Consequently, only those with
qualifications and who do not fall under any constitutional or statutory
inhibition can be validly elected or appointed to a public office. The
obvious reason for the questioned inhibition, is to immunize the
delegates from the perverting influence of self-interest, party interest or
vested interest and to insure that he dedicates all his time to
performing solely in the interest of the nation his high and well nigh
sacred function of formulating the supreme law of the land, which may
endure for generations and which cannot easily be changed like an
ordinary statute. With the disqualification embodied in Sec. 5, the
delegate will not utilize his position as a bargaining leverage for
concessions in the form of an elective or appointive office as long as
the convention has not finally adjourned. The appointing authority may,
by his appointing power, entice votes for his own proposals. Not love
for self, but love for country must always motivate his actuations as
delegate; otherwise the several provisions of the new Constitution may
only satisfy individual or special interests, subversive of the welfare of
the general citizenry. It should be stressed that the disqualification is
not permanent but only temporary only to continue until the final
adjournment of the convention which may not extend beyond one year.
The convention that framed the present Constitution finished its task in
approximately seven months — from July 30, 1934 to February 8,
1935.
As admitted by petitioner Gonzales, this inhibition finds analogy in the
constitutional provision prohibiting a member of Congress, during the
time for which he was elected, from being appointed to any civil office
which may have been created or the emolument whereof shall have
been increased while he was a member of the Congress. (Sec. 16, Art.
VI, Phil. Constitution.)
As observed by the Solicitor General in his Answer, the overriding
objective of the challenged disqualification, temporary in nature, is to
compel the elected delegates to serve in full their term as such and to
devote all their time to the convention, pursuant to their representation
and commitment to the people; otherwise, his seat in the convention
will be vacant and his constituents will be deprived of a voice in the
convention. The inhibition is likewise "designed to prevent popular
political figures from controlling elections or positions. Also it is a brake
on the appointing power, to curtail the latter's desire to 'raid' the
convention of "talents" or attempt to control the convention." (p. 10,
Answer in L-32443.)
Thus the challenged disqualification prescribed in Sec. 5 of R.A. No.
6132 is a valid limitation on the right to public office pursuant to state
police power as it is reasonable and not arbitrary.
The discrimination under Sec. 5 against delegates to the Constitutional
Convention is likewise constitutional; for it is based on a substantial
distinction which makes for real differences, is germane to the
purposes of the law, and applies to all members of the same class.7
The function of a delegate is more far-reaching and its effect more
enduring than that of any ordinary legislator or any other public officer.
A delegate shapes the fundamental law of the land which delineates
the essential nature of the government, its basic organization and
powers, defines the liberties of the people, and controls all other laws.
Unlike ordinary statutes, constitutional amendments cannot be
changed in one or two years. No other public officer possesses such a
power, not even the members of Congress unless they themselves,
propose constitutional amendments when acting as a Constituent
Assembly pursuant to Art. XV of the Constitution. The classification,
therefore, is neither whimsical nor repugnant to the sense of justice of
the community.
As heretofore intimated, the inhibition is relevant to the object of the
law, which is to insure that the proposed amendments are meaningful
to the masses of our people and not designed for the enhancement of
selfishness, greed, corruption, or injustice.
Lastly, the disqualification applies to all the delegates to the convention
who will be elected on the second Tuesday of November, 1970.
V conventions, caucuses, conferences, meetings, rallies, parades or
Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both
petitioners as violative of the constitutional guarantees of due process,
equal protection of the laws, freedom of expressions, freedom of
assembly and freedom of association.
This Court ruled last year that the guarantees of due process, equal
protection of the laws, peaceful assembly, free expression, and the
right of association are neither absolute nor illimitable rights; they are
always subject to the pervasive and dormant police power of the State
and may be lawfully abridged to serve appropriate and important public
interests.8
In said Gonzalez vs. Comelec case the Court applied the clear and
present danger test to determine whether a statute which trenches
upon the aforesaid Constitutional guarantees, is a legitimate exercise
of police power.9
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:
1. any candidate for delegate to the convention
(a) from representing, or
(b) allowing himself to be represented as being a candidate of
any political party or any other organization; and
2. any political party, political group, political committee, civic,
religious, professional or other organizations or organized group of
whatever nature from
(a) intervening in the nomination of any such candidate or in the
filing of his certificate, or
(b) from giving aid or support directly or indirectly, material or
otherwise, favorable to or against his campaign for election.
The ban against all political parties or organized groups of whatever
nature contained in par. 1 of Sec. 8(a), is confined to party or
organization support or assistance, whether material, moral, emotional
or otherwise. The very Sec. 8(a) in its provisos permits the candidate to
utilize in his campaign the help of the members of his family within the
fourth civil degree of consanguinity or affinity, and a campaign staff
composed of not more than one for every ten precincts in his district. It
allows the full exercise of his freedom of expression and his right to
peaceful assembly, because he cannot be denied any permit to hold a
public meeting on the pretext that the provision of said section may or
will be violated. The right of a member of any political party or
association to support him or oppose his opponent is preserved as
long as such member acts individually. The very party or organization
to which he may belong or which may be in sympathy with his cause or
program of reforms, is guaranteed the right to disseminate information
about, or to arouse public interest in, or to advocate for constitutional
reforms, programs, policies or constitutional proposals for
amendments.
20
It is therefore patent that the restriction contained in Sec. 8(a) is so
narrow that the basic constitutional rights themselves remain
substantially intact and inviolate. And it is therefore a valid infringement
of the aforesaid constitutional guarantees invoked by petitioners.
In the aforesaid case of Gonzales vs. Comelec, supra, this Court
unanimously sustained the validity of the limitation on the period for
nomination of candidates in Sec. 50-A of R.A. No. 4880, thus:
The prohibition of too early nomination of candidates presents a
question that is not too formidable in character. According to the act: "It
shall be unlawful for any political party, political committee, or political
group to nominate candidates for any elective public office voted for at
large earlier than one hundred and fifty days immediately preceding an
election, and for any other elective public office earlier than ninety days
immediately preceding an election.
The right of association is affected. Political parties have less freedom
as to the time during which they may nominate candidates; the
curtailment is not such, however, as to render meaningless such a
basic right. Their scope of legitimate activities, save this one, is not
unduly narrowed. Neither is there infringement of their freedom to
assemble. They can do so, but not for such a purpose. We sustain its
validity. We do so unanimously. 10
In said Gonzales vs. Comelec case, this Court likewise held that the
period for the conduct of an election campaign or partisan political
activity may be limited without offending the aforementioned
constitutional guarantees as the same is designed also to prevent a
"clear and present danger of a substantive evil, the debasement of the
electoral process." 11
Even if the partisan activity consists of (a) forming organizations,
associations, clubs, committees or other group of persons for the
purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a party or candidate; (b) holding political
other similar assemblies for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against any candidate
or party; and (c) giving, soliciting, or receiving contributions for election
campaign either directly or indirectly, (Sec. 50-B, pars. (a), (b), and (c),
R.A. 4880), the abridgment was still affirmed as constitutional by six
members of this Court, which could not "ignore ... the legislative
declaration that its enactment was in response to a serious substantive
evil affecting the electoral process, not merely in danger of happening,
but actually in existence, and likely to continue unless curbed or
remedied. To assert otherwise would be to close one's eyes to the
reality of the situation." 12;
Likewise, because four members dissented, this Court in said case of
Gonzales vs. Comelec, supra, failed to muster the required eight votes
to declare as unconstitutional the limitation on the period for (a) making
speeches, announcements or commentaries or holding interviews for
or against the election of any party or candidate for public office; (b)
publishing or distributing campaign literature or materials; and (e)
directly or indirectly soliciting votes and/or undertaking any campaign
or propaganda for or against any candidate or party specified in Sec.
50-B, pars. (c), (d) & (e) of R.A. 4880. 13
The debasement of the electoral process as a substantive evil exists
today and is one of the major compelling interests that moved
Congress into prescribing the total ban contained in par. 1 of Sec. 8(a)
of R.A. No. 6132, to justify such ban. In the said Gonzales vs. Comelec
case, this Court gave "due recognition to the legislative concern to
cleanse, and if possible, render spotless, the electoral process," 14
impressed as it was by the explanation made by the author of R.A. No.
4880, Sen. Lorenzo Tañada, who appeared as amicus curiae, "that
such provisions were deemed by the legislative body to be part and
parcel of the necessary and appropriate response not merely to a clear
and present danger but to the actual existence of a grave and
substantive evil of excessive partisanship, dishonesty and corruption
as well as violence that of late has marred election campaigns and
partisan political activities in this country. He did invite our attention
likewise to the well-settled doctrine that in the choice of remedies for
an admitted malady requiring governmental action, on the legislature
primarily rests the responsibility. Nor should the cure prescribed by it,
unless clearly repugnant to fundamental rights, be ignored or
disregarded." 15
But aside from the clear and imminent danger of the debasement of
the electoral process, as conceded by Senator Pelaez, the basic
motivation, according to Senate Majority Floor Leader Senator Arturo
Tolentino, the sponsor of the Puyat-Tolentino amendment embodied in
par. 1 of Sec. 8(a) of R.A. No. 6132, is to assure the candidates equal
protection of the laws by according them equality of chances. 16 The
primary purpose of the prohibition then is also to avert the clear and
present danger of another substantive evil, the denial of the equal
protection of the laws. The candidates must depend on their individual
merits and not on the support of political parties or organizations.
Senator Tolentino and Senator Salonga emphasized that under this
provision, the poor candidate has an even chance as against the rich
candidate. We are not prepared to disagree with them, because such a
conclusion, predicated as it is on empirical logic, finds support in our
recent political history and experience. Both Senators stressed that the
independent candidate who wins in the election against a candidate of
the major political parties, is a rare phenomenon in this country and the
victory of an independent candidate mainly rests on his ability to match
the resources, financial and otherwise, of the political parties or
organizations supporting his opponent. This position is further
strengthened by the principle that the guarantee of social justice under
Sec. V, Art. II of the Constitution, includes the guarantee of equal
opportunity, equality of political rights, and equality before the law
enunciated by Mr. Justice Tuazon in the case Guido vs. Rural Progress
Administration. 17
While it may be true that a party's support of a candidate is not wrong
per se it is equally true that Congress in the exercise of its broad law-
making authority can declare certain acts as mala prohibita when
justified by the exigencies of the times. One such act is the party or
organization support proscribed in Sec. 8(a),which ban is a valid
limitation on the freedom of association as well as expression, for the
reasons aforestated.
Senator Tolentino emphasized that "equality of chances may be better
attained by banning all organization support." 18
The questioned par. 1 of Sec. 8 (a) likewise can easily pass the
balancing-of-interest test. 19
In the apt words of the Solicitor General:
It is to be noted that right now the nation is on the threshold of rewriting
its Constitution in a hopeful endeavor to find a solution to the grave
economic, social and political problems besetting the country. Instead
of directly proposing the amendments Congress has chosen to call a
Constitutional Convention which shall have the task of fashioning a
document that shall embody the aspirations and ideals of the people.
Because what is to be amended is the fundamental law of the land, it is
indispensable that the Constitutional Convention be composed of
delegates truly representative of the people's will. Public welfare
demands that the delegates should speak for the entire nation, and
their voices be not those of a particular segment of the citizenry, or of a
particular class or group of people, be they religious, political, civic or
professional in character. Senator Pelaez, Chairman of the Senate
Committee on Codes and Constitutional Amendments, eloquently
stated that "the function of a constitution is not to represent anyone in
interest or set of interests, not to favor one group at the expense or
disadvantage of the candidates — but to encompass all the interests
that exist within our society and to blend them into one harmonious and
balanced whole. For the constitutional system means, not the
predominance of interests, but the harmonious balancing thereof."
So that the purpose for calling the Constitutional Convention will not be
deflated or frustrated, it is necessary that the delegatee thereto be
independent, beholden to no one but to God, country and conscience.
xxx xxx xxx
The evil therefore, which the law seeks to prevent lies in the election of
delegates who, because they have been chosen with the aid and
resources of organizations, cannot be expected to be sufficiently
representative of the people. Such delegates could very well be the
spokesmen of narrow political, religious or economic interest and not of
the great majority of the people. 20
We likewise concur with the Solicitor General that the equal protection
of the laws is not unduly subverted in par. I of Sec. 8(a); because it
does not create any hostile discrimination against any party or group
nor does it confer undue favor or privilege on an individual as
heretofore stated. The discrimination applies to all organizations,
whether political parties or social, civic, religious, or professional
associations. The ban is germane to the objectives of the law, which
are to avert the debasement of the electoral process, and to attain real
equality of chances among individual candidates and thereby make
real the guarantee of equal protection of the laws.
The political parties and the other organized groups have built-in
advantages because of their machinery and other facilities, which, the
individual candidate who is without any organization support, does not
have. The fact that the other civic of religious organizations cannot
have a campaign machinery as efficient as that of a political party,
does not vary the situation; because it still has that much built-in
advantage as against the individual candidate without similar support.
Moreover, these civic religious and professional organization may band
together to support common candidates, who advocates the reforms
that these organizations champion and believe are imperative. This is
admitted by petitioner Gonzales thru the letter of Senator Ganzon
dated August 17, 1970 attached to his petition as Annex "D", wherein
the Senator stated that his own "Timawa" group had agreed with the
Liberal Party in Iloilo to support petitioner Gonzales and two others as
their candidates for the convention, which organized support is nullified
by the questioned ban, Senator Ganzon stressed that "without the
group moving and working in joint collective effort" they cannot
"exercise effective control and supervision over our
21
leaders — the Women's League, the area commanders, etc."; but with
their joining with the LP's they "could have presented a solid front with
very bright chances of capturing all seats."
The civic associations other than political parties cannot with reason
insist that they should be exempted from the ban; because then by
such exemption they would be free to utilize the facilities of the
campaign machineries which they are denying to the political parties.
Whenever all organization engages in a political activity, as in this
campaign for election of delegates to the Constitutional Convention, to
that extent it partakes of the nature of a political organization. This,
despite the fact that the Constitution and by laws of such civic,
religious, or professional associations usually prohibit the association
from engaging in partisan political activity or supporting any candidate
for an elective office. Hence, they must likewise respect the ban.
The freedom of association also implies the liberty not to associate or
join with others or join any existing organization. A person may run
independently on his own merits without need of catering to a political
party or any other association for support. And he, as much as the
candidate whose candidacy does not evoke sympathy from any
political party or organized group, must be afforded equal chances. As
emphasized by Senators Tolentino and Salonga, this ban is to assure
equal chances to a candidate with talent and imbued with patriotism as
well as nobility of purpose, so that the country can utilize their services
if elected.
Impressed as We are by the eloquent and masterly exposition of
Senator Tañada for the invalidation of par. 1 of Sec. 8(a) of R.A. No.
6132, demonstrating once again his deep concern for the preservation
of our civil liberties enshrined in the Bill of Rights, We are not
persuaded to entertain the belief that the challenged ban transcends
the limits of constitutional invasion of such cherished immunities.
WHEREFORE, the prayers in both petitions are hereby denied and
R.A. No. 6132 including Secs. 2, 4, 5, and 8(a), paragraph 1, thereof,
cannot be declared unconstitutional. Without costs.
Reyes, J.B.L., Dizon and Castro, JJ., concur.
Makalintal, J., concurs in the result.
Teehankee, J., is on leave.
Separate Opinions
FERNANDO, J., concurring and dissenting:
The opinion of Justice Makasiar speaking for the Court, comprehensive
in scope, persuasive in character and lucid in expression, has much to
recommend it. On the whole, I concur. I find difficulty, however, in
accepting the conclusion that there is no basis for the challenge hurled
against the validity of this provision: "No candidate for delegate to the
Convention shall represent or allow himself to be represented as being
a candidate of any political party or any other organization, and no
political party, political group, political committee, civic, religious,
professional, or other organization or organized group of whatever
nature shall intervene in the nomination of any such candidate or in the
filing of his certificate of candidacy or give aid or support directly or
indirectly, material or otherwise, favorable to or against his campaign
for election: ..."1 It is with regret then that I dissent from that portion of
the decision.
1. I find it difficult to reconcile the decision reached insofar as
the aforesaid ban on political parties and civic, professional and other
organizations is concerned with the explicit provision that the freedom
to form associations or societies for purposes not contrary to law shall
not be abridged.2 The right of an individual to join others of a like
persuasion to pursue common objectives and to engage in activities is
embraced within if not actually encouraged by the regime of liberty
ordained by the Constitution. This particular freedom has an
indigenous cast, its origin being traceable to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such
character, it is the view of Justice Douglas, in a 1963 article, that it is
primarily the First Amendment of her Constitution, which safeguards
freedom of speech and of the press, of assembly and of petition "that
provides [associations] with the protection they need if they are to
remain viable and continue to contribute to our Free Society."3 Such is
indeed the case, for five years earlier the American Supreme Court
had already declared: "It is beyond debate that freedom to engage in
association for the advancement of beliefs and ideas is an inseparable
aspect of the "liberty" [embraced in] freedom of speech."4
Not long after, in 1965, Justice Douglas as; spokesman for the
American Supreme Court could elaborate further on the scope of the
right of association as including "the right to express one's attitudes or
philosophies by membership in a group or by affiliation with it or by
other lawful means, Association in that context is a form of expression
of opinion; and while it is not extremely included in the First
Amendment its existence is necessary in making the express
guarantees fully meaningful."5 Thus is further vitalized freedom of
expression which, for Justice Laurel, is at once the instrument" and the
guarantee and the bright consummate flower of all liberty"6 and, for
Justice Cardozo, "the matrix, the indispensable condition of nearly
every other form of freedom."7
2. It is in the light of the above fundamental postulates that I
find merit in the plea of petitioners to annul the challenged provision.
There is much to be said for the point emphatically stressed by Senator
Lorenzo M. Tañada, as amicus curiae, to the effect that there is
nothing unlawful in a candidate for delegate to the Convention
representing or allowing himself to be represented as such of any
political party or any other organization as well as of such political
party, political group, political committee, civic, religious, professional
or other organization or organized group intervening in his nomination,
in the filing of his certificate of candidacy, or giving aid or support,
directly or indirectly, material or otherwise, favorable to or against his
campaign for election as such delegate. I find the conclusion
inescapabe therefore, that what the constitutional provisions in
question allow, more specifically the right to form associations, is
prohibited. The infirmity of the ban is thus apparent on its face.
There is, to my mind, another avenue of approach that leads to the
same conclusion. The final proviso in the same section of the Act
forbids any construction that would in any wise "impair or abridge the
freedom of civic, political, religious, professional, trade organizations or
organized groups of whatever nature to disseminate information about,
or arouse public interest in, the forthcoming Constitutional Convention,
or to advocate constitutional reforms, programs, policies or proposals
for amendment of the present Constitution, and no prohibition
contained herein shall limit or curtail the right of their members, as long
as they act individually, to support or oppose any candidate for
delegate to the Constitutional Convention."8 It is regrettable that such
an explicit recognition of what cannot be forbidden consistently with the
constitutional guarantees of freedom of expression and freedom of
association falls short of according full respect to what is thus
commanded, by the fundamental law, as they are precluded by the
very same Act from giving aid or support precisely to the very
individuals who can carry out whatever constitutional reforms,
programs, policies or proposals for amendment they might advocate.
As thus viewed, the conviction I entertain as to its lack of validity is
further strengthened and fortified.
3. It would be a different matter, of course, if there is a clear
and present danger of a substantive evil that would justify a limitation
on such cherished freedoms. Reference has been made to Gonzales
v. Commission on Elections.9 As repression is permissible only when
the danger of substantive evil is present is explained by Justice
Branders thus: ... the evil apprehended is to imminent that it may befall
before there is opportunity for full discussion. If there be time to expose
through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not
enforced silence. For him the apprehended evil must be "relatively
serious." For "[prohibition] of free speech and assembly is a measure
so stringent that it would be inappropriate as the means for averting a
relatively trivial harm to society." Justice Black would go further. He
would require that the substantive evil be "extremely serious." Only
thus may there be a realization of the ideal envisioned by Cardozo:
"There shall be no compromise of the freedom to think one's thoughts
and speak them, except at those extreme borders where thought
merges into action." It received its original formulation from Holmes.
Thus: "The question in every case is whether the words used in such
circumstances are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity and degree." " 10
The majority of the Court would find the existence of a clear and
present danger of debasing the electoral process. With due respect, I
find myself unable to share such a view.
The assumption would, appear to be that there is a clear and present
danger of a grave substantive evil of partisanship running riot unless
political parties are thus restrained. There would be a sacrifice then of
the national interest involved. The Convention might not be able to live
up to the high hopes entertained for an improvement of the
fundamental law. It would appear though that what prompted such a
ban is to assure that the present majority party would not continue to
play its dominant role in the political life of the nation. The thought is
entertained that otherwise, we will not have a Convention truly
responsive to the needs of the hour and of the future insofar as they
may be anticipated.
To my mind, this is to lose sight of the fact that in the national elections
of 1946, 1953, 1961 and 1965, the presidency was won by the
opposition candidate. Moreover, in national elections for senators
alone, that of 1951, to mention only one instance, saw a complete
sweep of the field by the then minority party. It would be unjustifiable,
22
so I am led to believe to assume that inevitably the prevailing dominant
political party would continue its ascendancy in the coming Convention.
Then, too, the result of the plebiscite in the two proposed amendments
in 1967 indicate unmistakably that the people can, if so minded, make
their wishes prevail. There is thus no assurance that the mere
identification with party labels would automatically insure the success
of a candidacy. Even if it be assumed that to guard against the evils of
party spirit carried to excess, such a ban is called for, still no such
danger is presented by allowing civil, professional or any other
organization or organized group of whatever nature to field its own
candidates or give aid or support, directly or indirectly material or
otherwise, to anyone running for the Convention. From such a source,
no such misgivings or apprehension need arise. Nor it the fear that
organizations could hastily be assembled or put up to camouflage their
true colors as satellites of the political parties be valid. The electorate
can see through such schemes and can emphatically register its
reaction. There is, moreover, the further safeguard that whatever work
the Convention may propose is ultimately subject to popular
ratification.
For me then the danger of a substantive evil is neither clear nor
present. What causes me grave concern is that to guard against such
undesirable eventuality, which may not even come to pass, a flagrant
disregard of what the Constitution ordains is minimized. A desirable
end cannot be coerced by unconstitutional means.
4. It is not easy to yield assent to the proposition that on a
matter so essentially political as the amendment or revision of an
existing Constitution, political parties or political groups are to be
denied the opportunity of launching the candidacy of their choice. Well
has it been said by Chief Justice Hughes: "The greater the importance
of safeguarding the community from incitements to the overthrow of
our institutions by force and violence, the more imperative is the need
to preserve inviolate the constitutional rights of free speech, free press
and free assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the will of
the people and that changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very foundation of
constitutional government." 11 It is to carry this essential process one
step farther to recognize and to implement the right of every political
party or group to select the candidates who, by their election, could
translate into actuality their hopes for the fundamental law that the
times demand. Moreover, is it not in keeping with the rights to
intellectual freedom so sedulously safeguarded by the Constitution to
remove all obstacles to organized civic groups making their influence
felt in the task of constitution framing, the result of which has
momentuous implications for the nation? What is decisive of this
aspect of the matter is not the character of the association or organized
group as such but the essentially political activity thus carried out.
This is not to deny the wide latitude as to the choice of means vested
in Congress to attain a desirable goal. Nor can it be successfully
argued that the judiciary should display reluctance in extending
sympathy and understanding to such legislative determination. This is
merely to stress that however worthwhile the objective, the Constitution
must still be paid deference. Moreover, it may not be altogether
unrealistic to consider the practical effects of the ban as thus worded
as not lacking in effectivity insofar as civic, religious, professional or
other organizations or organized group is concerned, but not
necessarily so in the case of political party, political group or political
committee. There is the commendable admission by Senator
Tolentino, appearing as amicus curiae, that the political leaders of
stature, in their individual capacity, could continue to assert their
influence. It could very well happen, then, in not a few cases, assuming
the strength of political parties, that a candidate thus favored is sure of
emerging the victor. What is thus sought to be accomplished to guard
against the evil of party spirit prevailing could very well be doomed to
futility. The high hopes entertained by the articulate and vocal groups
of young people, intellectuals and workers, may not be realized. The
result would be that this unorthodox and novel provision could assume
the character of a tease, an illusion like a munificent bequest in a
pauper's will.
If such an appraisal is not unjustifiably tinged with pessimism, then, to
my mind, a radical approach to a problem possibly tainted with
constitutional infirmity cannot hurdle the judicial test as to its validity. It
is one thing to encourage a fresh and untried solution to a problem of
gravity when the probability of its success may be assumed. It is an
entirely different matter to cut down the exercise of what otherwise are
undeniable constitutional rights, when as in this case, the outcome
might belie expectations. Considering the well-settled principle that
even though the governmental process be legitimate and substantial,
they cannot be pursued by means that broadly stifle fundamental
personal liberties, if the end can be narrowly achieved, I am far from
being persuaded that to preclude political parties or other groups or
associations from lending aid and support to the candidates of men in
whom they can repose their trust is consistent with the constitutional
rights of freedom of association and freedom of expression. Here, the
danger of overbreadth, so clear and manifest as to be offensive to
constitutional standards, magnified by the probability that the result
would be the failure and not success of the statutory scheme, cautions
against the affixing of the imprimatur of judicial approval to the
challenged provision.
5. Necessarily then, from this mode of viewing the matter, it
would follow that the holding of this Court in Gonzales v. Comelec 12
does not compel the conclusion reached by the majority sustaining the
validity of this challenged provision. What survived the test of
constitutional validity in that case, with the Court unanimous in its
opinion, is the prohibition for any political party, political committee or
political group to nominate candidates for any elective public office
voted for at large earlier than 150 days immediately preceding election
and for any other public office earlier than 90 days immediately
preceding such election. 13 A corollary to the above limitation, the
provision making it unlawful for any person, whether or not a voter or
candidate, or for any group or association of persons, whether or not a
political party or political committee, to engage in an election campaign
or partisan political activity except during the above periods
successfully hurdled, the constitutional test, although the restrictions as
to the making of speeches, announcements or commentaries or
holding interviews for or against the election of any party or candidate
for public office or the publishing or distributing of campaign literature
or materials or the solicitation or undertaking any campaign or
propaganda for or against any candidate or party, directly or indirectly,
survived by the narrow margin of one vote, four members of this Court
unable to discern any constitutional infirmity as against the free speech
guarantee, thus resulting in failing to muster the necessary two-thirds
majority for a declaration of invalidity. Insofar as election campaign or
partisan political activity would limit or restrict the formation, of
organizations, associations, clubs, committees or other groups of
persons for the purpose of soliciting votes or undertaking any
campaign or propaganda for or against a party or candidate or, the
giving, soliciting, or receiving a contribution for election campaign
purposes, either directly or indirectly as well as the holding of political
conventions, caucuses, conferences, meetings, rallies, parades or
other similar assemblies, with a similar and in view, only five members
of this Court, a minority thereof voted, for their unconstitutionality. What
emerges clearly, then, is that definite acts short of preventing the
political parties from the choice of their candidates and thereafter
working for them in effect were considered by this Court as not
violative of the constitutional freedoms of speech, of press, of
assembly and of association.
The challenged provision in these two petitions, however, goes much
farther. Political parties or any other organization or organized group
are precluded from selecting and supporting candidates for delegates
to the Constitutional Convention. To my mind, this is to enter a
forbidden domain, Congress trespassing on a field hitherto rightfully
assumed to be within the sphere of liberty. Thus, I am unable to
conclude that our previous decision in Gonzales v. Commission on
Elections which already was indicative of the cautious and hesitant
judicial approach to lending its approval to what otherwise are
invasions of vital constitutional safeguards to freedoms of belief, of
expression, and of association lends support to the decision reached
by the majority insofar as this challenged provision is concerned.
Hence my inability to subscribe in its entirety to the opinion of the
Court. I am authorized to state that the Chief Justice is in agreement
with the views herein expressed.
Concepcion, C.J., Villamor and Zaldivar, JJ., concur.
BARREDO, J., concurring and dissenting:
Without prejudice to a more extended opinion, I vote, in concurrence
with the majority, to sustain the validity of the provisions of Republic
Act 6132 impugned by petitioners in these cases, except Section 4 and
the portion of Section 8(a) referring to political parties. As regards
Section 4, I reiterate my separate opinion in the cases of Subido and
others. (G.R. Nos. L-32436 and L-32439) With respect to Section 8(a),
I hold that the considerations which take the restraint on the freedoms
of association, assembly and speech involved in the ban on political
parties to nominate and support their own candidates, reasonable and
within the limits of the Constitution do not obtain when it comes to civic
or non-political organizations. As I see it, the said ban, insofar as civic
or non-political organizations are concerned, is a deceptive device to
preserve the built-in advantages of political parties while at the same
time crippling completely the other kinds of associations. The only way
to accomplish the purported objective of the law of equalizing the
forces that will campaign in behalf of the candidates to the
constitutional convention is to maintain said ban only as against
political parties, for after all, only the activities and manners of
operation of these parties and/or some of their members have made
necessary the imposition thereof. Under the resulting set up embodied
in the provision in question, the individual candidates who have never
had any political party connections or very little of it would be at an
obvious disadvantage unless they are allowed to seek and use the aid
of civic organizations. Neither the elaborate provisions of Republic Act
6132 regarding methods of campaign nor its other provisions intended
to minimize the participation of political parties in the electorate
processes of voting, counting of the votes and canvassing of the
results can overcome the advantages of candidates more or less
connected with political parties, particularly the major and established
ones, as long as the right to form other associations and the right of
23
these associations to campaign for their candidates are denied
considering particularly the shortness of the time that is left between
now and election day.
The issues involved in the coming elections are grave and fundamental
ones that are bound to affect the lives, rights and liberties of all the
people of this country most effectively, pervasively and permanently.
The only insurance of the people against political parties which may be
inclined towards the Establishment and the status quo is to organize
themselves to gain much needed strength and effectivity. To deny
them this right is to stifle the people's only opportunity for change.
It is axiomatic that issues, no matter how valid, if not related to
particular candidates in an organized way, similarly as in the use of
platforms by political parties, cannot have any chance of support and
final adoption. Both men and issues are important, but unrelated to
each other, each of them alone is insignificant, and the only way to
relate them is by organization. Precisely because the issues in this
election of candidates are of paramount importance second to none, it
is imperative that all of the freedoms enshrined in the constitution
should have the ampliest recognition for those who are minded to
actively battle for them and any attempt to curtail them would endanger
the very purposes for which a new constitutional convention has been
conceived.
Consistently with my separate opinion in the case of Gonzales and
Cabigao vs. Comelec, G.R. No. L-27833, April 18, 1969 and for the
reasons therein stated, I maintain that the right of suffrage which is the
cornerstone of any democracy like ours is meaningless when the right
to campaign in any election therein is unreasonably and unnecessarily
curtailed, restrained or hampered, as is being done under the statute in
dispute.
It is, of course, understood that this opinion is based on my considered
view, contrary to that of the majority, that as Section 8(a) stands and
taking into account its genesis, the ban against political parties is
separable from that against other associations within the contemplation
of Section 21 of the Act which expressly refers to the separability of the
application thereof to any "persons, groups or circumstances."
I reserve my right to expand this explanation of my vote in the next few
days.
# Separate Opinions
FERNANDO, J., concurring and dissenting:
The opinion of Justice Makasiar speaking for the Court, comprehensive
in scope, persuasive in character and lucid in expression, has much to
recommend it. On the whole, I concur. I find difficulty, however, in
accepting the conclusion that there is no basis for the challenge hurled
against the validity of this provision: "No candidate for delegate to the
Convention shall represent or allow himself to be represented as being
a candidate of any political party or any other organization, and no
political party, political group, political committee, civic, religious,
professional, or other organization or organized group of whatever
nature shall intervene in the nomination of any such candidate or in the
filing of his certificate of candidacy or give aid or support directly or
indirectly, material or otherwise, favorable to or against his campaign
for election: ..."1 It is with regret then that I dissent from that portion of
the decision.
1. I find it difficult to reconcile the decision reached insofar as
the aforesaid ban on political parties and civic, professional and other
organizations is concerned with the explicit provision that the freedom
to form associations or societies for purposes not contrary to law shall
not be abridged.2 The right of an individual to join others of a like
persuasion to pursue common objectives and to engage in activities is
embraced within if not actually encouraged by the regime of liberty
ordained by the Constitution. This particular freedom has an
indigenous cast, its origin being traceable to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such
character, it is the view of Justice Douglas, in a 1963 article, that it is
primarily the First Amendment of her Constitution, which safeguards
freedom of speech and of the press, of assembly and of petition "that
provides [associations] with the protection they need if they are to
remain viable and continue to contribute to our Free Society."3 Such is
indeed the case, for five years earlier the American Supreme Court
had already declared: "It is beyond debate that freedom to engage in
association for the advancement of beliefs and ideas is an inseparable
aspect of the "liberty" [embraced in] freedom of speech."4
Not long after, in 1965, Justice Douglas as; spokesman for the
American Supreme Court could elaborate further on the scope of the
right of association as including "the right to express one's attitudes or
philosophies by membership in a group or by affiliation with it or by
other lawful means, Association in that context is a form of expression
of opinion; and while it is not extremely included in the First
Amendment its existence is necessary in making the express
guarantees fully meaningful."5 Thus is further vitalized freedom of
expression which, for Justice Laurel, is at once the instrument" and the
guarantee and the bright consummate flower of all liberty"6 and, for
Justice Cardozo, "the matrix, the indispensable condition of nearly
every other form of freedom."7
2. It is in the light of the above fundamental postulates that I
find merit in the plea of petitioners to annul the challenged provision.
There is much to be said for the point emphatically stressed by Senator
Lorenzo M. Tañada, as amicus curiae, to the effect that there is
nothing unlawful in a candidate for delegate to the Convention
representing or allowing himself to be represented as such of any
political party or any other organization as well as of such political
party, political group, political committee, civic, religious, professional
or other organization or organized group intervening in his nomination,
in the filing of his certificate of candidacy, or giving aid or support,
directly or indirectly, material or otherwise, favorable to or against his
campaign for election as such delegate. I find the conclusion
inescapabe therefore, that what the constitutional provisions in
question allow, more specifically the right to form associations, is
prohibited. The infirmity of the ban is thus apparent on its face.
There is, to my mind, another avenue of approach that leads to the
same conclusion. The final proviso in the same section of the Act
forbids any construction that would in any wise "impair or abridge the
freedom of civic, political, religious, professional, trade organizations or
organized groups of whatever nature to disseminate information about,
or arouse public interest in, the forthcoming Constitutional Convention,
or to advocate constitutional reforms, programs, policies or proposals
for amendment of the present Constitution, and no prohibition
contained herein shall limit or curtail the right of their members, as long
as they act individually, to support or oppose any candidate for
delegate to the Constitutional Convention."8 It is regrettable that such
an explicit recognition of what cannot be forbidden consistently with the
constitutional guarantees of freedom of expression and freedom of
association falls short of according full respect to what is thus
commanded, by the fundamental law, as they are precluded by the
very same Act from giving aid or support precisely to the very
individuals who can carry out whatever constitutional reforms,
programs, policies or proposals for amendment they might advocate.
As thus viewed, the conviction I entertain as to its lack of validity is
further strengthened and fortified.
3. It would be a different matter, of course, if there is a clear
and present danger of a substantive evil that would justify a limitation
on such cherished freedoms. Reference has been made to Gonzales
v. Commission on Elections.9 As repression is permissible only when
the danger of substantive evil is present is explained by Justice
Branders thus: ... the evil apprehended is to imminent that it may befall
before there is opportunity for full discussion. If there be time to expose
through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not
enforced silence. For him the apprehended evil must be "relatively
serious." For "[prohibition] of free speech and assembly is a measure
so stringent that it would be inappropriate as the means for averting a
relatively trivial harm to society." Justice Black would go further. He
would require that the substantive evil be "extremely serious." Only
thus may there be a realization of the ideal envisioned by Cardozo:
"There shall be no compromise of the freedom to think one's thoughts
and speak them, except at those extreme borders where thought
merges into action." It received its original formulation from Holmes.
Thus: "The question in every case is whether the words used in such
circumstances are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity and degree." " 10
The majority of the Court would find the existence of a clear and
present danger of debasing the electoral process. With due respect, I
find myself unable to share such a view.
The assumption would, appear to be that there is a clear and present
danger of a grave substantive evil of partisanship running riot unless
political parties are thus restrained. There would be a sacrifice then of
the national interest involved. The Convention might not be able to live
up to the high hopes entertained for an improvement of the
fundamental law. It would appear though that what prompted such a
ban is to assure that the present majority party would not continue to
play its dominant role in the political life of the nation. The thought is
entertained that otherwise, we will not have a Convention truly
responsive to the needs of the hour and of the future insofar as they
may be anticipated.
To my mind, this is to lose sight of the fact that in the national elections
of 1946, 1953, 1961 and 1965, the presidency was won by the
opposition candidate. Moreover, in national elections for senators
alone, that of 1951, to mention only one instance, saw a complete
sweep of the field by the then minority party. It would be unjustifiable,
so I am led to believe to assume that inevitably the prevailing dominant
political party would continue its ascendancy in the coming Convention.
Then, too, the result of the plebiscite in the two proposed amendments
in 1967 indicate unmistakably that the people can, if so minded, make
their wishes prevail. There is thus no assurance that the mere
24
identification with party labels would automatically insure the success
of a candidacy. Even if it be assumed that to guard against the evils of
party spirit carried to excess, such a ban is called for, still no such
danger is presented by allowing civil, professional or any other
organization or organized group of whatever nature to field its own
candidates or give aid or support, directly or indirectly material or
otherwise, to anyone running for the Convention. From such a source,
no such misgivings or apprehension need arise. Nor it the fear that
organizations could hastily be assembled or put up to camouflage their
true colors as satellites of the political parties be valid. The electorate
can see through such schemes and can emphatically register its
reaction. There is, moreover, the further safeguard that whatever work
the Convention may propose is ultimately subject to popular
ratification.
For me then the danger of a substantive evil is neither clear nor
present. What causes me grave concern is that to guard against such
undesirable eventuality, which may not even come to pass, a flagrant
disregard of what the Constitution ordains is minimized. A desirable
end cannot be coerced by unconstitutional means.
4. It is not easy to yield assent to the proposition that on a
matter so essentially political as the amendment or revision of an
existing Constitution, political parties or political groups are to be
denied the opportunity of launching the candidacy of their choice. Well
has it been said by Chief Justice Hughes: "The greater the importance
of safeguarding the community from incitements to the overthrow of
our institutions by force and violence, the more imperative is the need
to preserve inviolate the constitutional rights of free speech, free press
and free assembly in order to maintain the opportunity for free political
discussion, to the end that government may be responsive to the will of
the people and that changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very foundation of
constitutional government." 11 It is to carry this essential process one
step farther to recognize and to implement the right of every political
party or group to select the candidates who, by their election, could
translate into actuality their hopes for the fundamental law that the
times demand. Moreover, is it not in keeping with the rights to
intellectual freedom so sedulously safeguarded by the Constitution to
remove all obstacles to organized civic groups making their influence
felt in the task of constitution framing, the result of which has
momentuous implications for the nation? What is decisive of this
aspect of the matter is not the character of the association or organized
group as such but the essentially political activity thus carried out.
This is not to deny the wide latitude as to the choice of means vested
in Congress to attain a desirable goal. Nor can it be successfully
argued that the judiciary should display reluctance in extending
sympathy and understanding to such legislative determination. This is
merely to stress that however worthwhile the objective, the Constitution
must still be paid deference. Moreover, it may not be altogether
unrealistic to consider the practical effects of the ban as thus worded
as not lacking in effectivity insofar as civic, religious, professional or
other organizations or organized group is concerned, but not
necessarily so in the case of political party, political group or political
committee. There is the commendable admission by Senator
Tolentino, appearing as amicus curiae, that the political leaders of
stature, in their individual capacity, could continue to assert their
influence. It could very well happen, then, in not a few cases, assuming
the strength of political parties, that a candidate thus favored is sure of
emerging the victor. What is thus sought to be accomplished to guard
against the evil of party spirit prevailing could very well be doomed to
futility. The high hopes entertained by the articulate and vocal groups
of young people, intellectuals and workers, may not be realized. The
result would be that this unorthodox and novel provision could assume
the character of a tease, an illusion like a munificent bequest in a
pauper's will.
If such an appraisal is not unjustifiably tinged with pessimism, then, to
my mind, a radical approach to a problem possibly tainted with
constitutional infirmity cannot hurdle the judicial test as to its validity. It
is one thing to encourage a fresh and untried solution to a problem of
gravity when the probability of its success may be assumed. It is an
entirely different matter to cut down the exercise of what otherwise are
undeniable constitutional rights, when as in this case, the outcome
might belie expectations. Considering the well-settled principle that
even though the governmental process be legitimate and substantial,
they cannot be pursued by means that broadly stifle fundamental
personal liberties, if the end can be narrowly achieved, I am far from
being persuaded that to preclude political parties or other groups or
associations from lending aid and support to the candidates of men in
whom they can repose their trust is consistent with the constitutional
rights of freedom of association and freedom of expression. Here, the
danger of overbreadth, so clear and manifest as to be offensive to
constitutional standards, magnified by the probability that the result
would be the failure and not success of the statutory scheme, cautions
against the affixing of the imprimatur of judicial approval to the
challenged provision.
5. Necessarily then, from this mode of viewing the matter, it
would follow that the holding of this Court in Gonzales v. Comelec 12
does not compel the conclusion reached by the majority sustaining the
validity of this challenged provision. What survived the test of
constitutional validity in that case, with the Court unanimous in its
opinion, is the prohibition for any political party, political committee or
political group to nominate candidates for any elective public office
voted for at large earlier than 150 days immediately preceding election
and for any other public office earlier than 90 days immediately
preceding such election. 13 A corollary to the above limitation, the
provision making it unlawful for any person, whether or not a voter or
candidate, or for any group or association of persons, whether or not a
political party or political committee, to engage in an election campaign
or partisan political activity except during the above periods
successfully hurdled, the constitutional test, although the restrictions as
to the making of speeches, announcements or commentaries or
holding interviews for or against the election of any party or candidate
for public office or the publishing or distributing of campaign literature
or materials or the solicitation or undertaking any campaign or
propaganda for or against any candidate or party, directly or indirectly,
survived by the narrow margin of one vote, four members of this Court
unable to discern any constitutional infirmity as against the free speech
guarantee, thus resulting in failing to muster the necessary two-thirds
majority for a declaration of invalidity. Insofar as election campaign or
partisan political activity would limit or restrict the formation, of
organizations, associations, clubs, committees or other groups of
persons for the purpose of soliciting votes or undertaking any
campaign or propaganda for or against a party or candidate or, the
giving, soliciting, or receiving a contribution for election campaign
purposes, either directly or indirectly as well as the holding of political
conventions, caucuses, conferences, meetings, rallies, parades or
other similar assemblies, with a similar and in view, only five members
of this Court, a minority thereof voted, for their unconstitutionality. What
emerges clearly, then, is that definite acts short of preventing the
political parties from the choice of their candidates and thereafter
working for them in effect were considered by this Court as not
violative of the constitutional freedoms of speech, of press, of
assembly and of association.
The challenged provision in these two petitions, however, goes much
farther. Political parties or any other organization or organized group
are precluded from selecting and supporting candidates for delegates
to the Constitutional Convention. To my mind, this is to enter a
forbidden domain, Congress trespassing on a field hitherto rightfully
assumed to be within the sphere of liberty. Thus, I am unable to
conclude that our previous decision in Gonzales v. Commission on
Elections which already was indicative of the cautious and hesitant
judicial approach to lending its approval to what otherwise are
invasions of vital constitutional safeguards to freedoms of belief, of
expression, and of association lends support to the decision reached
by the majority insofar as this challenged provision is concerned.
Hence my inability to subscribe in its entirety to the opinion of the
Court. I am authorized to state that the Chief Justice is in agreement
with the views herein expressed.
Concepcion, C.J., Villamor and Zaldivar, JJ., concur.
BARREDO, J., concurring and dissenting:
Without prejudice to a more extended opinion, I vote, in concurrence
with the majority, to sustain the validity of the provisions of Republic
Act 6132 impugned by petitioners in these cases, except Section 4 and
the portion of Section 8(a) referring to political parties. As regards
Section 4, I reiterate my separate opinion in the cases of Subido and
others. (G.R. Nos. L-32436 and L-32439) With respect to Section 8(a),
I hold that the considerations which take the restraint on the freedoms
of association, assembly and speech involved in the ban on political
parties to nominate and support their own candidates, reasonable and
within the limits of the Constitution do not obtain when it comes to civic
or non-political organizations. As I see it, the said ban, insofar as civic
or non-political organizations are concerned, is a deceptive device to
preserve the built-in advantages of political parties while at the same
time crippling completely the other kinds of associations. The only way
to accomplish the purported objective of the law of equalizing the
forces that will campaign in behalf of the candidates to the
constitutional convention is to maintain said ban only as against
political parties, for after all, only the activities and manners of
operation of these parties and/or some of their members have made
necessary the imposition thereof. Under the resulting set up embodied
in the provision in question, the individual candidates who have never
had any political party connections or very little of it would be at an
obvious disadvantage unless they are allowed to seek and use the aid
of civic organizations. Neither the elaborate provisions of Republic Act
6132 regarding methods of campaign nor its other provisions intended
to minimize the participation of political parties in the electorate
processes of voting, counting of the votes and canvassing of the
results can overcome the advantages of candidates more or less
connected with political parties, particularly the major and established
ones, as long as the right to form other associations and the right of
these associations to campaign for their candidates are denied
considering particularly the shortness of the time that is left between
now and election day.
The issues involved in the coming elections are grave and fundamental
ones that are bound to affect the lives, rights and liberties of all the
people of this country most effectively, pervasively and permanently.
25
The only insurance of the people against political parties which may be
inclined towards the Establishment and the status quo is to organize
themselves to gain much needed strength and effectivity. To deny
them this right is to stifle the people's only opportunity for change.
It is axiomatic that issues, no matter how valid, if not related to
particular candidates in an organized way, similarly as in the use of
platforms by political parties, cannot have any chance of support and
final adoption. Both men and issues are important, but unrelated to
each other, each of them alone is insignificant, and the only way to
relate them is by organization. Precisely because the issues in this
election of candidates are of paramount importance second to none, it
is imperative that all of the freedoms enshrined in the constitution
should have the ampliest recognition for those who are minded to
actively battle for them and any attempt to curtail them would endanger
the very purposes for which a new constitutional convention has been
conceived.
Consistently with my separate opinion in the case of Gonzales and
Cabigao vs. Comelec, G.R. No. L-27833, April 18, 1969 and for the
reasons therein stated, I maintain that the right of suffrage which is the
cornerstone of any democracy like ours is meaningless when the right
to campaign in any election therein is unreasonably and unnecessarily
curtailed, restrained or hampered, as is being done under the statute in
dispute.
It is, of course, understood that this opinion is based on my considered
view, contrary to that of the majority, that as Section 8(a) stands and
taking into account its genesis, the ban against political parties is
separable from that against other associations within the contemplation
of Section 21 of the Act which expressly refers to the separability of the
application thereof to any "persons, groups or circumstances."
I reserve my right to expand this explanation of my vote in the next few
days.
G.R. No. L-28196 November 9, 1967
RAMON A. GONZALES, petitioner,
vs.
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and
AUDITOR GENERAL, respondents.
G.R. No. L-28224 November 9, 1967
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
No. 28196:
Ramon A. Gonzales for and in his own behalf as petitioner.
Juan T. David as amicus curiae
Office of the Solicitor General for respondents.
No. 28224:
Salvador Araneta for petitioner.
Office of the Solicitor General for respondent.
CONCEPCION, C.J.:
G. R. No. L-28196 is an original action for prohibition, with preliminary
injunction.
Petitioner therein prays for judgment:
1) Restraining: (a) the Commission on Elections from enforcing
Republic Act No. 4913, or from performing any act that will result in the
holding of the plebiscite for the ratification of the constitutional
amendments proposed in Joint Resolutions Nos. 1 and 3 of the two
Houses of Congress of the Philippines, approved on March 16, 1967;
(b) the Director of Printing from printing ballots, pursuant to said Act
and Resolutions; and (c) the Auditor General from passing in audit any
disbursement from the appropriation of funds made in said Republic
Act No. 4913; and
2) declaring said Act unconstitutional and void.
The main facts are not disputed. On March 16, 1967, the Senate and
the House of Representatives passed the following resolutions:
1. R. B. H. (Resolution of Both Houses) No. 1, proposing that
Section 5, Article VI, of the Constitution of the Philippines, be amended
so as to increase the membership of the House of Representatives
from a maximum of 120, as provided in the present Constitution, to a
maximum of 180, to be apportioned among the several provinces as
nearly as may be according to the number of their respective
inhabitants, although each province shall have, at least, one (1)
member;
2. R. B. H. No. 2, calling a convention to propose amendments
to said Constitution, the convention to be composed of two (2) elective
delegates from each representative district, to be "elected in the
general elections to be held on the second Tuesday of November,
1971;" and
3. R. B. H. No. 3, proposing that Section 16, Article VI, of the
same Constitution, be amended so as to authorize Senators and
members of the House of Representatives to become delegates to the
aforementioned constitutional convention, without forfeiting their
respective seats in Congress.
Subsequently, Congress passed a bill, which, upon approval by the
President, on June 17, 1967, became Republic Act No. 4913, providing
that the amendments to the Constitution proposed in the
aforementioned Resolutions No. 1 and 3 be submitted, for approval by
the people, at the general elections which shall be held on November
14, 1967.
The petition in L-28196 was filed on October 21, 1967. At the hearing
thereof, on October 28, 1967, the Solicitor General appeared on behalf
of respondents. Moreover, Atty. Juan T. David and counsel for the
Philippine Constitution Association — hereinafter referred to as the
PHILCONSA — were allowed to argue as amici curiae. Said counsel
for the PHILCONSA, Dr. Salvador Araneta, likewise prayed that the
decision in this case be deferred until after a substantially identical
case brought by said organization before the Commission on
Elections,1 which was expected to decide it any time, and whose
decision would, in all probability, be appealed to this Court — had been
submitted thereto for final determination, for a joint decision on the
identical issues raised in both cases. In fact, on October 31, 1967, the
PHILCONSA filed with this Court the petition in G. R. No. L-28224, for
review by certiorari of the resolution of the Commission on Elections2
dismissing the petition therein. The two (2) cases were deemed
submitted for decision on November 8, 1967, upon the filing of the
answer of respondent, the memorandum of the petitioner and the reply
memorandum of respondent in L-28224.
Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino
citizen, a taxpayer, and a voter. He claims to have instituted case L-
28196 as a class unit, for and in behalf of all citizens, taxpayers, and
voters similarly situated. Although respondents and the Solicitor
General have filed an answer denying the truth of this allegation, upon
the ground that they have no knowledge or information to form a belief
as to the truth thereof, such denial would appear to be a perfunctory
one. In fact, at the hearing of case L-28196, the Solicitor General
expressed himself in favor of a judicial determination of the merits of
the issued raised in said case.
The PHILCONSA, petitioner in L-28224, is admittedly a corporation
duly organized and existing under the laws of the Philippines, and a
civic, non-profit and non-partisan organization the objective of which is
to uphold the rule of law in the Philippines and to defend its
Constitution against erosions or onslaughts from whatever source.
Despite his aforementioned statement in L-28196, in his answer in L-
28224 the Solicitor General maintains that this Court has no jurisdiction
over the subject-matter of L-28224, upon the ground that the same is
"merely political" as held in Mabanag vs. Lopez Vito.3 Senator Arturo
M. Tolentino, who appeared before the Commission on Elections and
filed an opposition to the PHILCONSA petition therein, was allowed to
appear before this Court and objected to said petition upon the ground:
a) that the Court has no jurisdiction either to grant the relief sought in
the petition, or to pass upon the legality of the composition of the
House of Representatives; b) that the petition, if granted, would, in
effect, render in operational the legislative department; and c) that "the
failure of Congress to enact a valid reapportionment law . . . does not
have the legal effect of rendering illegal the House of Representatives
elected thereafter, nor of rendering its acts null and void."
JURISDICTION
As early as Angara vs. Electoral Commission,4 this Court — speaking
through one of the leading members of the Constitutional Convention
and a respected professor of Constitutional Law, Dr. Jose P. Laurel —
declared that "the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or
constituent units thereof." It is true that in Mabanag vs. Lopez Vito,5
this Court characterizing the issue submitted thereto as a political one,
declined to pass upon the question whether or not a given number of
votes cast in Congress in favor of a proposed amendment to the
Constitution — which was being submitted to the people for ratification
— satisfied the three-fourths vote requirement of the fundamental law.
The force of this precedent has been weakened, however, by Suanes
vs. Chief Accountant of the Senate,6 Avelino vs. Cuenco,7 Tañada vs.
Cuenco,8 and Macias vs. Commission on Elections.9 In the first, we
held that the officers and employees of the Senate Electoral Tribunal
are under its supervision and control, not of that of the Senate
President, as claimed by the latter; in the second, this Court proceeded
to determine the number of Senators necessary for a quorum in the
Senate; in the third, we nullified the election, by Senators belonging to
the party having the largest number of votes in said chamber,
purporting to act on behalf of the party having the second largest
number of votes therein, of two (2) Senators belonging to the first
party, as members, for the second party, of the, Senate Electoral
26
Tribunal; and in the fourth, we declared unconstitutional an act of
Congress purporting to apportion the representative districts for the
House of Representatives, upon the ground that the apportionment
had not been made as may be possible according to the number of
inhabitants of each province. Thus we rejected the theory, advanced in
these four (4) cases, that the issues therein raised were political
questions the determination of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative
powers to Congress.10 It is part of the inherent powers of the people
— as the repository of sovereignty in a republican state, such as
ours11 — to make, and, hence, to amend their own Fundamental Law.
Congress may propose amendments to the Constitution merely
because the same explicitly grants such power.12 Hence, when
exercising the same, it is said that Senators and Members of the
House of Representatives act, not as members of Congress, but as
component elements of a constituent assembly. When acting as such,
the members of Congress derive their authority from the Constitution,
unlike the people, when performing the same function,13 for their
authority does not emanate from the Constitution — they are the very
source of all powers of government, including the Constitution itself .
Since, when proposing, as a constituent assembly, amendments to the
Constitution, the members of Congress derive their authority from the
Fundamental Law, it follows, necessarily, that they do not have the
final say on whether or not their acts are within or beyond constitutional
limits. Otherwise, they could brush aside and set the same at naught,
contrary to the basic tenet that ours is a government of laws, not of
men, and to the rigid nature of our Constitution. Such rigidity is
stressed by the fact that, the Constitution expressly confers upon the
Supreme Court,14 the power to declare a treaty unconstitutional,15
despite the eminently political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress — acting
as a constituent assembly — violates the Constitution essentially
justiciable, not political, and, hence, subject to judicial review, and, to
the extent that this view may be inconsistent with the stand taken in
Mabanag vs. Lopez Vito,16 the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.
THE MERITS
Section 1 of Article XV of the Constitution, as amended, reads:
The Congress in joint session assembled by a vote of three-fourths of
all the Members of the Senate and of the House of Representatives
voting separately, may propose amendments to this Constitution or call
a convention for that purpose. Such amendments shall be valid as part
of this Constitution when approved by a majority of the votes cast at an
election at which the amendments are submitted to the people for their
ratification.
Pursuant to this provision, amendments to the Constitution may be
proposed, either by Congress, or by a convention called by Congress
for that purpose. In either case, the vote of "three-fourths of all the
members of the Senate and of the House of Representatives voting
separately" is necessary. And, "such amendments shall be valid as
part of" the "Constitution when approved by a majority of the votes cast
at an election at which the amendments are submitted to the people for
their ratification."
In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have
been approved by a vote of three-fourths of all the members of the
Senate and of the House of Representatives voting separately. This,
notwithstanding, it is urged that said resolutions are null and void
because:
1. The Members of Congress, which approved the proposed
amendments, as well as the resolution calling a convention to propose
amendments, are, at best, de facto Congressmen;
2. Congress may adopt either one of two alternatives propose
— amendments or call a convention therefore but may not avail of both
— that is to say, propose amendment and call a convention — at the
same time;
3. The election, in which proposals for amendment to the
Constitution shall be submitted for ratification, must be a special
election, not a general election, in which officers of the national and
local governments — such as the elections scheduled to be held on
November 14, 1967 — will be chosen; and
4. The spirit of the Constitution demands that the election, in
which proposals for amendment shall be submitted to the people for
ratification, must be held under such conditions — which, allegedly, do
not exist — as to give the people a reasonable opportunity to have a
fair grasp of the nature and implications of said amendments.
Legality of Congress and Legal Status of the Congressmen
The first objection is based upon Section 5, Article VI, of the
Constitution, which provides:

The House of Representatives shall be composed of not more than
one hundred and twenty Members who shall be apportioned among
the several provinces as nearly as may be according to the number of
their respective inhabitants, but each province shall have at least one
Member. The Congress shall by law make an apportionment within
three years after the return of every enumeration, and not otherwise.
Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that fixed
by law for the National Assembly, who shall be elected by the qualified
electors from the present Assembly districts. Each representative
district shall comprise, as far as practicable, contiguous and compact
territory.
It is urged that the last enumeration or census took place in 1960; that,
no apportionment having been made within three (3) years thereafter,
the Congress of the Philippines and/or the election of its Members
became illegal; that Congress and its Members, likewise, became a de
facto Congress and/or de facto congressmen, respectively; and that,
consequently, the disputed Resolutions, proposing amendments to the
Constitution, as well as Republic Act No. 4913, are null and void.
It is not true, however, that Congress has not made an apportionment
within three years after the enumeration or census made in 1960. It did
actually pass a bill, which became Republic Act No. 3040,17 purporting
to make said apportionment. This Act was, however, declared
unconstitutional, upon the ground that the apportionment therein
undertaken had not been made according to the number of inhabitants
of the different provinces of the Philippines.18
Moreover, we are unable to agree with the theory that, in view of the
failure of Congress to make a valid apportionment within the period
stated in the Constitution, Congress became an "unconstitutional
Congress" and that, in consequence thereof, the Members of its House
of Representatives are de facto officers. The major premise of this
process of reasoning is that the constitutional provision on
"apportionment within three years after the return of every
enumeration, and not otherwise," is mandatory. The fact that Congress
is under legal obligation to make said apportionment does not justify,
however, the conclusion that failure to comply with such obligation
rendered Congress illegal or unconstitutional, or that its Members have
become de facto officers.
It is conceded that, since the adoption of the Constitution in 1935,
Congress has not made a valid apportionment as required in said
fundamental law. The effect of this omission has been envisioned in
the Constitution, pursuant to which:
. . . Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that fixed
by law for the National Assembly, who shall be elected by the qualified
electors from the present Assembly districts. . . . .
The provision does not support the view that, upon the expiration of the
period to make the apportionment, a Congress which fails to make it is
dissolved or becomes illegal. On the contrary, it implies necessarily
that Congress shall continue to function with the representative districts
existing at the time of the expiration of said period.
It is argued that the above-quoted provision refers only to the elections
held in 1935. This theory assumes that an apportionment had to be
made necessarily before the first elections to be held after the
inauguration of the Commonwealth of the Philippines, or in 1938.19
The assumption, is, however, unwarranted, for there had been no
enumeration in 1935, and nobody could foretell when it would be
made. Those who drafted and adopted the Constitution in 1935 could
be certain, therefore, that the three-year period, after the earliest
possible enumeration, would expire after the elections in 1938.
What is more, considering that several provisions of the Constitution,
particularly those on the legislative department, were amended in
1940, by establishing a bicameral Congress, those who drafted and
adopted said amendment, incorporating therein the provision of the
original Constitution regarding the apportionment of the districts for
representatives, must have known that the three-year period therefor
would expire after the elections scheduled to be held and actually held
in 1941.
Thus, the events contemporaneous with the framing and ratification of
the original Constitution in 1935 and of the amendment thereof in 1940
strongly indicate that the provision concerning said apportionment and
the effect of the failure to make it were expected to be applied to
conditions obtaining after the elections in 1935 and 1938, and even
after subsequent elections.
Then again, since the report of the Director of the Census on the last
enumeration was submitted to the President on November 30, 1960, it
follows that the three-year period to make the apportionment did not
expire until 1963, or after the Presidential elections in 1961. There can
be no question, therefore, that the Senate and the House of
Representatives organized or constituted on December 30, 1961, were
de jure bodies, and that the Members thereof were de jure officers.
27
Pursuant to the theory of petitioners herein, upon expiration of said
period of three years, or late in 1963, Congress became illegal and its
Members, or at least, those of the House of Representatives, became
illegal holder of their respective offices, and were de facto officers.
Petitioners do not allege that the expiration of said three-year period
without a reapportionment, had the effect of abrogating or repealing the
legal provision creating Congress, or, at least, the House of
Representatives, and are not aware of any rule or principle of law that
would warrant such conclusion. Neither do they allege that the term of
office of the members of said House automatically expired or that they
ipso facto forfeited their seats in Congress, upon the lapse of said
period for reapportionment. In fact, neither our political law, nor our law
on public officers, in particular, supports the view that failure to
discharge a mandatory duty, whatever it may be, would automatically
result in the forfeiture of an office, in the absence of a statute to this
effect.
Similarly, it would seem obvious that the provision of our Election Law
relative to the election of Members of Congress in 1965 were not
repealed in consequence of the failure of said body to make an
apportionment within three (3) years after the census of 1960.
Inasmuch as the general elections in 1965 were presumably held in
conformity with said Election Law, and the legal provisions creating
Congress — with a House of Representatives composed of members
elected by qualified voters of representative districts as they existed at
the time of said elections — remained in force, we can not see how
said Members of the House of Representatives can be regarded as de
facto officers owing to the failure of their predecessors in office to make
a reapportionment within the period aforementioned.
Upon the other hand, the Constitution authorizes the impeachment of
the President, the Vice-President, the Justices of the Supreme Court
and the Auditor General for, inter alia, culpable violation of the
Constitution,20 the enforcement of which is, not only their mandatory
duty, but also, their main function. This provision indicates that, despite
the violation of such mandatory duty, the title to their respective offices
remains unimpaired, until dismissal or ouster pursuant to a judgment of
conviction rendered in accordance with Article IX of the Constitution. In
short, the loss of office or the extinction of title thereto is not automatic.
Even if we assumed, however, that the present Members of Congress
are merely de facto officers, it would not follow that the contested
resolutions and Republic Act No. 4913 are null and void. In fact, the
main reasons for the existence of the de facto doctrine is that public
interest demands that acts of persons holding, under color of title, an
office created by a valid statute be, likewise, deemed valid insofar as
the public — as distinguished from the officer in question — is
concerned.21 Indeed, otherwise, those dealing with officers and
employees of the Government would be entitled to demand from them
satisfactory proof of their title to the positions they hold, before dealing
with them, or before recognizing their authority or obeying their
commands, even if they should act within the limits of the authority
vested in their respective offices, positions or employments.22 One
can imagine this great inconvenience, hardships and evils that would
result in the absence of the de facto doctrine.
As a consequence, the title of a de facto officer cannot be assailed
collaterally.23 It may not be contested except directly, by quo warranto
proceedings. Neither may the validity of his acts be questioned upon
the ground that he is merely a de facto officer.24 And the reasons are
obvious: (1) it would be an indirect inquiry into the title to the office; and
(2) the acts of a de facto officer, if within the competence of his office,
are valid, insofar as the public is concerned.
It is argued that the foregoing rules do not apply to the cases at bar
because the acts therein involved have not been completed and
petitioners herein are not third parties. This pretense is untenable. It is
inconsistent with Tayko vs. Capistrano.25 In that case, one of the
parties to a suit being heard before Judge Capistrano objected to his
continuing to hear the case, for the reason that, meanwhile, he had
reached the age of retirement. This Court held that the objection could
not be entertained, because the Judge was at least, a de facto Judge,
whose title can not be assailed collaterally. It should be noted that
Tayko was not a third party insofar as the Judge was concerned.
Tayko was one of the parties in the aforementioned suit. Moreover,
Judge Capistrano had not, as yet, finished hearing the case, much less
rendered decision therein. No rights had vested in favor of the parties,
in consequence of the acts of said Judge. Yet, Tayko's objection was
overruled. Needless to say, insofar as Congress is concerned, its acts,
as regards the Resolutions herein contested and Republic Act No.
4913, are complete. Congress has nothing else to do in connection
therewith.
The Court is, also, unanimous in holding that the objection under
consideration is untenable.
Available Alternatives to Congress
Atty. Juan T. David, as amicus curiae, maintains that Congress may
either propose amendments to the Constitution or call a convention for
that purpose, but it can not do both, at the same time. This theory is
based upon the fact that the two (2) alternatives are connected in the
Constitution by the disjunctive "or." Such basis is, however, a weak
one, in the absence of other circumstances — and none has brought to
our attention — supporting the conclusion drawn by the amicus curiae.
In fact, the term "or" has, oftentimes, been held to mean "and," or vice-
versa, when the spirit or context of the law warrants it.26
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments
to the constitutional provision on Congress, to be submitted to the
people for ratification on November 14, 1967, whereas R. B. H. No. 2
calls for a convention in 1971, to consider proposals for amendment to
the Constitution, in general. In other words, the subject-matter of R. B.
H. No. 2 is different from that of R B. H. Nos. 1 and 3. Moreover, the
amendments proposed under R. B. H. Nos. 1 and 3, will be submitted
for ratification several years before those that may be proposed by the
constitutional convention called in R. B. H. No. 2. Again, although the
three (3) resolutions were passed on the same date, they were taken
up and put to a vote separately, or one after the other. In other words,
they were not passed at the same time.
In any event, we do not find, either in the Constitution, or in the history
thereof anything that would negate the authority of different
Congresses to approve the contested Resolutions, or of the same
Congress to pass the same in, different sessions or different days of
the same congressional session. And, neither has any plausible reason
been advanced to justify the denial of authority to adopt said
resolutions on the same day.
Counsel ask: Since Congress has decided to call a constitutional
convention to propose amendments, why not let the whole thing be
submitted to said convention, instead of, likewise, proposing some
specific amendments, to be submitted for ratification before said
convention is held? The force of this argument must be conceded. but
the same impugns the wisdom of the action taken by Congress, not its
authority to take it. One seeming purpose thereof to permit Members of
Congress to run for election as delegates to the constitutional
convention and participate in the proceedings therein, without forfeiting
their seats in Congress. Whether or not this should be done is a
political question, not subject to review by the courts of justice.
On this question there is no disagreement among the members of the
Court.
May Constitutional Amendments Be Submitted for Ratification in a
General Election?
Article XV of the Constitution provides:
. . . The Congress in joint session assembled, by a vote of three-
fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to this
Constitution or call a contention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted
to the people for their ratification.
There is in this provision nothing to indicate that the "election" therein
referred to is a "special," not a general, election. The circumstance that
three previous amendments to the Constitution had been submitted to
the people for ratification in special elections merely shows that
Congress deemed it best to do so under the circumstances then
obtaining. It does not negate its authority to submit proposed
amendments for ratification in general elections.
It would be better, from the viewpoint of a thorough discussion of the
proposed amendments, that the same be submitted to the people's
approval independently of the election of public officials. And there is
no denying the fact that an adequate appraisal of the merits and
demerits proposed amendments is likely to be overshadowed by the
great attention usually commanded by the choice of personalities
involved in general elections, particularly when provincial and
municipal officials are to be chosen. But, then, these considerations
are addressed to the wisdom of holding a plebiscite simultaneously
with the election of public officer. They do not deny the authority of
Congress to choose either alternative, as implied in the term "election"
used, without qualification, in the abovequoted provision of the
Constitution. Such authority becomes even more patent when we
consider: (1) that the term "election," normally refers to the choice or
selection of candidates to public office by popular vote; and (2) that the
word used in Article V of the Constitution, concerning the grant of
suffrage to women is, not "election," but "plebiscite."
Petitioners maintain that the term "election," as used in Section 1 of
Art. XV of the Constitution, should be construed as meaning a special
election. Some members of the Court even feel that said term
("election") refers to a "plebiscite," without any "election," general or
special, of public officers. They opine that constitutional amendments
are, in general, if not always, of such important, if not transcendental
and vital nature as to demand that the attention of the people be
focused exclusively on the subject-matter thereof, so that their votes
thereon may reflect no more than their intelligent, impartial and
considered view on the merits of the proposed amendments,
unimpaired, or, at least, undiluted by extraneous, if not insidious
28
factors, let alone the partisan political considerations that are likely to
affect the selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the attainment
of which should be promoted. The ideal conditions are, however, one
thing. The question whether the Constitution forbids the submission of
proposals for amendment to the people except under such conditions,
is another thing. Much as the writer and those who concur in this
opinion admire the contrary view, they find themselves unable to
subscribe thereto without, in effect, reading into the Constitution what
they believe is not written thereon and can not fairly be deduced from
the letter thereof, since the spirit of the law should not be a matter of
sheer speculation.
The majority view — although the votes in favor thereof are insufficient
to declare Republic Act No. 4913 unconstitutional — as ably set forth in
the opinion penned by Mr. Justice Sanchez, is, however, otherwise.
Would the Submission now of the Contested Amendments to the
People Violate the Spirit of the Constitution?
It should be noted that the contested Resolutions were approved on
March 16, 1967, so that, by November 14, 1967, our citizenry shall
have had practically eight (8) months to be informed on the
amendments in question. Then again, Section 2 of Republic Act No.
4913 provides:
(1) that "the amendments shall be published in three
consecutive issues of the Official Gazette, at least twenty days prior to
the election;"
(2) that "a printed copy of the proposed amendments shall be
posted in a conspicuous place in every municipality, city and provincial
office building and in every polling place not later than October 14,
1967," and that said copy "shall remain posted therein until after the
election;"
(3) that "at least five copies of said amendment shall be kept in
each polling place, to be made available for examination by the
qualified electors during election day;"
(4) that "when practicable, copies in the principal native
languages, as may be determined by the Commission on Elections,
shall be kept in each polling place;"
(5) that "the Commission on Elections shall make available
copies of said amendments in English, Spanish and, whenever
practicable, in the principal native languages, for free distributing:" and
(6) that the contested Resolutions "shall be printed in full" on the
back of the ballots which shall be used on November 14, 1967.
We are not prepared to say that the foregoing measures are palpably
inadequate to comply with the constitutional requirement that proposals
for amendment be "submitted to the people for their ratification," and
that said measures are manifestly insufficient, from a constitutional
viewpoint, to inform the people of the amendment sought to be made.
These were substantially the same means availed of to inform the
people of the subject submitted to them for ratification, from the original
Constitution down to the Parity Amendment. Thus, referring to the
original Constitution, Section 1 of Act No. 4200, provides:
Said Constitution, with the Ordinance appended thereto, shall be
published in the Official Gazette, in English and in Spanish, for three
consecutive issues at least fifteen days prior to said election, and a
printed copy of said Constitution, with the Ordinance appended thereto,
shall be posted in a conspicuous place in each municipal and
provincial government office building and in each polling place not later
than the twenty-second day of April, nineteen hundred and thirty-five,
and shall remain posted therein continually until after the termination of
the election. At least ten copies of the Constitution with the Ordinance
appended thereto, in English and in Spanish, shall be kept at each
polling place available for examination by the qualified electors during
election day. Whenever practicable, copies in the principal local
dialects as may be determined by the Secretary of the Interior shall
also be kept in each polling place.
The provision concerning woman's suffrage is Section 1 of
Commonwealth Act No. 34, reading:
Said Article V of the Constitution shall be published in the Official
Gazette, in English and in Spanish, for three consecutive issues at
least fifteen days prior to said election, and the said Article V shall be
posted in a conspicuous place in each municipal and provincial office
building and in each polling place not later than the twenty-second day
of April, nineteen and thirty-seven, and shall remain posted therein
continually until after the termination of the plebiscite. At least ten
copies of said Article V of the Constitution, in English and in Spanish,
shall be kept at each polling place available for examination by the
qualified electors during the plebiscite. Whenever practicable, copies in
the principal native languages, as may be determined by the Secretary
of the Interior, shall also be kept in each polling place.

Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940
amendments, is of the following tenor:
The said amendments shall be published in English and Spanish in
three consecutive issues of the Official Gazette at least twenty days
prior to the election. A printed copy thereof shall be posted in a
conspicuous place in every municipal, city, and provincial government
office building and in every polling place not later than May eighteen,
nineteen hundred and forty, and shall remain posted therein until after
the election. At least ten copies of said amendments shall be kept in
each polling place to be made available for examination by the
qualified electors during election day. When practicable, copies in the
principal native languages, as may be determined by the Secretary of
the Interior, shall also be kept therein.
As regards the Parity Amendment, Section 2 of Republic Act No. 73 is
to the effect that:
The said amendment shall be published in English and Spanish in
three consecutive issues of the Official Gazette at least twenty days
prior to the election. A printed copy thereof shall be posted in a
conspicuous place in every municipal, city, and provincial government
office building and in every polling place not later than February
eleven, nineteen hundred and forty-seven, and shall remain posted
therein until after the election. At least, ten copies of the said
amendment shall be kept in each polling place to be made available for
examination by the qualified electors during election day. When
practicable, copies in the principal native languages, as may be
determined by the Commission on Elections, shall also be kept in each
polling place.
The main difference between the present situation and that obtaining in
connection with the former proposals does not arise from the law
enacted therefor. The difference springs from the circumstance that the
major political parties had taken sides on previous amendments to the
Constitution — except, perhaps, the woman's suffrage — and,
consequently, debated thereon at some length before the plebiscite
took place. Upon the other hand, said political parties have not
seemingly made an issue on the amendments now being contested
and have, accordingly, refrained from discussing the same in the
current political campaign. Such debates or polemics as may have
taken place — on a rather limited scale — on the latest proposals for
amendment, have been due principally to the initiative of a few civic
organizations and some militant members of our citizenry who have
voiced their opinion thereon. A legislation cannot, however, be nullified
by reason of the failure of certain sectors of the community to discuss it
sufficiently. Its constitutionality or unconstitutionality depends upon no
other factors than those existing at the time of the enactment thereof,
unaffected by the acts or omissions of law enforcing agencies,
particularly those that take place subsequently to the passage or
approval of the law.
Referring particularly to the contested proposals for amendment, the
sufficiency or insufficiency, from a constitutional angle, of the
submission thereof for ratification to the people on November 14, 1967,
depends — in the view of those who concur in this opinion, and who,
insofar as this phase of the case, constitute the minority — upon
whether the provisions of Republic Act No. 4913 are such as to fairly
apprise the people of the gist, the main idea or the substance of said
proposals, which is — under R. B. H. No. 1 — the increase of the
maximum number of seats in the House of Representatives, from 120
to 180, and — under R. B. H. No. 3 — the authority given to the
members of Congress to run for delegates to the Constitutional
Convention and, if elected thereto, to discharge the duties of such
delegates, without forfeiting their seats in Congress. We — who
constitute the minority — believe that Republic Act No. 4913 satisfies
such requirement and that said Act is, accordingly, constitutional.
A considerable portion of the people may not know how over 160 of the
proposed maximum of representative districts are actually apportioned
by R. B. H. No. 1 among the provinces in the Philippines. It is not
improbable, however, that they are not interested in the details of the
apportionment, or that a careful reading thereof may tend in their
simple minds, to impair a clear vision thereof. Upon the other hand,
those who are more sophisticated, may enlighten themselves
sufficiently by reading the copies of the proposed amendments posted
in public places, the copies kept in the polling places and the text of
contested resolutions, as printed in full on the back of the ballots they
will use.
It is, likewise, conceivable that as many people, if not more, may fail to
realize or envisage the effect of R. B. H. No. 3 upon the work of the
Constitutional Convention or upon the future of our Republic. But, then,
nobody can foretell such effect with certainty. From our viewpoint, the
provisions of Article XV of the Constitution are satisfied so long as the
electorate knows that R. B. H. No. 3 permits Congressmen to retain
their seats as legislators, even if they should run for and assume the
functions of delegates to the Convention.
We are impressed by the factors considered by our distinguished and
esteemed brethren, who opine otherwise, but, we feel that such factors
29
affect the wisdom of Republic Act No. 4913 and that of R. B. H. Nos. 1
and 3, not the authority of Congress to approve the same.
The system of checks and balances underlying the judicial power to
strike down acts of the Executive or of Congress transcending the
confines set forth in the fundamental laws is not in derogation of the
principle of separation of powers, pursuant to which each department
is supreme within its own sphere. The determination of the conditions
under which the proposed amendments shall be submitted to the
people is concededly a matter which falls within the legislative sphere.
We do not believe it has been satisfactorily shown that Congress has
exceeded the limits thereof in enacting Republic Act No. 4913.
Presumably, it could have done something better to enlighten the
people on the subject-matter thereof. But, then, no law is perfect. No
product of human endeavor is beyond improvement. Otherwise, no
legislation would be constitutional and valid. Six (6) Members of this
Court believe, however, said Act and R. B. H. Nos. 1 and 3 violate the
spirit of the Constitution.
Inasmuch as there are less than eight (8) votes in favor of declaring
Republic Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and
invalid, the petitions in these two (2) cases must be, as they are
hereby, dismiss and the writs therein prayed for denied, without special
pronouncement as to costs. It is so ordered.
Makalintal and Bengzon, J.P., JJ., concur.
Fernando, J., concurs fully with the above opinion, adding a few words
on the question of jurisdiction.
Separate Opinions
MAKALINTAL, J., concurring:
I concur in the foregoing opinion of the Chief Justice. I would make
some additional observations in connection with my concurrence.
Sections 2 and 4 of Republic Act No. 4913 provide:
Sec. 2. The amendments shall be published in three consecutive
issues of the Official Gazette at least twenty days prior to the election.
A printed copy thereof shall be posted in a conspicuous place in every
municipality, city and provincial office building and in every polling
place not later than October fourteen, nineteen hundred and sixty-
seven, and shall remain posted therein until after the election. At least
five copies of the said amendments shall be kept in each polling place
to be made available for examination by the qualified electors during
election day. When practicable, copies in the principal native
languages, as may be determined by the Commission on Elections,
shall be kept in each polling place. The Commission on Elections shall
make available copies of each amendments in English, Spanish and,
whenever practicable, in the principal native languages, for free
distribution.
xxx xxx xxx
Sec. 4. The ballots which shall be used in the election for the
approval of said amendments shall be printed in English and Pilipino
and shall be in the size and form prescribed by the Commission on
Elections: Provided, however, That at the back of said ballot there shall
be printed in full Resolutions of both Houses of Congress Numbered
One and Three, both adopted on March sixteen, nineteen hundred and
sixty-seven, proposing the amendments: Provided, further, That the
questionnaire appearing on the face of the ballot shall be as follows:
Are you in favor of the proposed amendment to Section five of Article
VI of our Constitution printed at the back of this ballot?
Are you in favor of the proposed amendment to section sixteen of
Article VI of our Constitution printed at the back of this ballot?
To vote for the approval of the proposed amendments, the voter shall
write the word "yes" or its equivalent in Pilipino or in the local dialect in
the blank space after each question; to vote for the rejection thereof,
he shall write the word "No" or its equivalent in Pilipino or in the local
dialect.
I believe that intrinsically, that is, considered in itself and without
reference to extraneous factors and circumstances, the manner
prescribed in the aforesaid provisions is sufficient for the purpose of
having the proposed amendments submitted to the people for their
ratification, as enjoined in Section 1, Article XV of the Constitution. I am
at a loss to say what else should have been required by the Act to
make it adhere more closely to the constitutional requirement. Certainly
it would have been out of place to provide, for instance, that
government officials and employees should go out and explain the
amendments to the people, or that they should be the subject of any
particular means or form of public discussion.
The objection of some members of the Court to Republic Act No. 4913
seems to me predicated on the fact that there are so many other
issues at stake in the coming general election that the attention of the
electorate, cannot be entirely focused on the proposed amendments,
such that there is a failure to properly submit them for ratification within
the intendment of the Constitution. If that is so, then the defect is not
intrinsic in the law but in its implementation. The same manner of
submitting the proposed amendments to the people for ratification may,
in a different setting, be sufficient for the purpose. Yet I cannot
conceive that the constitutionality or unconstitutionality of a law may be
made to depend willy-nilly on factors not inherent in its provisions. For
a law to be struck down as unconstitutional it must be so by reason of
some irreconcilable conflict between it and the Constitution. Otherwise
a law may be either valid or invalid, according to circumstances not
found in its provisions, such as the zeal with which they are carried out.
To such a thesis I cannot agree. The criterion would be too broad and
relative, and dependent upon individual opinions that at best are
subjective. What one may regard as sufficient compliance with the
requirement of submission to the people, within the context of the
same law, may not be so to another. The question is susceptible of as
many views as there are viewers; and I do not think this Court would
be justified in saying that its own view on the matter is the correct one,
to the exclusion of the opinions of others.
On the other hand, I reject the argument that the ratification must
necessarily be in a special election or plebiscite called for that purpose
alone. While such procedure is highly to be preferred, the Constitution
speaks simply of "an election at which the amendments are submitted
to the people for their ratification," and I do not subscribe to the
restrictive interpretation that the petitioners would place on this
provision, namely, that it means only a special election.
BENGZON, J.P., J., concurring:
It is the glory of our institutions that they are founded upon law, that no
one can exercise any authority over the rights and interests of others
except pursuant to and in the manner authorized by law.1 Based upon
this principle, petitioners Ramon A. Gonzales and Philippine
Constitution Association (PHILCONSA) come to this Court in separate
petitions.
Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in
representation thru class suit of all citizens of this country, filed this suit
for prohibition with preliminary injunction to restrain the Commission on
Elections, Director of Printing and Auditor General from implementing
and/or complying with Republic Act 4913, assailing said law as
unconstitutional.
Petitioner PHILCONSA, as a civic, non-profit and non-partisan
corporation, assails the constitutionality not only of Republic Act 4913
but also of Resolutions of Both Houses Nos. 1 and 3 of March 16,
1967.
Republic Act 4913, effective June 17, 1967, is an Act submitting to the
Filipino people for approval the amendments to the Constitution of the
Philippines proposed by the Congress of the Philippines in Resolutions
of Both Houses Numbered 1 and 3, adopted on March 16, 1967. Said
Republic Act fixes the date and manner of the election at which the
aforesaid proposed amendments shall be voted upon by the people,
and appropriates funds for said election. Resolutions of Both Houses
Nos. 1 and 3 propose two amendments to the Constitution: the first, to
amend Sec. 5, Art. VI, by increasing the maximum membership of the
House of Representatives from 120 to 180, apportioning 160 of said
180 seats and eliminating the provision that Congress shall by law
make an apportionment within three years after the return of every
enumeration; the second, to amend Sec. 16, Art. VI, by allowing
Senators and Representatives to be delegates to a constitutional
convention without forfeiting their seats.
Since both petitions relate to the proposed amendments, they are
considered together herein.
Specifically and briefly, petitioner Gonzales' objections are as follows:
(1) Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, in
submitting the proposed amendments to the Constitution, to the people
for approval, at the general election of 1967 instead of at a special
election solely for that purpose; (2) Republic Act 4913 violates Sec. 1,
Art. XV of the Constitution, since it was not passed with the 3/4 vote in
joint session required when Congress proposes amendments to the
Constitution, said Republic Act being a step in or part of the process of
proposing amendments to the Constitution; and (3) Republic Act 4913
violates the due process clause of the Constitution (Sec. 1, Subsec. 1,
Art. III), in not requiring that the substance of the proposed
amendments be stated on the face of the ballot or otherwise rendering
clear the import of the proposed amendments, such as by stating the
provisions before and after said amendments, instead of printing at the
back of the ballot only the proposed amendments.
Since observance of Constitutional provisions on the procedure for
amending the Constitution is concerned, the issue is cognizable by this
Court under its powers to review an Act of Congress to determine its
conformity to the fundamental law. For though the Constitution leaves
Congress free to propose whatever Constitutional amendment it
deems fit, so that the substance or content of said proposed
amendment is a matter of policy and wisdom and thus a political
question, the Constitution nevertheless imposes requisites as to the
manner or procedure of proposing such amendments, e.g., the three-
30
fourths vote requirement. Said procedure or manner, therefore, from
being left to the discretion of Congress, as a matter of policy and
wisdom, is fixed by the Constitution. And to that extent, all questions
bearing on whether Congress in proposing amendments followed the
procedure required by the Constitution, is perforce justiciable, it not
being a matter of policy or wisdom.
Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV
clearly does not bear him on the point. It nowhere requires that the
ratification be thru an election solely for that purpose. It only requires
that it be at "an election at which the amendments are submitted to the
people for their ratification." To join it with an election for candidates to
public office, that is, to make it concurrent with such election, does not
render it any less an election at which the proposed amendments are
submitted to the people for their ratification. To prohibition being found
in the plain terms of the Constitution, none should be inferred. Had the
framers of requiring Constitution thought of requiring a special election
for the purpose only of the proposed amendments, they could have
said so, by qualifying the phrase with some word such as "special" or
"solely" or "exclusively". They did not.
It is not herein decided that such concurrence of election is wise, or
that it would not have been better to provide for a separate election
exclusively for the ratification of the proposed amendments. The point
however is that such separate and exclusive election, even if it may be
better or wiser, which again, is not for this Court to decide, is not
included in the procedure required by the Constitution to amend the
same. The function of the Judiciary is "not to pass upon questions of
wisdom, justice or expediency of legislation".2 It is limited to
determining whether the action taken by the Legislative Department
has violated the Constitution or not. On this score, I am of the opinion
that it has not.
Petitioner Gonzales' second point is that Republic Act 4913 is deficient
for not having been passed by Congress in joint session by 3/4 vote.
Sec. 1, Art. XV of the Constitution provides:
Sec. 1. The Congress in joint session assembled, by a vote of three-
fourths of all the members of the Senate and of the House of
Representatives voting separately, may propose amendments to this
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election to which the amendments are submitted
to the people for their ratification.
Does Republic Act 4913 propose amendments to the Constitution? If
by the term "propose amendment" is meant to determine WHAT said
amendment shall be, then Republic Act 4913 does not; Resolutions of
Both Houses 1 and 3 already did that. If, on the other hand, it means,
or also means, to provide for how, when, and by what means the
amendments shall be submitted to the people for approval, then it
does.
A careful reading of Sec. 1, Art. XV shows that the first sense. is the
one intended. Said Section has two sentences: in the first, it requires
the 3/4 voting in joint session, for Congress to "propose amendments".
And then in the second sentence, it provides that "such amendments . .
. shall be submitted to the people for their ratification". This clearly
indicates that by the term "propose amendments" in the first sentence
is meant to frame the substance or the content or the WHAT-element
of the amendments; for it is this and this alone that is submitted to the
people for their ratification. The details of when the election shall be
held for approval or rejection of the proposed amendments, or the
manner of holding it, are not submitted for ratification to form part of the
Constitution. Stated differently, the plain language of Section 1, Art.
XV, shows that the act of proposing amendments is distinct from —
albeit related to — that of submitting the amendments to the people for
their ratification; and that the 3/4 voting requirement applies only to the
first step, not to the second one.
It follows that the submission of proposed amendments can be done
thru an ordinary statute passed by Congress. The Constitution does
not expressly state by whom the submission shall be undertaken; the
rule is that a power not lodged elsewhere under the Constitution is
deemed to reside with the legislative body, under the doctrine of
residuary powers. Congress therefore validly enacted Republic Act
4913 to fix the details of the date and manner of submitting the
proposed amendments to the people for their ratification. Since it does
not "propose amendments" in the sense referred to by Sec. 1, Art. XV
of the Constitution, but merely provides for how and when the
amendments, already proposed, are going to be voted upon, the same
does not need the 3/4 vote in joint session required in Sec. 1, Art. XV
of the Constitution. Furthermore, Republic Act 4913 is an appropriation
measure. Sec. 6 thereof appropriates P1,000,000 for carrying out its
provisions. Sec. 18, Art. VI of the Constitution states that "All
appropriation . . . bills shall originate exclusively in the House of
Representatives". Republic Act 4913, therefore, could not have been
validly adopted in a joint session, reinforcing the view that Sec. 1, Art.
XV does not apply to such a measure providing for the holding of the
election to ratify the proposed amendments, which must perforce
appropriate funds for its purpose.
Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends
against substantive due process. An examination of the provisions of
the law shows no violation of the due process clause of the
Constitution. The publication in the Official Gazette at least 20 days
before the election, the posting of notices in public buildings not later
than October 14, 1967, to remain posted until after the elections, the
placing of copies of the proposed amendments in the polling places,
aside from printing the same at the back of the ballot, provide sufficient
opportunity to the voters to cast an intelligent vote on the proposal.
Due process refers only to providing fair opportunity; it does not
guarantee that the opportunity given will in fact be availed of; that is the
look-out of the voter and the responsibility of the citizen. As long as fair
and reasonable opportunity to be informed is given, and it is, the due
process clause is not infringed.
Non-printing of the provisions to be amended as they now stand, and
the printing of the full proposed amendments at the back of the ballot
instead of the substance thereof at the face of the ballot, do not deprive
the voter of fair opportunity to be informed. The present wording of the
Constitution is not being veiled or suppressed from him; he is
conclusively presumed to know them and they are available should he
want to check on what he is conclusively presumed to know. Should
the voters choose to remain ignorant of the present Constitution, the
fault does not lie with Congress. For opportunity to familiarize oneself
with the Constitution as it stands has been available thru all these
years. Perhaps it would have been more convenient for the voters if
the present wording of the provisions were also to be printed on the
ballot. The same however is a matter of policy. As long as the method
adopted provides sufficiently reasonable chance to intelligently vote on
the amendments, and I think it does in this case, it is not
constitutionally defective.
Petitioner Gonzales' other arguments touch on the merits or wisdom of
the proposed amendments. These are for the people in their sovereign
capacity to decide, not for this Court.
Two arguments were further advanced: first, that Congress cannot
both call a convention and propose amendments; second, that the
present Congress is a de facto one, since no apportionment law was
adopted within three years from the last census of 1960, so that the
Representatives elected in 1961 are de facto officers only. Not being
de jure, they cannot propose amendments, it is argued.
As to the first point, Sec. 1 of Art. XV states that Congress "may
propose amendments or call a convention for that purpose". The term
"or", however, is frequently used as having the same meaning as "and"
particularly in permissive, affirmative sentences so that the
interpretation of the word "or" as "and" in the Constitution in such use
will not change its meaning (Vicksburg S. & P. R. Co. v. Goodenough,
32 So. 404, 411, 108 La, 442). And it should be pointed out that the
resolutions proposing amendments (R.B.H. Nos. 1 and 3) are different
from that calling for a convention (R.B.H. No. 2). Surely, if Congress
deems it better or wise to amend the Constitution before a convention
called for is elected, it should not be fettered from doing so. For our
purposes in this case, suffice it to note that the Constitution does not
prohibit it from doing so.
As to the second argument, it is also true that Sec. 5 of Art. VI of the
Constitution provides in part that "The Congress shall by law make an
apportionment within three years after the return of every enumeration,
and not otherwise". It however further states in the next sentence:
"Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that fixed
by law for the National Assembly, who shall be elected by the qualified
electors from the present assembly districts." The failure of Congress,
therefore, to pass a valid redistricting law since the time the above
provision was adopted, does not render the present districting illegal or
unconstitutional. For the Constitution itself provides for its continuance
in such case, rendering legal and de jure the status quo.
For the above reasons, I vote to uphold the constitutionality of Republic
Act 4913, and fully concur with the opinion of the Chief Justice.
FERNANDO, J., concurring:
At the outset, we are faced with a question of jurisdiction. The opinion
prepared by the Chief Justice discusses the matter with a fullness that
erases doubts and misgivings and clarifies the applicable principles. A
few words may however be added.
We start from the premise that only where it can be shown that the
question is to be solved by public opinion or where the matter has been
left by the Constitution to the sole discretion of any of the political
branches, as was so clearly stated by the then Justice Concepcion in
Tañada v. Cuenco,1 may this Court avoid passing on the issue before
it. Whatever may be said about the present question, it is hard to speak
with certitude considering Article XV, that Congress may be entrusted
with the full and uncontrolled discretion on the procedure leading to
proposals for an amendment of the Constitution.
It may be said however that in Mabanag v. Lopez Vito,2 this Court
through Justice Tuason followed Coleman v. Miller,3 in its holding that
31
certain aspects of the amending process may be considered political.
His opinion quoted with approval the view of Justice Black, to which
three other members of the United States Supreme Court agreed, that
the process itself is political in its entirety, "from submission until an
amendment becomes part of the Constitution, and is not subject to
judicial guidance, control or interference at any point." In a sense that
would solve the matter neatly. The judiciary would be spared the at
times arduous and in every case soul-searching process of
determining whether the procedure for amendments required by the
Constitution has been followed.
At the same time, without impugning the motives of Congress, which
cannot be judicially inquired into at any rate, it is not beyond the realm
of possibility that a failure to observe the requirements of Article XV
would occur. In the event that judicial intervention is sought, to rely
automatically on the theory of political question to avoid passing on
such a matter of delicacy might under certain circumstances be
considered, and rightly so, as nothing less than judicial abdication or
surrender.
What appears regrettable is that a major opinion of an esteemed jurist,
the late Justice Tuason, would no longer be controlling. There is
comfort in the thought that the view that then prevailed was itself a
product of the times. It could very well be that considering the
circumstances existing in 1947 as well as the particular amendment
sought to be incorporated in the Constitution, the parity rights
ordinance, the better part of wisdom in view of the grave economic
situation then confronting the country would be to avoid the existence
of any obstacle to its being submitted for ratification. Moreover, the
Republic being less than a year old, American Supreme Court opinions
on constitutional questions were-invariably accorded uncritical
acceptance. Thus the approach followed by Justice Tuason is not
difficult to understand. It may be said that there is less propensity now,
which is all to the good, for this Court to accord that much deference to
constitutional views coming from the quarter.
Nor is this mode of viewing the opinion of Justice Tuason to do
injustice to his memory. For as he stated in another major opinion in
Araneta v. Dinglasan,4 in ascertaining the meaning to be given the
Emergency Powers Act,5 one should not ignore what would ensue if a
particular mode of construction were followed. As he so emphatically
stated, "We test a rule by its results."
The consequences of a judicial veto on the then proposed amendment
on the economic survival of the country, an erroneous appraisal it
turned out later, constituted an effective argument for its submission.
Why not then consider the question political and let the people decide?
That assumption could have been indulged in. It could very well be the
inarticulate major premise. For many it did bear the stamp of judicial
statesmanship.
The opinion of Chief Justice Concepcion renders crystal-clear why as
of this date and in the foreseeable future judicial inquiry to assure the
utmost compliance with the constitutional requirement would be a more
appropriate response.
SANCHEZ, J., in separate opinion:
Right at the outset, the writer expresses his deep appreciation to Mr.
Justice Calixto O. Zaldivar and Mr. Justice Fred Ruiz Castro for their
invaluable contribution to the substance and form of the opinion which
follows.
Directly under attack in this, a petition for prohibition, is the
constitutionality of Republic Act 4913, approved on June 17, 1967. This
Act seeks to implement Resolutions 1 and 3 adopted by the Senate
and the House of Representatives on March 16, 1967 with the end in
view of amending vital portions of the Constitution.
Since the problem here presented has its roots in the resolutions
aforesaid of both houses of Congress, it may just as well be that we
recite in brief the salient features thereof. Resolution No. 1 increases
the membership of the House of Representatives from 120 to 180
members, and immediately apportions 160 seats. A companion
resolution is Resolution No. 3 which permits Senators and
Congressmen — without forfeiting their seats in Congress — to be
members of the Constitutional Convention1 to be convened, as
provided in another resolution — Resolution No. 2. Parenthetically, two
of these proposed amendments to the Constitution (Resolutions I and
3) are to be submitted to the people for their ratification next November
14, 1967. Resolution No. 2 just adverted to calls for a constitutional
convention also to propose amendments to the Constitution. The
delegates thereto are to be elected on the second Tuesday of
November 1970; the convention to sit on June 1, 1971; and the
amendments proposed by the convention to be submitted to the people
thereafter for their ratification.
Of importance now are the proposed amendments increasing the
number of members of the House of representatives under Resolution
No. 1, and that in Resolution No. 3 which gives Senators and
Congressmen the right to sit as members of the constitutional
convention to be convened on June 1, 1971. Because, these are the
two amendments to be submitted to the people in the general elections
soon to be held on November 14, 1967, upon the provisions of Section
1, Republic Act 4913, which reads:
The amendments to the Constitution of the Philippines proposed by the
Congress of the Philippines in Resolutions of both Houses Numbered
One and Three, both adopted on March sixteen, nineteen hundred and
sixty- seven, shall be submitted to the people for approval at the
general election which shall be held on November fourteen, nineteen
hundred and sixty- seven, in accordance with the provisions of this Act.
Republic Act 4913 projects the basic angle of the problem thrust upon
us — the manner in which the amendments proposed by Congress just
adverted to be brought to the people's attention.
First, to the controlling constitutional precept. In order that proposed
amendments to the Constitution may become effective, Section 1,
Article XV thereof commands that such amendments must be
"approved by a majority of the votes cast at an election at which
amendments are submitted to the people for their ratification."2 The
accent is on two words complementing each other, namely,
"submitted" and "ratification."
1. We are forced to take a long hard look at the core of the
problem facing us. And this, because the amendments submitted are
transcendental and encompassing. The ceiling of the number of
Congressmen is sought to be elevated from 120 to 180 members; and
Senators and Congressmen may run in constitutional conventions
without forfeiting their seats. These certainly affect the people as a
whole. The increase in the number of Congressmen has its
proportional increase in the people's tax burdens. They may not look at
this with favor, what with the constitutional provision (Section 5, Article
VI) that Congress "shall by law make an apportionment", without the
necessity of disturbing the present constitutionally provided number of
Congressmen. People in Quezon City, for instance, may balk at the
specific apportionment of the 160 seats set forth in Resolution No. 1,
and ask for a Congressman of their own, on the theory of equal
representation. And then, people may question the propriety of
permitting the increased 180 Congressmen from taking part in the
forthcoming constitutional convention and future conventions for fear
that they may dominate its proceedings. They may entertain the belief
that, if at all, increase in the number of Congressmen should be a
proper topic for deliberation in a constitutional convention which,
anyway, will soon take place. They probably would ask: Why the
hurry? These ponderables require the people's close scrutiny.
2. With these as backdrop, we perforce go into the philosophy
behind the constitutional directive that constitutional amendments be
submitted to the people for their ratification.
A constitutional amendment is not a temporary expedient. Unlike a
statute which may suffer amendments three or more times in the same
year, it is intended to stand the test of time. It is an expression of the
people's sovereign will.
And so, our approach to the problem of the mechanics of submission
for ratification of amendments is that reasoning on the basis of the
spirit of the Constitution is just as important as reasoning by a strict
adherence to the phraseology thereof. We underscore this, because it
is within the realm of possibility that a Constitution maybe overhauled.
Supposing three-fourths of the Constitution is to be amended. Or, the
proposal is to eliminate the all important; Bill of Rights in its entirety.
We believe it to be beyond debate that in some such situations the
amendments ought to call for a constitutional convention rather than a
legislative proposal. And yet, nothing there is in the books or in the
Constitution itself. which would require such amendments to be
adopted by a constitutional convention. And then, too, the spirit of the
supreme enactment, we are sure, forbids that proposals therefor be
initiated by Congress and thereafter presented to the people for their
ratification.
In the context just adverted to, we take the view that the words
"submitted to the people for their ratification", if construed in the light of
the nature of the Constitution — a fundamental charter that is
legislation direct from the people, an — expression of their sovereign
will — is that it can only be amended by the people expressing
themselves according to the procedure ordained by the Constitution.
Therefore, amendments must be fairly laid before the people for their
blessing or spurning. The people are not to be mere rubber stamps.
They are not to vote blindly. They must be afforded ample opportunity
to mull over the original provisions compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly in
insidious influences. We believe, the word "submitted" can only mean
that the government, within its maximum capabilities, should strain
every effort to inform very citizen of the provisions to be amended, and
the proposed amendments and the meaning, nature and effects
thereof. By this, we are not to be understood as saying that, if one
citizen or 100 citizens or 1,000 citizens cannot be reached, then there
is no submission within the meaning of the word as intended by the
framers of the Constitution. What the Constitution in effect directs is
that the government, in submitting an amendment for ratification,
should put every instrumentality or agency within its structural
32
framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For, as we have earlier stated, one thing
is submission and another is ratification. There must be fair
submission, intelligent, consent or rejection. If with all these safeguards
the people still approve the amendment no matter how prejudicial it is
to them, then so be it. For, the people decree their own fate.
Aptly had it been said:
. . . The great men who builded the structure of our state in this respect
had the mental vision of a good Constitution voiced by Judge Cooley,
who has said "A good Constitution should beyond the reach of
temporary excitement and popular caprice or passion. It is needed for
stability and steadiness; it must yield to the thought of the people; not
to the whim of the people, or the thought evolved the excitement or hot
blood, but the sober second thought, which alone, if the government is
to be safe, can be allowed efficiency. . . . Changes in government are
to be feared unless the benefit is certain. As Montaign says: "All great
mutations shake and disorder a state. Good does not necessarily
succeed evil; another evil may succeed and a worse." Am. Law Rev.
1889, p. 3113
3. Tersely put, the issue before us funnels down to this
proposition: If the people are not sufficiently informed of the
amendments to be voted upon, to conscientiously deliberate thereon,
to express their will in a genuine manner can it be said that in
accordance with the constitutional mandate, "the amendments are
submitted to the people for their ratification?" Our answer is "No".
We examine Republic Act 4913, approved on June 17, 1967 — the
statute that submits to the people the constitutional amendments
proposed by Congress in Resolutions 1 and 3. Section 2 of the Act
provides the manner of propagation of the nature of the amendments
throughout the country. There are five parts in said Section 2, viz:
(1) The amendment shall be published in three consecutive
issues of the Official Gazette at least twenty days prior to the election.
(2) A printed copy thereof shall be posted in a conspicuous
place in every municipality, city and provincial office building and in
every polling place not later than October fourteen, nineteen hundred
and sixty-seven, and shall remain posted therein until after the election.
(3) At least five copies of the said amendments shall be kept in
each polling place to be made available for examination by the
qualified electors during election day.
(4) When practicable, copies in the principal native languages,
as may be determined by the Commission on Elections, shall be kept
in each polling place.
(5) The Commission on Elections shall make available copies of
said amendments in English, Spanish and, whenever practicable, in
the principal native languages, for free distribution.
A question that comes to mind is whether the procedure for
dissemination of information regarding the amendments effectively
brings the matter to the people. A dissection of the mechanics yields
disturbing thoughts. First, the Official Gazette is not widely read. It
does not reach the barrios. And even if it reaches the barrios, is it
available to all? And if it is, would all under stand English? Second, it
should be conceded that many citizens, especially those in the outlying
barrios, do not go to municipal, city and/or provincial office buildings,
except on special occasions like paying taxes or responding to court
summonses. And if they do, will they notice the printed amendments
posted on the bulletin board? And if they do notice, such copy again is
in English (sample submitted to this Court by the Solicitor General) for,
anyway, the statute does not require that it be in any other language or
dialect. Third, it would not help any if at least five copies are kept in the
polling place for examination by qualified electors during election day.
As petitioner puts it, voting time is not study time. And then, who can
enter the polling place, except those who are about to vote? Fourth,
copies in the principal native languages shall be kept in each polling
place. But this is not, as Section 2 itself implies, in the nature of a
command because such copies shall be kept therein only "when
practicable" and "as may be determined by the Commission on
Elections." Even if it be said that these are available before election, a
citizen may not intrude into the school building where the polling places
are usually located without disturbing the school classes being held
there. Fifth, it is true that the Comelec is directed to make available
copies of such amendments in English, Spanish or whenever
practicable, in the principal native languages, for free distribution.
However, Comelec is not required to actively distribute them to the
people. This is significant as to people in the provinces, especially
those in the far-flung barrios who are completely unmindful of the
discussions that go on now and then in the cities and centers of
population on the merits and demerits of the amendments. Rather,
Comelec, in this case, is but a passive agency which may hold copies
available, but which copies may not be distributed at all. Finally, it is of
common knowledge that Comelec has more than its hands full in these
pre-election days. They cannot possibly make extensive distribution.
Voters will soon go to the polls to say "yes" or "no". But even the
official sample ballot submitted to this Court would show that only the
amendments are printed at the back. And this, in pursuance to
Republic Act 4913 itself.
Surely enough, the voters do not have the benefit of proper notice of
the proposed amendments thru dissemination by publication in
extenso. People do not have at hand the necessary data on which to
base their stand on the merits and demerits of said amendments.
We, therefore, hold that there is no proper submission of the proposed
constitutional amendments within the meaning and intendment of
Section 1, Article XV of the Constitution.
4. Contemporary history is witness to the fact that during the
present election campaign the focus is on the election of candidates.
The constitutional amendments are crowded out. Candidates on the
homestretch, and their leaders as well as the voters, gear their
undivided efforts to the election of officials; the constitutional
amendments cut no ice with them. The truth is that even in the ballot
itself, the space accorded to the casting of "yes" or "no" vote would
give one the impression that the constitutional amendments are but a
bootstrap to the electoral ballot. Worse still, the fortunes of many
elective officials, on the national and local levels, are inextricably
intertwined with the results of the votes on the plebiscite. In a clash
between votes for a candidate and conscience on the merits and
demerits of the constitutional amendments, we are quite certain that it
is the latter that will be dented.
5. That proper submission of amendments to the people to
enable them to equally ratify them properly is the meat of the
constitutional requirement, is reflected in the sequence of uniform past
practices. The Constitution had been amended thrice — in 1939, 1940
and 1947. In each case, the amendments were embodied in
resolutions adopted by the Legislature, which thereafter fixed the dates
at which the proposed amendments were to be ratified or rejected.
These plebiscites have been referred to either as an "election" or
"general election". At no time, however, was the vote for the
amendments of the Constitution held simultaneously with the election
officials, national or local. Even with regard to the 1947 parity
amendment; the record shows that the sole issue was the 1947 parity
amendment; and the special elections simultaneously held in only
three provinces, Iloilo, Pangasinan and Bukidnon, were merely
incidental thereto.
In the end we say that the people are the last ramparts that guard
against indiscriminate changes in the Constitution that is theirs. Is it too
much to ask that reasonable guarantee be made that in the matter of
the alterations of the law of the land, their true voice be heard? The
answer perhaps is best expressed in the following thoughts: "It must be
remembered that the Constitution is the people's enactment. No
proposed change can become effective unless they will it so through
the compelling force of need of it and desire for it."4
For the reasons given, our vote is that Republic Act 4913 must be
stricken down as in violation of the Constitution.
Zaldivar and Castro, JJ., concur.
Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.
REYES, J.B.L., J., concurring:
I concur in the result with the opinion penned by Mr. Justice Sanchez.
To approve a mere proposal to amend the Constitution requires (Art.
XV) a three-fourths (3/4) vote of all the members of each legislative
chamber, the highest majority ever demanded by the fundamental
charter, one higher even than that required in order to declare war
(Sec. 24, Article VI), with all its dire consequences. If such an
overwhelming majority, that was evidently exacted in order to impress
upon all and sundry the seriousness of every constitutional
amendment, is asked for a proposal to amend the Constitution, I find it
impossible to believe that it was ever intended by its framers that such
amendment should be submitted and ratified by just "a majority of the
votes cast at an election at which the amendments are submitted to the
people for their ratification", if the concentration of the people's
attention thereon to be diverted by other extraneous issues, such as
the choice of local and national officials. The framers of the
Constitution, aware of the fundamental character thereof, and of the
need of giving it as much stability as is practicable, could have only
meant that any amendments thereto should be debated, considered
and voted upon at an election wherein the people could devote
undivided attention to the subject. That this was the intention and the
spirit of the provision is corroborated in the case of all other
constitutional amendments in the past, that were submitted to and
approved in special elections exclusively devoted to the issue whether
the legislature's amendatory proposals should be ratified or not.
Dizon, Angeles, Zaldivar and Castro, JJ., concur.
G.R. No. L-34150 October 16, 1971
33
ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT,
THE AUDITOR, and THE DISBURSING OFFICER OF THE 1971
CONSTITUTIONAL CONVENTION, respondents, RAUL S.
MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III,
VICTOR DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA,
LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V.
BORRA, Intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and
Auditor of the 1971 Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for
respondent Disbursing Officer of the 1971 Constitutional
Convention.
Intervenors in their own behalf.
BARREDO, J.:
Petition for prohibition principally to restrain the respondent
Commission on Elections "from undertaking to hold a plebiscite on
November 8, 1971," at which the proposed constitutional amendment
"reducing the voting age" in Section 1 of Article V of the Constitution of
the Philippines to eighteen years "shall be, submitted" for ratification by
the people pursuant to Organic Resolution No. 1 of the Constitutional
Convention of 1971, and the subsequent implementing resolutions, by
declaring said resolutions to be without the force and effect of law in so
far as they direct the holding of such plebiscite and by also declaring
the acts of the respondent Commission (COMELEC) performed and to
be done by it in obedience to the aforesaid Convention resolutions to
be null and void, for being violative of the Constitution of the
Philippines.
As a preliminary step, since the petition named as respondent only the
COMELEC, the Count required that copies thereof be served on the
Solicitor General and the Constitutional Convention, through its
President, for such action as they may deem proper to take. In due
time, respondent COMELEC filed its answer joining issues with
petitioner. To further put things in proper order, and considering that
the fiscal officers of the Convention are indispensable parties in a
proceeding of this nature, since the acts sought to be enjoined involve
the expenditure of funds appropriated by law for the Convention, the
Court also ordered that the Disbursing Officer, Chief Accountant and
Auditor of the Convention be made respondents. After the petition was
so amended, the first appeared thru Senator Emmanuel Pelaez and
the last two thru Delegate Ramon Gonzales. All said respondents, thru
counsel, resist petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of
arguments and even possible confusion, and considering that with the
principal parties being duly represented by able counsel, their interests
would be adequately protected already, the Court had to limit the
number of intervenors from the ranks of the delegates to the
Convention who, more or less, have legal interest in the success of the
respondents, and so, only Delegates Raul S. Manglapus, Jesus G.
Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan,
Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B.
Borra, all distinguished lawyers in their own right, have been allowed to
intervene jointly. The Court feels that with such an array of brilliant and
dedicated counsel, all interests involved should be duly and amply
represented and protected. At any rate, notwithstanding that their
corresponding motions for leave to intervene or to appear as amicus
curiae 1 have been denied, the pleadings filed by the other delegates
and some private parties, the latter in representation of their minor
children allegedly to be affected by the result of this case with the
records and the Court acknowledges that they have not been without
value as materials in the extensive study that has been undertaken in
this case.
The background facts are beyond dispute. The Constitutional
Convention of 1971 came into being by virtue of two resolutions of the
Congress of the Philippines approved in its capacity as a constituent
assembly convened for the purpose of calling a convention to propose
amendments to the Constitution namely, Resolutions 2 and 4 of the
joint sessions of Congress held on March 16, 1967 and June 17, 1969
respectively. The delegates to the said Convention were all elected
under and by virtue of said resolutions and the implementing legislation
thereof, Republic Act 6132. The pertinent portions of Resolution No 2
read as follows:
SECTION 1. There is hereby called a convention to propose
amendments to the Constitution of the Philippines, to be composed of
two elective Delegates from each representative district who shall have
the same qualifications as those required of Members of the House of
Representatives.
xxx xxx xxx
SECTION 7. The amendments proposed by the Convention shall be
valid and considered part of the Constitution when approved by a
majority of the votes cast in an election at which they are submitted to
the people for their ratification pursuant to Article XV of the
Constitution.
Resolution No. 4 merely modified the number of delegates to represent
the different cities and provinces fixed originally in Resolution No 2.
After the election of the delegates held on November 10, 1970, the
Convention held its inaugural session on June 1, 1971. Its preliminary
labors of election of officers, organization of committees and other
preparatory works over, as its first formal proposal to amend the
Constitution, its session which began on September 27, 1971, or more
accurately, at about 3:30 in the morning of September 28, 1971, the
Convention approved Organic Resolution No. 1 reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE
CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE
VOTING AGE TO 18
BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional
Convention:
Section 1. Section One of Article V of the Constitution of the
Philippines is amended to as follows:
Section 1. Suffrage may be exercised by (male) citizens of the
Philippines not otherwise disqualified by law, who are (twenty-one)
EIGHTEEN years or over and are able to read and write, and who shall
have resided in the Philippines for one year and in the municipality
wherein they propose to vote for at least six months preceding the
election.
Section 2. This amendment shall be valid as part of the Constitution of
the Philippines when approved by a majority of the votes cast in a
plebiscite to coincide with the local elections in November 1971.
Section 3. This partial amendment, which refers only to the age
qualification for the exercise of suffrage shall be without prejudice to
other amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended Section or
on other portions of the entire Constitution.
Section 4. The Convention hereby authorizes the use of the sum of
P75,000.00 from its savings or from its unexpended funds for the
expense of the advanced plebiscite; provided, however that should
there be no savings or unexpended sums, the Delegates waive
P250.00 each or the equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado Macapagal,
called upon respondent Comelec "to help the Convention implement
(the above) resolution." The said letter reads:
September 28, 1971
The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution No. 1
quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No. 6132
otherwise known as the Constitutional Convention Act of 1971, may we
call upon you to help the Convention implement this resolution:
Sincerely,
(Sgd.) DIOSDADO P. MACAPAGAL
DIOSDADO P. MACAPAGAL
President
On September 30, 1971, COMELEC "RESOLVED to inform the
Constitutional Convention that it will hold the plebiscite on condition
that:
(a) The Constitutional Convention will undertake the printing of
separate official ballots, election returns and tally sheets for the use of
said plebiscite at its expense;
(b) The Constitutional Convention will adopt its own security
measures for the printing and shipment of said ballots and election
forms; and
34
(c) Said official ballots and election forms will be delivered to the
Commission in time so that they could be distributed at the same time
that the Commission will distribute its official and sample ballots to be
used in the elections on November 8, 1971.
What happened afterwards may best be stated by quoting from
intervenors' Governors' statement of the genesis of the above
proposal:
The President of the Convention also issued an order forming an Ad
Hoc Committee to implement the Resolution.
This Committee issued implementing guidelines which were approved
by the President who then transmitted them to the Commission on
Elections.
The Committee on Plebiscite and Ratification filed a report on the
progress of the implementation of the plebiscite in the afternoon of
October 7,1971, enclosing copies of the order, resolution and letters of
transmittal above referred to (Copy of the report is hereto attached as
Annex 8-Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of October 7, 1971, the
Convention approved a resolution authored by Delegate Antonio
Olmedo of Davao Oriental, calling for a recess of the Convention from
November 1, 1971 to November 9, 1971 to permit the delegates to
campaign for the ratification of Organic Resolution No. 1. (Copies of
the resolution and the transcript of debate thereon are hereto attached
as Annexes 9 and 9-A Memorandum, respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution No. 24
submitted by Delegate Jose Ozamiz confirming the authority of the
President of the Convention to implement Organic Resolution No. 1,
including the creation of the Ad Hoc Committee ratifying all acts
performed in connection with said implementation.
Upon these facts, the main thrust of the petition is that Organic
Resolution No. 1 and the other implementing resolutions thereof
subsequently approved by the Convention have no force and effect as
laws in so far as they provide for the holding of a plebiscite co-incident
with the elections of eight senators and all city, provincial and
municipal officials to be held on November 8, 1971, hence all of
Comelec's acts in obedience thereof and tending to carry out the
holding of the plebiscite directed by said resolutions are null and void,
on the ground that the calling and holding of such a plebiscite is, by the
Constitution, a power lodged exclusively in Congress, as a legislative
body, and may not be exercised by the Convention, and that, under
Section 1, Article XV of the Constitution, the proposed amendment in
question cannot be presented to the people for ratification separately
from each and all of the other amendments to be drafted and proposed
by the Convention. On the other hand, respondents and intervenors
posit that the power to provide for, fix the date and lay down the details
of the plebiscite for the ratification of any amendment the Convention
may deem proper to propose is within the authority of the Convention
as a necessary consequence and part of its power to propose
amendments and that this power includes that of submitting such
amendments either individually or jointly at such time and manner as
the Convention may direct in discretion. The Court's delicate task now
is to decide which of these two poses is really in accord with the letter
and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the
question of jurisdiction. They contend that the issue before Us is a
political question and that the Convention being legislative body of the
highest order is sovereign, and as such, its acts impugned by petitioner
are beyond the control of the Congress and the courts. In this
connection, it is to be noted that none of the respondent has joined
intervenors in this posture. In fact, respondents Chief Accountant and
Auditor of the convention expressly concede the jurisdiction of this
Court in their answer acknowledging that the issue herein is a
justifiable one.
Strangely, intervenors cite in support of this contention portions of the
decision of this Court in the case of Gonzales v. Comelec, 21 SCRA
774, wherein the members of the Court, despite their being divided in
their opinions as to the other matters therein involved, were precisely
unanimous in upholding its jurisdiction. Obviously, distinguished
counsel have either failed to grasp the full impact of the portions of Our
decision they have quoted or would misapply them by taking them out
of context.
There should be no more doubt as to the position of this Court
regarding its jurisdiction vis-a-vis the constitutionality of the acts of the
Congress, acting as a constituent assembly, and, for that matter, those
of a constitutional convention called for the purpose of proposing
amendments to the Constitution, which concededly is at par with the
former. A simple reading of Our ruling in that very case of Gonzales
relied upon by intervenors should dispel any lingering misgivings as
regards that point. Succinctly but comprehensively, Chief Justice
Concepcion held for the Court thus: .
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this
Court — speaking through one of the leading members of the
Constitutional Convention and a respected professor of Constitutional
Law, Dr. Jose P. Laurel — declared that "the judicial department is the
only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and
among the integral or constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court
characterizing the issue submitted thereto as a political one declined to
pass upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution —
which was being submitted to the people for ratification — satisfied the
three-fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes v. Chief
Accountant of the Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851,
March 4 & 14, 1949), Tañada v. Cuenco, (L-10520, Feb. 28, 1957) and
Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In the
first we held that the officers and employees of the Senate Electoral
Tribunal are under its supervision and control, not of that of the Senate
President, as claimed by the latter; in the second, this Court proceeded
to determine the number of Senators necessary for quorum in the
Senate; in the third, we nullified the election, by Senators belonging to
the party having the largest number of votes in said chamber,
purporting to act, on behalf of the party having the second largest
number of votes therein of two (2) Senators belonging to the first party,
as members, for the second party, of the Senate Electoral Tribunal;
and in the fourth, we declared unconstitutional an act of Congress
purporting to apportion the representatives districts for the House of
Representatives, upon the ground that the apportionment had not been
made as may be possible according to the number of inhabitants of
each province. Thus we rejected the theory, advanced in these four (4)
cases that the issues therein raised were political questions the
determination of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative
powers to Congress (Section 1, Art. VI, Constitution of the Philippines).
It is part of the inherent powers of the people — as the repository
sovereignty in a republican state, such as ours (Section 1, Art. 11,
Constitution of the Philippines) — to make, and, hence, to amend their
own Fundamental Law. Congress may propose amendments to the
Constitution merely because the same explicitly grants such power.
(Section 1, Art. XV, Constitution of the Philippines) Hence, when
exercising the same, it is said that Senators and members of the
House of Representatives act, not as members of Congress, but as
component elements of a constituent assembly. When acting as such,
the members of Congress derive their authority from the Constitution,
unlike the people, when performing the same function, (Of amending
the Constitution) for their authority does not emanate from the
Constitution — they are the very source of all powers of government
including the Constitution itself.
Since, when proposing, as a constituent assembly, amendments to the
Constitution, the members of Congress derive their authority from the
Fundamental Law, it follows, necessarily, that they do not have the
final say on whether or not their acts are within or beyond constitutional
limits. Otherwise, they could brush aside and set the same at naught,
contrary to the basic tenet that ours is a government of laws, not of
men, and to the rigid nature of our Constitution. Such rigidity is
stressed by the fact that the Constitution expressly confers upon the
Supreme Court, (And, inferentially, to lower courts.) the power to
declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character of treaty-making
power.
In short, the issue whether or not a Resolution of Congress — acting
as a constituent assembly — violates the Constitution is essentially
justiciable not political, and, hence, subject to judicial review, and, to
the extent that this view may be inconsistent with the stand taken in
Mabanag v. Lopez Vito, (supra) the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.
No one can rightly claim that within the domain of its legitimate
authority, the Convention is not supreme. Nowhere in his petition and
in his oral argument and memoranda does petitioner point otherwise.
Actually, what respondents and intervenors are seemingly reluctant to
admit is that the Constitutional Convention of 1971, as any other
convention of the same nature, owes its existence and derives all its
authority and power from the existing Constitution of the Philippines.
This Convention has not been called by the people directly as in the
case of a revolutionary convention which drafts the first Constitution of
an entirely new government born of either a war of liberation from a
mother country or of a revolution against an existing government or of
a bloodless seizure of power a la coup d'etat. As to such kind of
conventions, it is absolutely true that the convention is completely
without restrain and omnipotent all wise, and it is as to such
conventions that the remarks of Delegate Manuel Roxas of the
Constitutional Convention of 1934 quoted by Senator Pelaez refer. No
amount of rationalization can belie the fact that the current convention
35
came into being only because it was called by a resolution of a joint
session of Congress acting as a constituent assembly by authority of
Section 1, Article XV of the present Constitution which provides:
ARTICLE XV — AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a vote of
three-fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to this
Constitution or call a convention for the purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted
to the people for their ratification.
True it is that once convened, this Convention became endowed with
extra ordinary powers generally beyond the control of any department
of the existing government, but the compass of such powers can be
co-extensive only with the purpose for which the convention was called
and as it may propose cannot have any effect as part of the
Constitution until the same are duly ratified by the people, it necessarily
follows that the acts of convention, its officers and members are not
immune from attack on constitutional grounds. The present
Constitution is in full force and effect in its entirety and in everyone of
its parts the existence of the Convention notwithstanding, and operates
even within the walls of that assembly. While it is indubitable that in its
internal operation and the performance of its task to propose
amendments to the Constitution it is not subject to any degree of
restraint or control by any other authority than itself, it is equally
beyond cavil that neither the Convention nor any of its officers or
members can rightfully deprive any person of life, liberty or property
without due process of law, deny to anyone in this country the equal
protection of the laws or the freedom of speech and of the press in
disregard of the Bill of Rights of the existing Constitution. Nor, for that
matter, can such Convention validly pass any resolution providing for
the taking of private property without just compensation or for the
imposition or exacting of any tax, impost or assessment, or declare war
or call the Congress to a special session, suspend the privilege of the
writ of habeas corpus, pardon a convict or render judgment in a
controversy between private individuals or between such individuals
and the state, in violation of the distribution of powers in the
Constitution.
It being manifest that there are powers which the Convention may not
and cannot validly assert, much less exercise, in the light of the
existing Constitution, the simple question arises, should an act of the
Convention be assailed by a citizen as being among those not granted
to or inherent in it, according to the existing Constitution, who can
decide whether such a contention is correct or not? It is of the very
essence of the rule of law that somehow somewhere the Power and
duty to resolve such a grave constitutional question must be lodged on
some authority, or we would have to confess that the integrated system
of government established by our founding fathers contains a wide
vacuum no intelligent man could ignore, which is naturally unworthy of
their learning, experience and craftsmanship in constitution-making.
We need not go far in search for the answer to the query We have
posed. The very decision of Chief Justice Concepcion in Gonzales, so
much invoked by intervenors, reiterates and reinforces the irrefutable
logic and wealth of principle in the opinion written for a unanimous
Court by Justice Laurel in Angara vs. Electoral Commission, 63 Phil.,
134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and
in bold lines, allotment of power to the executive, the legislative and the
judicial departments of the government. The overlapping and
interlacing of functions and duties between the several departments,
however, sometimes makes it hard to say where the one leaves off and
the other begins. In times of social disquietude or political excitement,
the great landmark of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.
As any human production our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the power of
our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited,
has established a republican government intended to operate and
function as a harmonious whole, under a system of check and
balances and subject to specific limitations and restrictions provided in
the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be
mere verbiage, the bill of rights mere expressions of sentiment and the
principles of good government mere political apothegms. Certainly the
limitations and restrictions embodied in our Constitution are real as
they should be in any living Constitution. In the United States where no
express constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by popular
acquiescence for a period of more than one and half centuries. In our
case, this moderating power is granted, if not expressly, by clear
implication from section 2 of Article VIII of our Constitution.
The Constitution is a definition of the powers or government. Who is to
determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the judiciary as
the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed
"judicial supremacy" which properly is the power of judicial review
under the Constitution. Even then, this power of judicial review is
limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any
attempt at abstraction could only lead to dialectics and barren legal
questions and to strike conclusions unrelated to actualities. Narrowed
as its functions is in this manner the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than
that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by
the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of
the people as expressed through their representatives in the executive
and legislative departments of the government.
But much as we might postulate on the internal checks of power
provided in our Constitution, it ought not the less to be remembered
that, in the language of James Madison, the system itself is not "the
chief palladium of constitutional liberty ... the people who are authors of
this blessing must also be its guardians ... their eyes must be ever
ready to mark, their voices to pronounce ... aggression on the authority
of their Constitution." In the last and ultimate analysis then, must the
success of our government in the unfolding years to come be tested in
the crucible of Filipino minds and hearts than in consultation rooms and
court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of
December 3, 1935, confirmed the election of the herein petitioner to
the said body. On the other hand, the Electoral Commission has by
resolution adopted on December 9, 1935, fixed said date as the last
day for the filing of protests against the election, returns and
qualifications of members of the National Assembly; notwithstanding
the previous confirmations made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the
National Assembly has the effect of cutting off the power of the
Electoral Commission to entertain protests against the election, returns
and qualifications of members of the National Assembly, submitted
after December 3, 1935 then the resolution of the Electoral
Commission of December 9, 1935, is mere surplusage and had no
effect. But, if, as contended by the respondents, the Electoral
Commission has the sole power of regulating its proceedings to the
exclusion of the National Assembly, then the resolution of December 9,
1935, by which the Electoral Commission fixed said date as the last
day for filing protests against the election, returns and qualifications of
members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a
conflict of a grave constitutional nature between the National Assembly
on the one hand and the Electoral Commission on the other. From the
very nature of the republican government established in our country in
the light of American experience and of our own, upon the judicial
department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries.
The Electoral Commission as we shall have occasion to refer
hereafter, is a constitutional organ, created for a specific purpose,
namely, to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the
Electoral Commission may not be interfered with, when and while
acting within the limits of its authority, it does not follow that it is beyond
the reach of the constitutional mechanism adopted by the people and
that it is not subject to constitutional restriction. The Electoral
Commission is not a separate department of the government, and even
if it were, conflicting claims of authority under the fundamental law
between departmental powers and agencies of the government are
necessarily determined by the judiciary in justiciable and appropriate
cases. Discarding the English type and other European types of
constitutional government, the framers of our Constitution adopted the
American type where the written constitution is interpreted and given
effect by the judicial department. In some countries which have
declined to follow the American example, provisions have been
inserted in their constitutions prohibiting the courts from exercising the
power to interpret the fundamental law. This is taken as a recognition
of what otherwise would be the rule that in the absence of direct
prohibition, courts are bound to assume what is logically their function.
For instance, the Constitution of Poland of 1921 expressly provides
that courts shall have no power to examine the validity of statutes (art.
36
81, Chap. IV). The former Austrian Constitution contained a similar
declaration. In countries whose constitution are silent in this respect,
courts have assumed this power. This is true in Norway, Greece,
Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3,
Preliminary Law to Constitutional Charter of the Czechoslavak,
Republic, February 29, 1920) and Spain (arts. 121-123, Title IX,
Constitution of the Republic of 1931) especial constitutional courts are
established to pass upon the validity of ordinary laws. In our case, the
nature of the present controversy shows the necessity of a final
constitutional arbiter to determine the conflict of authority between two
agencies created by the Constitution. Were we to decline to take
cognizance of the controversy, who will determine the conflict? And if
the conflict were left undecided and undetermined, would not a void be
thus created in our constitutional system which may in the long run
prove destructive of the entire framework? To ask these questions is to
answer them. Natura vacuum abhorret, so must we avoid exhaustion in
our constitutional system. Upon principle, reason, and authority, we are
clearly of the opinion that upon the admitted facts of the present case,
this court has jurisdiction over the Electoral Commission and the
subject matter of the present controversy for the purpose of
determining the character, scope and extent of the constitutional grant
to the Electoral Commission as "the sole judge of all contests relating
to the election, returns and qualifications of the members of the
National Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice Laurel
did in Angara, these postulates just quoted do not apply only to
conflicts of authority between the three existing regular departments of
the government but to all such conflicts between and among these
departments, or, between any of them, on the one hand, and any other
constitutionally created independent body, like the electoral tribunals in
Congress, the Comelec and the Constituent assemblies constituted by
the House of Congress, on the other. We see no reason of logic or
principle whatsoever, and none has been convincingly shown to Us by
any of the respondents and intervenors, why the same ruling should
not apply to the present Convention, even if it is an assembly of
delegate elected directly by the people, since at best, as already
demonstrated, it has been convened by authority of and under the
terms of the present Constitution..
Accordingly, We are left with no alternative but to uphold the
jurisdiction of the Court over the present case. It goes without saying
that We do this not because the Court is superior to the Convention or
that the Convention is subject to the control of the Court, but simply
because both the Convention and the Court are subject to the
Constitution and the rule of law, and "upon principle, reason and
authority," per Justice Laurel, supra, it is within the power as it is the
solemn duty of the Court, under the existing Constitution to resolve the
issues in which petitioner, respondents and intervenors have joined in
this case.
II
The issue of jurisdiction thus resolved, We come to the crux of the
petition. Is it within the powers of the Constitutional Convention of 1971
to order, on its own fiat, the holding of a plebiscite for the ratification of
the proposed amendment reducing to eighteen years the age for the
exercise of suffrage under Section 1 of Article V of the Constitution
proposed in the Convention's Organic Resolution No. 1 in the manner
and form provided for in said resolution and the subsequent
implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand
the most accurate and unequivocal statement of the real issue which
the Court is called upon to resolve. Petitioner has very clearly stated
that he is not against the constitutional extension of the right of
suffrage to the eighteen-year-olds, as a matter of fact, he has
advocated or sponsored in Congress such a proposal, and that, in
truth, the herein petition is not intended by him to prevent that the
proposed amendment here involved be submitted to the people for
ratification, his only purpose in filing the petition being to comply with
his sworn duty to prevent, Whenever he can, any violation of the
Constitution of the Philippines even if it is committed in the course of or
in connection with the most laudable undertaking. Indeed, as the Court
sees it, the specific question raised in this case is limited solely and
only to the point of whether or not it is within the power of the
Convention to call for a plebiscite for the ratification by the people of
the constitutional amendment proposed in the abovequoted Organic
Resolution No. 1, in the manner and form provided in said resolution as
well as in the subject question implementing actions and resolution of
the Convention and its officers, at this juncture of its proceedings,
when as it is a matter of common knowledge and judicial notice, it is
not set to adjourn sine die, and is, in fact, still in the preliminary stages
of considering other reforms or amendments affecting other parts of
the existing Constitution; and, indeed, Organic Resolution No. 1 itself
expressly provides, that the amendment therein proposed "shall be
without prejudice to other amendments that will be proposed in the
future by the 1971 Constitutional Convention on other portions of the
amended section or on other portions of the entire Constitution." In
other words, nothing that the Court may say or do, in this case should
be understood as reflecting, in any degree or means the individual or
collective stand of the members of the Court on the fundamental issue
of whether or not the eighteen-year-olds should be allowed to vote,
simply because that issue is not before Us now. There should be no
doubt in the mind of anyone that, once the Court finds it constitutionally
permissible, it will not hesitate to do its part so that the said proposed
amendment may be presented to the people for their approval or
rejection.
Withal, the Court rests securely in the conviction that the fire and
enthusiasm of the youth have not blinded them to the absolute
necessity, under the fundamental principles of democracy to which the
Filipino people is committed, of adhering always to the rule of law.
Surely, their idealism, sincerity and purity of purpose cannot permit any
other line of conduct or approach in respect of the problem before Us.
The Constitutional Convention of 1971 itself was born, in a great
measure, because of the pressure brought to bear upon the Congress
of the Philippines by various elements of the people, the youth in
particular, in their incessant search for a peaceful and orderly means of
bringing about meaningful changes in the structure and bases of the
existing social and governmental institutions, including the provisions
of the fundamental law related to the well-being and economic security
of the underprivileged classes of our people as well as those
concerning the preservation and protection of our natural resources
and the national patrimony, as an alternative to violent and chaotic
ways of achieving such lofty ideals. In brief, leaving aside the excesses
of enthusiasm which at times have justifiably or unjustifiably marred the
demonstrations in the streets, plazas and campuses, the youth of the
Philippines, in general, like the rest of the people, do not want
confusion and disorder, anarchy and violence; what they really want
are law and order, peace and orderliness, even in the pursuit of what
they strongly and urgently feel must be done to change the present
order of things in this Republic of ours. It would be tragic and contrary
to the plain compulsion of these perspectives, if the Court were to allow
itself in deciding this case to be carried astray by considerations other
than the imperatives of the rule of law and of the applicable provisions
of the Constitution. Needless to say, in a larger measure than when it
binds other departments of the government or any other official or
entity, the Constitution imposes upon the Court the sacred duty to give
meaning and vigor to the Constitution, by interpreting and construing
its provisions in appropriate cases with the proper parties, and by
striking down any act violative thereof. Here, as in all other cases, We
are resolved to discharge that duty.
During these twice when most anyone feels very strongly the urgent
need for constitutional reforms, to the point of being convinced that
meaningful change is the only alternative to a violent revolution, this
Court would be the last to put any obstruction or impediment to the
work of the Constitutional Convention. If there are respectable sectors
opining that it has not been called to supplant the existing Constitution
in its entirety, since its enabling provision, Article XV, from which the
Convention itself draws life expressly speaks only of amendments
which shall form part of it, which opinion is not without persuasive force
both in principle and in logic, the seemingly prevailing view is that only
the collective judgment of its members as to what is warranted by the
present condition of things, as they see it, can limit the extent of the
constitutional innovations the Convention may propose, hence the
complete substitution of the existing constitution is not beyond the
ambit of the Convention's authority. Desirable as it may be to resolve,
this grave divergence of views, the Court does not consider this case
to be properly the one in which it should discharge its constitutional
duty in such premises. The issues raised by petitioner, even those
among them in which respondents and intervenors have joined in an
apparent wish to have them squarely passed upon by the Court do not
necessarily impose upon Us the imperative obligation to express Our
views thereon. The Court considers it to be of the utmost importance
that the Convention should be untrammelled and unrestrained in the
performance of its constitutionally as signed mission in the manner and
form it may conceive best, and so the Court may step in to clear up
doubts as to the boundaries set down by the Constitution only when
and to the specific extent only that it would be necessary to do so to
avoid a constitutional crisis or a clearly demonstrable violation of the
existing Charter. Withal, it is a very familiar principle of constitutional
law that constitutional questions are to be resolved by the Supreme
Court only when there is no alternative but to do it, and this rule is
founded precisely on the principle of respect that the Court must
accord to the acts of the other coordinate departments of the
government, and certainly, the Constitutional Convention stands
almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it
clear that the Convention came into being by a call of a joint session of
Congress pursuant to Section I of Article XV of the Constitution,
already quoted earlier in this opinion. We reiterate also that as to
matters not related to its internal operation and the performance of its
assigned mission to propose amendments to the Constitution, the
Convention and its officers and members are all subject to all the
provisions of the existing Constitution. Now We hold that even as to its
latter task of proposing amendments to the Constitution, it is subject to
the provisions of Section I of Article XV. This must be so, because it is
plain to Us that the framers of the Constitution took care that the
process of amending the same should not be undertaken with the
same ease and facility in changing an ordinary legislation. Constitution
making is the most valued power, second to none, of the people in a
constitutional democracy such as the one our founding fathers have
chosen for this nation, and which we of the succeeding generations
37
generally cherish. And because the Constitution affects the lives,
fortunes, future and every other conceivable aspect of the lives of all
the people within the country and those subject to its sovereignty,
every degree of care is taken in preparing and drafting it. A constitution
worthy of the people for which it is intended must not be prepared in
haste without adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less
importance than the whole Constitution itself, and perforce must be
conceived and prepared with as much care and deliberation. From the
very nature of things, the drafters of an original constitution, as already
observed earlier, operate without any limitations, restraints or
inhibitions save those that they may impose upon themselves. This is
not necessarily true of subsequent conventions called to amend the
original constitution. Generally, the framers of the latter see to it that
their handiwork is not lightly treated and as easily mutilated or
changed, not only for reasons purely personal but more importantly,
because written constitutions are supposed to be designed so as to
last for some time, if not for ages, or for, at least, as long as they can
be adopted to the needs and exigencies of the people, hence, they
must be insulated against precipitate and hasty actions motivated by
more or less passing political moods or fancies. Thus, as a rule, the
original constitutions carry with them limitations and conditions, more
or less stringent, made so by the people themselves, in regard to the
process of their amendment. And when such limitations or conditions
are so incorporated in the original constitution, it does not lie in the
delegates of any subsequent convention to claim that they may ignore
and disregard such conditions because they are as powerful and
omnipotent as their original counterparts.
Nothing of what is here said is to be understood as curtailing in any
degree the number and nature and the scope and extent of the
amendments the Convention may deem proper to propose. Nor does
the Court propose to pass on the issue extensively and brilliantly
discussed by the parties as to whether or not the power or duty to call
a plebiscite for the ratification of the amendments to be proposed by
the Convention is exclusively legislative and as such may be exercised
only by the Congress or whether the said power can be exercised
concurrently by the Convention with the Congress. In the view the
Court takes of present case, it does not perceive absolute necessity to
resolve that question, grave and important as it may be. Truth to tell,
the lack of unanimity or even of a consensus among the members of
the Court in respect to this issue creates the need for more study and
deliberation, and as time is of the essence in this case, for obvious
reasons, November 8, 1971, the date set by the Convention for the
plebiscite it is calling, being nigh, We will refrain from making any
pronouncement or expressing Our views on this question until a more
appropriate case comes to Us. After all, the basis of this decision is as
important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any
limitation or condition in Section 1 of Article XV of the Constitution
which is violated by the act of the Convention of calling for a plebiscite
on the sole amendment contained in Organic Resolution No. 1? The
Court holds that there is, and it is the condition and limitation that all
the amendments to be proposed by the same Convention must be
submitted to the people in a single "election" or plebiscite. It being
indisputable that the amendment now proposed to be submitted to a
plebiscite is only the first amendment the Convention propose We hold
that the plebiscite being called for the purpose of submitting the same
for ratification of the people on November 8, 1971 is not authorized by
Section 1 of Article XV of the Constitution, hence all acts of the
Convention and the respondent Comelec in that direction are null and
void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is
sufficiently clear. lt says distinctly that either Congress sitting as a
constituent assembly or a convention called for the purpose "may
propose amendments to this Constitution," thus placing no limit as to
the number of amendments that Congress or the Convention may
propose. The same provision also as definitely provides that "such
amendments shall be valid as part of this Constitution when approved
by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification," thus leaving no room
for doubt as to how many "elections" or plebiscites may be held to
ratify any amendment or amendments proposed by the same
constituent assembly of Congress or convention, and the provision
unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the
wisdom and appropriateness of this provision. As already stated,
amending the Constitution is as serious and important an undertaking
as constitution making itself. Indeed, any amendment of the
Constitution is as important as the whole of it if only because the
Constitution has to be an integrated and harmonious instrument, if it is
to be viable as the framework of the government it establishes, on the
one hand, and adequately formidable and reliable as the succinct but
comprehensive articulation of the rights, liberties, ideology, social
ideals, and national and nationalistic policies and aspirations of the
people, on the other. lt is inconceivable how a constitution worthy of
any country or people can have any part which is out of tune with its
other parts..

A constitution is the work of the people thru its drafters assembled by
them for the purpose. Once the original constitution is approved, the
part that the people play in its amendment becomes harder, for when a
whole constitution is submitted to them, more or less they can
assumed its harmony as an integrated whole, and they can either
accept or reject it in its entirety. At the very least, they can examine it
before casting their vote and determine for themselves from a study of
the whole document the merits and demerits of all or any of its parts
and of the document as a whole. And so also, when an amendment is
submitted to them that is to form part of the existing constitution, in like
fashion they can study with deliberation the proposed amendment in
relation to the whole existing constitution and or any of its parts and
thereby arrive at an intelligent judgment as to its acceptability.
This cannot happen in the case of the amendment in question.
Prescinding already from the fact that under Section 3 of the
questioned resolution, it is evident that no fixed frame of reference is
provided the voter, as to what finally will be concomitant qualifications
that will be required by the final draft of the constitution to be
formulated by the Convention of a voter to be able to enjoy the right of
suffrage, there are other considerations which make it impossible to
vote intelligently on the proposed amendment, although it may already
be observed that under Section 3, if a voter would favor the reduction
of the voting age to eighteen under conditions he feels are needed
under the circumstances, and he does not see those conditions in the
ballot nor is there any possible indication whether they will ever be or
not, because Congress has reserved those for future action, what kind
of judgment can he render on the proposal?
But the situation actually before Us is even worse. No one knows what
changes in the fundamental principles of the constitution the
Convention will be minded to approve. To be more specific, we do not
have any means of foreseeing whether the right to vote would be of
any significant value at all. Who can say whether or not later on the
Convention may decide to provide for varying types of voters for each
level of the political units it may divide the country into. The root of the
difficulty in other words, lies in that the Convention is precisely on the
verge of introducing substantial changes, if not radical ones, in almost
every part and aspect of the existing social and political order
enshrined in the present Constitution. How can a voter in the proposed
plebiscite intelligently determine the effect of the reduction of the voting
age upon the different institutions which the Convention may establish
and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it
must provide the voter not only sufficient time but ample basis for an
intelligent appraisal of the nature of the amendment per se as well as
its relation to the other parts of the Constitution with which it has to
form a harmonious whole. In the context of the present state of things,
where the Convention has hardly started considering the merits of
hundreds, if not thousands, of proposals to amend the existing
Constitution, to present to the people any single proposal or a few of
them cannot comply with this requirement. We are of the opinion that
the present Constitution does not contemplate in Section 1 of Article
XV a plebiscite or "election" wherein the people are in the dark as to
frame of reference they can base their judgment on. We reject the
rationalization that the present Constitution is a possible frame of
reference, for the simple reason that intervenors themselves are
stating that the sole purpose of the proposed amendment is to enable
the eighteen year olds to take part in the election for the ratification of
the Constitution to be drafted by the Convention. In brief, under the
proposed plebiscite, there can be, in the language of Justice Sanchez,
speaking for the six members of the Court in Gonzales, supra, "no
proper submission".
III
The Court has no desire at all to hamper and hamstring the noble work
of the Constitutional Convention. Much less does the Court want to
pass judgment on the merits of the proposal to allow these eighteen
years old to vote. But like the Convention, the Court has its own duties
to the people under the Constitution which is to decide in appropriate
cases with appropriate parties Whether or not the mandates of the
fundamental law are being complied with. In the best light God has
given Us, we are of the conviction that in providing for the questioned
plebiscite before it has finished, and separately from, the whole draft of
the constitution it has been called to formulate, the Convention's
Organic Resolution No. 1 and all subsequent acts of the Convention
implementing the same violate the condition in Section 1, Article XV
that there should only be one "election" or plebiscite for the ratification
of all the amendments the Convention may propose. We are not
denying any right of the people to vote on the proposed amendment;
We are only holding that under Section 1, Article XV of the
Constitution, the same should be submitted to them not separately
from but together with all the other amendments to be proposed by this
present Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted.
Organic Resolution No. 1 of the Constitutional Convention of 1971 and
the implementing acts and resolutions of the Convention, insofar as
they provide for the holding of a plebiscite on November 8, 1971, as
38
well as the resolution of the respondent Comelec complying therewith
(RR Resolution No. 695) are hereby declared null and void. The
respondents Comelec, Disbursing Officer, Chief Accountant and
Auditor of the Constitutional Convention are hereby enjoined from
taking any action in compliance with the said organic resolution. In
view of the peculiar circumstances of this case, the Court declares this
decision immediately executory. No costs.
Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.
Separate Opinions
MAKALINTAL, J., reserves his vote —
I reserve my vote. The resolution in question is voted down by a
sufficient majority of the Court on just one ground, which to be sure
achieves the result from the legal and constitutional viewpoint. I
entertain grave doubts as to the validity of the premises postulated and
conclusions reached in support of the dispositive portion of the
decision. However, considering the urgent nature of this case, the lack
of time to set down at length my opinion on the particular issue upon
which the decision is made to rest, and the fact that a dissent on the
said issue would necessarily be inconclusive unless the other issues
raised in the petition are also considered and ruled upon — a task that
would be premature and pointless at this time — I limit myself to this
reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo in his
usual inimitable, forthright and vigorous style. Like him, we do not
express our individual views on the wisdom of the proposed
constitutional amendment, which is not in issue here because it is a
matter that properly and exclusively addresses itself to the collective
judgment of the people.
We must, however, articulate two additional objections of constitutional
dimension which, although they would seem to be superfluous
because of the reach of the basic constitutional infirmity discussed in
extenso in the main opinion, nevertheless appear to us to be just as
fundamental in character and scope.
Assuming that the Constitutional Convention has power to propose
piecemeal amendments and submit each separately to the people for
ratification, we are nonetheless persuaded that (1) that there is no
proper submission of title proposed amendment in question within the
meaning and intendment of Section 1 of Article XV of the Constitution,
and (2) that the forthcoming election is not the proper election
envisioned by the same provision of the Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission
on
Elections1 and Philippine Constitution Association vs. Commission on
Elections,2 expounded his view, with which we essentially agree, on
the minimum requirements that must be met in order that there can be
a proper submission to the people of a proposed constitutional
amendment. This is what he said:
... amendments must be fairly laid before the people for their blessing
or spurning. The people are not to be mere rubber stamps. They are
not to vote blindly. They must be afforded ample opportunity to mull
over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word "submitted" can only mean
that the government, within its maximum capabilities, should strain
every effort to inform citizen of the provisions to be amended, and the
proposed amendments and the meaning, nature and effects thereof.
By this, we are not to be understood as saying that, if one citizen or
100 citizens or 1,000 citizens cannot be reached, then there is no
submission within the meaning of the word as intended by the framers
of the Constitution. What the Constitution in effect directs is that the
government, in submitting an amendment for ratification, should put
every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of
ratification or rejection. For we have earlier stated, one thing is
submission and another is ratification. There must be fair submission,
intelligent consent or rejection." .
The second constitutional objection was given expression by one of the
writers of this concurring opinion, in the following words:
I find it impossible to believe that it was ever intended by its framers
that such amendment should be submitted and ratified by just "a
majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification", if the concentration of the
people's attention thereon is to be diverted by other extraneous issues,
such as the choice of local and national officials. The framers of the
Constitution, aware of the fundamental character thereof, and of the
need of giving it as much stability as is practicable, could have only
meant that any amendments thereto should be debated, considered
and voted upon an election wherein the people could devote undivided
attention to the subject.4
True it is that the question posed by the proposed amendment, "Do
you or do you not want the 18-year old to be allowed to vote?," would
seem to be uncomplicated and innocuous. But it is one of life's verities
that things which appear to be simple may turn out not to be so simple
after all.
A number of doubts or misgivings could conceivably and logically
assail the average voter. Why should the voting age be lowered at all,
in the first place? Why should the new voting age be precisely 18
years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-
year old as mature as the 21-year old so that there is no need of an
educational qualification to entitle him to vote? In this age of
permissiveness and dissent, can the 18-year old be relied upon to vote
with judiciousness when the 21-year old, in the past elections, has not
performed so well? If the proposed amendment is voted down by the
people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed
amendment ratified at this particular time? Do some of the members of
the Convention have future political plans which they want to begin to
subserve by the approval this year of this amendment? If this
amendment is approved, does it thereby mean that the 18-year old
should now also shoulder the moral and legal responsibilities of the 21-
year old? Will he be required to render compulsory military service
under the colors? Will the age of contractual consent be reduced to 18
years? If I vote against this amendment, will I not be unfair to my own
child who will be 18 years old, come 1973? .
The above are just samplings from here, there and everywhere — from
a domain (of searching questions) the bounds of which are not
immediately ascertainable. Surely, many more questions can be added
to the already long litany. And the answers cannot be had except as
the questions are debated fully, pondered upon purposefully, and
accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and
by election time will not be, sufficiently informed of the meaning, nature
and effects of the proposed constitutional amendment. They have not
been afforded ample time to deliberate thereon conscientiously. They
have been and are effectively distracted from a full and dispassionate
consideration of the merits and demerits of the proposed amendment
by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom of
the proposed amendment.
Upon the above disquisition, it is our considered view that the
intendment of the words, "at an election at which the amendments are
submitted to the people for their ratification," embodied in Section 1 of
Article XV of the Constitution, has not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court penned by Justice
Barredo, characterized by clarity and vigor, its manifestation of fealty to
the rule of law couched in eloquent language, that commands assent.
As the Constitution occupies the topmost rank in the hierarchy of legal
norms, Congress and Constitutional Convention alike, no less than this
Court, must bow to its supremacy. Thereby constitutionalism asserts
itself. With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as far as
the acceptance of the conclusion reached. The question presented is
indeed novel, not being controlled by constitutional prescription,
definite and certain. Under the circumstances, with the express
recognition in the Constitution of the powers of the Constitutional
Convention to propose amendments, I cannot discern any objection to
the validity of its action there being no legal impediment that would call
for its nullification. Such an approach all the more commends itself to
me considering that what was sought to be done is to refer the matter
to the people in whom, according to our Constitution, sovereignty
resides. It is in that sense that, with due respect, I find myself unable to
join my brethren.
I. It is understandable then why the decisive issue posed could
not be resolved by reliance on, implicit in the petition and the answer of
intervenors, such concepts as legislative control of the constitutional
convention referred to by petitioner on the one hand or, on the other,
the theory of conventional sovereignty favored by intervenors. It is
gratifying to note that during the oral argument of petitioner and
counsel for respondents and intervenors, there apparently was a
retreat from such extreme position, all parties, as should be the case,
expressly avowing the primacy of the Constitution, the applicable
provision of which as interpreted by this Court, should be controlling on
both Congress and the Convention. It cannot be denied though that in
39
at least one American state, that is Pennsylvania, there were decisions
announcing the doctrine that the powers to be exercised by a
constitutional convention are dependent on a legislative grant, in the
absence of any authority conferred directly by the fundamental law.
The result is a convention that is subordinate to the lawmaking body.
Its field of competence is circumscribed. It has to look to the latter for
the delimitation of its permissible scope of activity. It is thus made
subordinate to the legislature. Nowhere has such a view been more
vigorously expressed than in the Pennsylvania case of Wood's
Appeal.1 Its holding though finds no support under our constitutional
provision.
It does not thereby follow that while free from legislative control, a
constitutional convention may lay claim to an attribute sovereign in
character. The Constitution is quite explicit that it is to the people, and
to the people alone, in whom sovereignty resides.2 Such a prerogative
is therefore withheld from a convention. It is an agency entrusted with
the responsibility of high import and significance it is true; it is denied
unlimited legal competence though. That is what sovereignty connotes.
It has to yield to the superior force of the Constitution. There can then
be no basis for the exaggerated pretension that it is an alter ego of the
people. It is to be admitted that there are some American state
decisions, the most notable of which is Sproule v. Fredericks,3 a
Mississippi case, that dates back to 1892, that yield a different
conclusion. The doctrine therein announced cannot bind us. Our
Constitution makes clear that the power of a constitutional convention
is not sovereign. It is appropriately termed constituent, limited as it is to
the purpose of drafting a constitution or proposing revision or
amendments to one in existence, subject in either case to popular
approval.
The view that commends itself for acceptance is that legislature and
constitutional convention, alike recognized by the Constitution, are
coordinate, there being no superiority of one over the other. Insofar as
the constituent power of proposing amendments to the Constitution is
concerned, a constitutional convention enjoys a wide sphere of
autonomy consistently with the Constitution which can be the only
source of valid restriction on its competence. It is true it is to the
legislative body that the call to a convention must proceed, but once
convened, it cannot in any wise be interfered with, much less controlled
by Congress. A contrary conclusion would impair its usefulness for the
delicate, and paramount task assigned to it. A convention then is to be
looked upon as if it were one of the three coordinate departments
which under the principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly subject to its
jurisdiction. A succinct statement of the appropriate principle that
should govern the relationship between a constitutional convention and
a legislative body under American law is that found in Orfield's work.
Thus: "The earliest view seems to have been that a convention was
absolute. The convention was sovereign and subject to no restraint. On
the other hand, Jameson, whose views have been most frequently
cited in decisions, viewed a convention as a body with strictly limited
powers, and subject to the restrictions imposed on it by the legislative
call. A third and intermediate view is that urged by Dodd — that a
convention, though not sovereign, is a body independent of the
legislature; it is bound by the existing constitution, but not by the acts of
the legislature, as to the extent of its constituent power. This view has
become increasingly prevalent in the state decisions."4
2. It is to the Constitution, and to the Constitution alone then, as
so vigorously stressed in the opinion of the Court, that any limitation on
the power the Constitutional, Convention must find its source. I turn to
its Article XV. It reads: "The Congress in joint session assembled, by a
vote of three fourths of all the Members of the Senate and of the House
of Representatives voting separately, may propose amendments to this
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted
to the people for their ratification."
Clearly, insofar as amendments, including revision, are concerned,
there are two steps, proposal and thereafter ratification. Thus as to the
former, two constituent bodies are provided for, the Congress of the
Philippines in the mode therein provided, and a constitutional
convention that may be called into being. Once assembled, a
constitutional convention, like the Congress of the Philippines,
possesses in all its plenitude the constituent power. Inasmuch as
Congress may determine what amendments it would have the people
ratify and thereafter take all the steps necessary so that the approval or
disapproval of the electorate may be obtained, the convention likewise,
to my mind, should be deemed possessed of all the necessary
authority to assure that whatever amendments it seeks to introduce
would be submitted to the people at an election called for that purpose.
It would appear to me that to view the convention as being denied a
prerogative which is not withheld from Congress as a constituent body
would be to place it in an inferior category. Such a proposition I do not
find acceptable. Congress and constitutional convention are agencies
for submitting proposals under the fundamental law. A power granted
to one should not be denied the other. No justification for such a drastic
differentiation either in theory or practice exists.
Such a conclusion has for me the added reinforcement that to require
ordinary legislation before the convention could be enabled to have its
proposals voted on by the people would be to place a power in the
legislative and executive branches that could, whether by act or
omission, result in the frustration of the amending process. I am the
first to admit that such likelihood is remote, but if such a risk even if
minimal could be avoided, it should be, unless the compelling force of
an applicable constitutional provision requires otherwise. Considering
that a constitutional convention is not precluded from imposing
additional restrictions on the powers of either the executive or
legislative branches, or, for that matter, the judiciary, it would appear to
be the better policy to interpret Article XV in such a way that would not
sanction such restraint on the authority that must be recognized as
vested in a constitutional convention. There is nothing in such a view
that to my mind would collide with a reasonable interpretation of Article
XV. It certainly is one way by which freed from pernicious abstractions,
it would be easier to accommodate a constitution to the needs of an
unfolding future. That is to facilitate its being responsive to the
challenge that time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the conclusion that
the challenged resolution was well within the power of the convention.
That would be to brush aside the web of unreality spun from a too-
restrictive mode of appraising the legitimate scope of its competence.
That would be, for me, to give added vigor and life to the conferment of
authority vested in it, attended by such grave and awesome
responsibility.
3. It becomes pertinent to inquire then whether the last
sentence of Article XV providing that such amendment shall be valid
when submitted and thereafter approved by the majority of the votes
cast by the people at an election is a bar to the proposed submission. It
is the conclusion arrived at by my brethren that there is to be only one
election and that therefore the petition must be sustained as only when
the convention has finished its work should all amendments proposed
be submitted for ratification. That is not for me, and I say this with
respect, the appropriate interpretation. It is true that the Constitution
uses the word "election" in the singular, but that is not decisive. No
undue reliance should be accorded rules of grammar; they do not exert
a compelling force in constitutional interpretation. Meaning is to be
sought not from specific language in the singular but from the mosaic
of significance derived from the total context. It could be, if it were not
thus, self-defeating. Such a mode of construction does not commend
itself. The words used in the Constitution are not inert; they derive
vitality from the obvious purposes at which they are aimed. Petitioner's
stress on linguistic refinement, while not implausible does not, for me,
carry the day.
It was likewise argued by petitioner that the proposed amendment is
provisional and therefore is not such as was contemplated in this
article. I do not find such contention convincing. The fact that the
Constitutional Convention did seek to consult the wishes of the people
by the proposed submission of a tentative amendatory provision is an
argument for its validity. It might be said of course that until impressed
with finality, an amendment is not to be passed upon by the electorate.
There is plausibility in such a view. A literal reading of the Constitution
would support it. The spirit that informs it though would not, for me, be
satisfied. From its silence I deduce the inference that there is no
repugnancy to the fundamental law when the Constitutional
Convention ascertains the popular will. In that sense, the Constitution,
to follow the phraseology of Thomas Reed Powel, is not silently silent
but silently vocal. What I deem the more important consideration is that
while a public official, as an agent, has to locate his source of authority
in either Constitution or statute, the people, as the principal, can only
be limited in the exercise of their sovereign powers by the express
terms of the Constitution. A concept to the contrary would to my way of
thinking be inconsistent with the fundamental principle that it is in the
people, and the people alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope
of its authority, an action to restrain or prohibit respondent Commission
on Elections from conducting the plebiscite does not lie. It should not
be lost sight of that the Commission on Elections in thus being charged
with such a duty does not act in its capacity as the constitutional
agency to take charge of all laws relative to the conduct of election.
That is a purely executive function vested in it under Article X of the
Constitution.5 It is not precluded from assisting the Constitutional
Convention if pursuant to its competence to amend the fundamental
law it seeks, as in this case, to submit a proposal, even if admittedly
tentative, to the electorate to ascertain its verdict. At any rate, it may be
implied that under the 1971 Constitutional Convention Act, it is not to
turn a deaf ear to a summons from the Convention to aid it in the
legitimate discharge of its functions.6
The aforesaid considerations, such as they are, but which for me have
a force that I mind myself unable to overcome, leave me no alternative
but to dissent from my brethren, with due acknowledgement of course
that from their basic premises, the conclusion arrived at by them
cannot be characterized as in any wise bereft of a persuasive quality of
a high order.
40
Separate Opinions
MAKALINTAL, J., reserves his vote —
I reserve my vote. The resolution in question is voted down by a
sufficient majority of the Court on just one ground, which to be sure
achieves the result from the legal and constitutional viewpoint. I
entertain grave doubts as to the validity of the premises postulated and
conclusions reached in support of the dispositive portion of the
decision. However, considering the urgent nature of this case, the lack
of time to set down at length my opinion on the particular issue upon
which the decision is made to rest, and the fact that a dissent on the
said issue would necessarily be inconclusive unless the other issues
raised in the petition are also considered and ruled upon — a task that
would be premature and pointless at this time — I limit myself to this
reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo in his
usual inimitable, forthright and vigorous style. Like him, we do not
express our individual views on the wisdom of the proposed
constitutional amendment, which is not in issue here because it is a
matter that properly and exclusively addresses itself to the collective
judgment of the people.
We must, however, articulate two additional objections of constitutional
dimension which, although they would seem to be superfluous
because of the reach of the basic constitutional infirmity discussed in
extenso in the main opinion, nevertheless appear to us to be just as
fundamental in character and scope.
Assuming that the Constitutional Convention has power to propose
piecemeal amendments and submit each separately to the people for
ratification, we are nonetheless persuaded that (1) that there is no
proper submission of title proposed amendment in question within the
meaning and intendment of Section 1 of Article XV of the Constitution,
and (2) that the forthcoming election is not the proper election
envisioned by the same provision of the Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission
on
Elections1 and Philippine Constitution Association vs. Commission on
Elections,2 expounded his view, with which we essentially agree, on
the minimum requirements that must be met in order that there can be
a proper submission to the people of a proposed constitutional
amendment. This is what he said:
... amendments must be fairly laid before the people for their blessing
or spurning. The people are not to be mere rubber stamps. They are
not to vote blindly. They must be afforded ample opportunity to mull
over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word "submitted" can only mean
that the government, within its maximum capabilities, should strain
every effort to inform citizen of the provisions to be amended, and the
proposed amendments and the meaning, nature and effects thereof.
By this, we are not to be understood as saying that, if one citizen or
100 citizens or 1,000 citizens cannot be reached, then there is no
submission within the meaning of the word as intended by the framers
of the Constitution. What the Constitution in effect directs is that the
government, in submitting an amendment for ratification, should put
every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of
ratification or rejection. For we have earlier stated, one thing is
submission and another is ratification. There must be fair submission,
intelligent consent or rejection." .
The second constitutional objection was given expression by one of the
writers of this concurring opinion, in the following words:
I find it impossible to believe that it was ever intended by its framers
that such amendment should be submitted and ratified by just "a
majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification", if the concentration of the
people's attention thereon is to be diverted by other extraneous issues,
such as the choice of local and national officials. The framers of the
Constitution, aware of the fundamental character thereof, and of the
need of giving it as much stability as is practicable, could have only
meant that any amendments thereto should be debated, considered
and voted upon an election wherein the people could devote undivided
attention to the subject.4
True it is that the question posed by the proposed amendment, "Do
you or do you not want the 18-year old to be allowed to vote?," would
seem to be uncomplicated and innocuous. But it is one of life's verities
that things which appear to be simple may turn out not to be so simple
after all.
A number of doubts or misgivings could conceivably and logically
assail the average voter. Why should the voting age be lowered at all,
in the first place? Why should the new voting age be precisely 18
years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-
year old as mature as the 21-year old so that there is no need of an
educational qualification to entitle him to vote? In this age of
permissiveness and dissent, can the 18-year old be relied upon to vote
with judiciousness when the 21-year old, in the past elections, has not
performed so well? If the proposed amendment is voted down by the
people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed
amendment ratified at this particular time? Do some of the members of
the Convention have future political plans which they want to begin to
subserve by the approval this year of this amendment? If this
amendment is approved, does it thereby mean that the 18-year old
should now also shoulder the moral and legal responsibilities of the 21-
year old? Will he be required to render compulsory military service
under the colors? Will the age of contractual consent be reduced to 18
years? If I vote against this amendment, will I not be unfair to my own
child who will be 18 years old, come 1973? .
The above are just samplings from here, there and everywhere — from
a domain (of searching questions) the bounds of which are not
immediately ascertainable. Surely, many more questions can be added
to the already long litany. And the answers cannot be had except as
the questions are debated fully, pondered upon purposefully, and
accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and
by election time will not be, sufficiently informed of the meaning, nature
and effects of the proposed constitutional amendment. They have not
been afforded ample time to deliberate thereon conscientiously. They
have been and are effectively distracted from a full and dispassionate
consideration of the merits and demerits of the proposed amendment
by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom of
the proposed amendment.
Upon the above disquisition, it is our considered view that the
intendment of the words, "at an election at which the amendments are
submitted to the people for their ratification," embodied in Section 1 of
Article XV of the Constitution, has not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court penned by Justice
Barredo, characterized by clarity and vigor, its manifestation of fealty to
the rule of law couched in eloquent language, that commands assent.
As the Constitution occupies the topmost rank in the hierarchy of legal
norms, Congress and Constitutional Convention alike, no less than this
Court, must bow to its supremacy. Thereby constitutionalism asserts
itself. With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as far as
the acceptance of the conclusion reached. The question presented is
indeed novel, not being controlled by constitutional prescription,
definite and certain. Under the circumstances, with the express
recognition in the Constitution of the powers of the Constitutional
Convention to propose amendments, I cannot discern any objection to
the validity of its action there being no legal impediment that would call
for its nullification. Such an approach all the more commends itself to
me considering that what was sought to be done is to refer the matter
to the people in whom, according to our Constitution, sovereignty
resides. It is in that sense that, with due respect, I find myself unable to
join my brethren.
I. It is understandable then why the decisive issue posed could
not be resolved by reliance on, implicit in the petition and the answer of
intervenors, such concepts as legislative control of the constitutional
convention referred to by petitioner on the one hand or, on the other,
the theory of conventional sovereignty favored by intervenors. It is
gratifying to note that during the oral argument of petitioner and
counsel for respondents and intervenors, there apparently was a
retreat from such extreme position, all parties, as should be the case,
expressly avowing the primacy of the Constitution, the applicable
provision of which as interpreted by this Court, should be controlling on
both Congress and the Convention. It cannot be denied though that in
at least one American state, that is Pennsylvania, there were decisions
announcing the doctrine that the powers to be exercised by a
constitutional convention are dependent on a legislative grant, in the
absence of any authority conferred directly by the fundamental law.
The result is a convention that is subordinate to the lawmaking body.
Its field of competence is circumscribed. It has to look to the latter for
the delimitation of its permissible scope of activity. It is thus made
subordinate to the legislature. Nowhere has such a view been more
vigorously expressed than in the Pennsylvania case of Wood's
Appeal.1 Its holding though finds no support under our constitutional
provision.
It does not thereby follow that while free from legislative control, a
constitutional convention may lay claim to an attribute sovereign in
character. The Constitution is quite explicit that it is to the people, and
to the people alone, in whom sovereignty resides.2 Such a prerogative
is therefore withheld from a convention. It is an agency entrusted with
41
the responsibility of high import and significance it is true; it is denied
unlimited legal competence though. That is what sovereignty connotes.
It has to yield to the superior force of the Constitution. There can then
be no basis for the exaggerated pretension that it is an alter ego of the
people. It is to be admitted that there are some American state
decisions, the most notable of which is Sproule v. Fredericks,3 a
Mississippi case, that dates back to 1892, that yield a different
conclusion. The doctrine therein announced cannot bind us. Our
Constitution makes clear that the power of a constitutional convention
is not sovereign. It is appropriately termed constituent, limited as it is to
the purpose of drafting a constitution or proposing revision or
amendments to one in existence, subject in either case to popular
approval.
The view that commends itself for acceptance is that legislature and
constitutional convention, alike recognized by the Constitution, are
coordinate, there being no superiority of one over the other. Insofar as
the constituent power of proposing amendments to the Constitution is
concerned, a constitutional convention enjoys a wide sphere of
autonomy consistently with the Constitution which can be the only
source of valid restriction on its competence. It is true it is to the
legislative body that the call to a convention must proceed, but once
convened, it cannot in any wise be interfered with, much less controlled
by Congress. A contrary conclusion would impair its usefulness for the
delicate, and paramount task assigned to it. A convention then is to be
looked upon as if it were one of the three coordinate departments
which under the principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly subject to its
jurisdiction. A succinct statement of the appropriate principle that
should govern the relationship between a constitutional convention and
a legislative body under American law is that found in Orfield's work.
Thus: "The earliest view seems to have been that a convention was
absolute. The convention was sovereign and subject to no restraint. On
the other hand, Jameson, whose views have been most frequently
cited in decisions, viewed a convention as a body with strictly limited
powers, and subject to the restrictions imposed on it by the legislative
call. A third and intermediate view is that urged by Dodd — that a
convention, though not sovereign, is a body independent of the
legislature; it is bound by the existing constitution, but not by the acts of
the legislature, as to the extent of its constituent power. This view has
become increasingly prevalent in the state decisions."4
2. It is to the Constitution, and to the Constitution alone then, as
so vigorously stressed in the opinion of the Court, that any limitation on
the power the Constitutional, Convention must find its source. I turn to
its Article XV. It reads: "The Congress in joint session assembled, by a
vote of three fourths of all the Members of the Senate and of the House
of Representatives voting separately, may propose amendments to this
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted
to the people for their ratification."
Clearly, insofar as amendments, including revision, are concerned,
there are two steps, proposal and thereafter ratification. Thus as to the
former, two constituent bodies are provided for, the Congress of the
Philippines in the mode therein provided, and a constitutional
convention that may be called into being. Once assembled, a
constitutional convention, like the Congress of the Philippines,
possesses in all its plenitude the constituent power. Inasmuch as
Congress may determine what amendments it would have the people
ratify and thereafter take all the steps necessary so that the approval or
disapproval of the electorate may be obtained, the convention likewise,
to my mind, should be deemed possessed of all the necessary
authority to assure that whatever amendments it seeks to introduce
would be submitted to the people at an election called for that purpose.
It would appear to me that to view the convention as being denied a
prerogative which is not withheld from Congress as a constituent body
would be to place it in an inferior category. Such a proposition I do not
find acceptable. Congress and constitutional convention are agencies
for submitting proposals under the fundamental law. A power granted
to one should not be denied the other. No justification for such a drastic
differentiation either in theory or practice exists.
Such a conclusion has for me the added reinforcement that to require
ordinary legislation before the convention could be enabled to have its
proposals voted on by the people would be to place a power in the
legislative and executive branches that could, whether by act or
omission, result in the frustration of the amending process. I am the
first to admit that such likelihood is remote, but if such a risk even if
minimal could be avoided, it should be, unless the compelling force of
an applicable constitutional provision requires otherwise. Considering
that a constitutional convention is not precluded from imposing
additional restrictions on the powers of either the executive or
legislative branches, or, for that matter, the judiciary, it would appear to
be the better policy to interpret Article XV in such a way that would not
sanction such restraint on the authority that must be recognized as
vested in a constitutional convention. There is nothing in such a view
that to my mind would collide with a reasonable interpretation of Article
XV. It certainly is one way by which freed from pernicious abstractions,
it would be easier to accommodate a constitution to the needs of an
unfolding future. That is to facilitate its being responsive to the
challenge that time inevitably brings in its wake.
 EDDIE B. MONTECLARO, petitioner,
From such an approach then, I am irresistibly led to the conclusion that vs.
the challenged resolution was well within the power of the convention. THE COMMISSION ON ELECTIONS, et al., respondents.
That would be to brush aside the web of unreality spun from a too-
restrictive mode of appraising the legitimate scope of its competence. G.R. No. L-35942 January 22, 1973
That would be, for me, to give added vigor and life to the conferment of
authority vested in it, attended by such grave and awesome SEDFREY A. ORDOÑEZ, et al., petitioners,
responsibility. vs.
THE NATIONAL TREASURER OF THE PHILIPPINES, et al.,
3. It becomes pertinent to inquire then whether the last respondents.
sentence of Article XV providing that such amendment shall be valid
when submitted and thereafter approved by the majority of the votes G.R. No. L-35948 January 22, 1973
cast by the people at an election is a bar to the proposed submission. It
is the conclusion arrived at by my brethren that there is to be only one VIDAL TAN, et al., petitioners,
election and that therefore the petition must be sustained as only when vs.
the convention has finished its work should all amendments proposed COMMISSION ON ELECTIONS, et al., respondents.
be submitted for ratification. That is not for me, and I say this with
respect, the appropriate interpretation. It is true that the Constitution G.R. No. L-35953 January 22, 1973
uses the word "election" in the singular, but that is not decisive. No
undue reliance should be accorded rules of grammar; they do not exert JOSE W. DIOKNO, et al., petitioners,
a compelling force in constitutional interpretation. Meaning is to be vs.
sought not from specific language in the singular but from the mosaic THE COMMISSION ON ELECTIONS, respondents.
of significance derived from the total context. It could be, if it were not
thus, self-defeating. Such a mode of construction does not commend G.R. No. L-35961 January 22, 1973
itself. The words used in the Constitution are not inert; they derive
vitality from the obvious purposes at which they are aimed. Petitioner's JACINTO JIMENEZ, petitioner,
stress on linguistic refinement, while not implausible does not, for me, vs.
carry the day. COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35965 January 22, 1973

It was likewise argued by petitioner that the proposed amendment is
provisional and therefore is not such as was contemplated in this
article. I do not find such contention convincing. The fact that the
Constitutional Convention did seek to consult the wishes of the people
by the proposed submission of a tentative amendatory provision is an
argument for its validity. It might be said of course that until impressed
with finality, an amendment is not to be passed upon by the electorate.
There is plausibility in such a view. A literal reading of the Constitution
would support it. The spirit that informs it though would not, for me, be
satisfied. From its silence I deduce the inference that there is no
repugnancy to the fundamental law when the Constitutional
Convention ascertains the popular will. In that sense, the Constitution,
to follow the phraseology of Thomas Reed Powel, is not silently silent
but silently vocal. What I deem the more important consideration is that
while a public official, as an agent, has to locate his source of authority
in either Constitution or statute, the people, as the principal, can only
be limited in the exercise of their sovereign powers by the express
terms of the Constitution. A concept to the contrary would to my way of
thinking be inconsistent with the fundamental principle that it is in the
people, and the people alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope
of its authority, an action to restrain or prohibit respondent Commission
on Elections from conducting the plebiscite does not lie. It should not
be lost sight of that the Commission on Elections in thus being charged
with such a duty does not act in its capacity as the constitutional
agency to take charge of all laws relative to the conduct of election.
That is a purely executive function vested in it under Article X of the
Constitution.5 It is not precluded from assisting the Constitutional
Convention if pursuant to its competence to amend the fundamental
law it seeks, as in this case, to submit a proposal, even if admittedly
tentative, to the electorate to ascertain its verdict. At any rate, it may be
implied that under the 1971 Constitutional Convention Act, it is not to
turn a deaf ear to a summons from the Convention to aid it in the
legitimate discharge of its functions.6
The aforesaid considerations, such as they are, but which for me have
a force that I mind myself unable to overcome, leave me no alternative
but to dissent from my brethren, with due acknowledgement of course
that from their basic premises, the conclusion arrived at by them
cannot be characterized as in any wise bereft of a persuasive quality of
a high order.
G.R. No. L-35925 January 22, 1973
CHARITO PLANAS, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35929 January 22, 1973
PABLO C. SANIDAD, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35940 January 22, 1973
GERARDO ROXAS, etc., et al. petitioners,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35941 January 22, 1973
RAUL M. GONZALES, petitioner,
vs.
THE HONORABLE COMMISSION ON ELECTIONS, et al.,
respondents.
G.R. No. L-35979 January 22, 1973
ERNESTO HIDALGO, petitioner,
vs.
COMMISSION ON ELECTIONS, et al., respondents.
Ramon A. Gonzales for petitioner Charito Planas.
Pablito V. Sanidad and Gerardo L. Catipon for petitioner Pablo C.
Sanidad.
Jovito R. Salonga and Associates and Rodrigo Law Office for
petitioners Gerardo Roxas, etc., et al.
Quijano and Arroyo for petitioner Eddie B. Monteclaro.
Sedfrey A. Ordonez and Associates for petitioners Sedfrey A.
Ordonez, et al.
Lorenzo M. Tañada for petitioners Vidal Tan, et al.
Francis E. Garchitorena for petitioners Jose W. Diokno, et al.
Jacinto Jimenez in his own behalf.
Raul M. Gonzales in his own behalf.
Ernesto Hidalgo in his own behalf.
Office of the Solicitor General Estelito P. Mendoza, Assistant
Solicitor General Conrado T. Limcaoco, Solicitor Vicente V.
Mendoza and Solicitor Reynato S. Puno for respondents.
CONCEPCION, C.J.:
On March 16, 1967, Congress of the Philippines passed Resolution
No. 2, which was amended by Resolution No. 4 of said body, adopted
on June 17, 1969, calling a Convention to propose amendments to the
Constitution of the Philippines. Said Resolution No. 2, as amended,
was implemented by Republic Act No. 6132, approved on August 24,
1970, pursuant to the provisions of which the election of delegates to
said Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1,
1971. While the Convention was in session on September 21, 1972,
the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the Convention
approved its Proposed Constitution of the Republic of the Philippines.
The next day, November 30, 1972, the President of the Philippines
issued Presidential Decree No. 73, "submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention, and
appropriating funds therefor," as well as setting the plebiscite for said
ratification or rejection of the Proposed Constitution on January 15,
1973.

42
Soon after, or on December 7, 1972, Charito Planas filed, with this "[2] Reforms instituted under Martial Law;
Court, Case G. R. No. L-35925, against the Commission on Elections,
the Treasurer of the Philippines and the Auditor General, to enjoin said "[3] The holding of a plebiscite on the proposed new Constitution
"respondents or their agents from implementing Presidential Decree and when (the tentative new date given following the postponement of
No. 73, in any manner, until further orders of the Court," upon the the plebiscite from the original date of January 15 are February 19 and
grounds, inter alia, that said Presidential Decree "has no force and March 5);
effect as law because the calling ... of such plebiscite, the setting of
guidelines for the conduct of the same, the prescription of the ballots to "[4] The opening of the regular session slated on January 22 in
be used and the question to be answered by the voters, and the accordance with the existing Constitution despite Martial Law." [Bulletin
appropriation of public funds for the purpose, are, by the Constitution, Today, January 3, 1973.]
lodged exclusively in Congress ...," and "there is no proper submission
to the people of said Proposed Constitution set for January 15, 1973, 8. That it was later reported that the following are to be the
there being no freedom of speech, press and assembly, and there forms of the questions to be asked to the Citizens Assemblies: —
being no sufficient time to inform the people of the contents thereof."
"[1] Do you approve of the New Society?
Substantially identical actions were filed, on December 8, 1972, by
Pablo C. Sanidad against the Commission on Elections (Case G.R. "[2] Do you approve of the reform measures under martial law?
No. L-35929); on December 11, 1972, by Gerardo Roxas, et al.,
against the Commission on Elections, the Director of Printing, the "[3] Do you think that Congress should meet again in regular
National Treasurer and the Auditor General (Case G.R. No. L-35940), session?
by Eddie B. Monteclaro against the Commission on Elections and the
Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey "[4] How soon would you like the plebiscite on the new
A. Ordoñez, et al. against the National Treasurer and the Commission Constitution to be held?" [Bulletin Today, January 5, 1973;
on Elections (Case G.R. No. L-35942); on December 12, 1972, by
Vidal Tan, et al., against the Commission on Elections, the Treasurer 9. That the voting by the so-called Citizens Assemblies was
of the Philippines, the Auditor General and the Director of Printing announced to take place during the period from January 10 to January
(Case G.R. No. L-35948), and by Jose W. Diokno and Benigno S. 15, 1973;
Aquino against the Commission on Elections (Case G.R. No. L-35953);
on December 14, 1972, by Jacinto Jimenez against the Commission 10 That on January 10, 1973, it was reported that one more
on Elections, the Auditor General, the Treasurer of the Philippines and question would be added to the four (4) questions previously
the Director of the Bureau of Printing (Case G.R. No. L-35961), and by announced, and that the forms of the questions would be as follows: —
Raul M. Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor General (Case "[1] Do you like the New Society?
G. R. No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo
against the Commission on Elections, the Secretary of Education, the "[2] Do you like the reforms under martial law?
National Treasurer and the Auditor General (Case G.R. No. L-35979).
"[3] Do you like Congress again to hold sessions?
In all these cases, except the last (G.R. No. L-35979), the respondents
were required to file their answers "not later than 12: 00 (o'clock) noon "[4] Do you like the plebiscite to be held later?
of Saturday, December 16, 1972." Said cases were, also, set for
hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. "[5] Do you like the way President Marcos is running the affairs
The hearing was continued on December 19, 1972. By agreement of of the government?" [Bulletin Today, January 10, 1973; additional
the parties, the aforementioned last case - G.R. No. L-35979 — was, question emphasis.]
also, heard, jointly with the others, on December 19, 1972. At the
conclusion of the hearing, on that date, the parties in all of the 11. That on January 11, 1973, it was reported that six (6) more
aforementioned cases were given a short period of time within which questions would be submitted to the so-called Citizens Assemblies: —
"to submit their notes on the points they desire to stress." Said notes
were filed on different dates, between December 21, 1972, and "[1] Do you approve of the citizens assemblies as the base of
January 4, 1973. popular government to decide issues of national interests?

Meanwhile, or on December 17, 1972, the President had issued an "[2] Do you approve of the new Constitution?
order temporarily suspending the effects of Proclamation No. 1081, for
the purpose of free and open debate on the Proposed Constitution. On "[3] Do you want a plebiscite to be called to ratify the new
December 23, the President announced the postponement of the Constitution?
plebiscite for the ratification or rejection of the Proposed Constitution.
No formal action to this effect was taken until January 7, 1973, when "[4] Do you want the elections to be held in November, 1973 in
General Order No. 20 was issued, directing "that the plebiscite accordance with the provisions of the 1935 Constitution ?
scheduled to be held on January 15, 1973, be postponed until further
notice." Said General Order No. 20, moreover, "suspended in the "[5] If the elections would not be held, when do you want the next
meantime" the "order of December 17, 1972, temporarily suspending elections to be called?
the effects of Proclamation No. 1081 for purposes of free and open
debate on the proposed Constitution." "[6] Do you want martial law to continue?" [Bulletin Today,
January 11, 1973; emphasis supplied.]
In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain, for the 12. That according to reports, the returns with respect to the six
time being, from deciding the aforementioned cases, for neither the (6) additional questions quoted above will be on a form similar or
date nor the conditions under which said plebiscite would be held were identical to Annex "A" hereof;
known or announced officially. Then, again, Congress was, pursuant to
the 1935 Constitution, scheduled to meet in regular session on January 13. That attached to page 1 of Annex "A" is another page, which
22, 1973, and since the main objection to Presidential Decree No. 73 we marked as Annex "A-1", and which reads: —
was that the President does not have the legislative authority to call a
plebiscite and appropriate funds therefor, which Congress "COMMENTS ON
unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President — reportedly after QUESTION No. 1
consultation with, among others, the leaders of Congress and the
Commission on Elections — the Court deemed it more imperative to In order to broaden the base of citizens' participation in government.
defer its final action on these cases.
QUESTION No. 2
In the afternoon of January 12, 1973, the petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that said case be decided "as But we do not want the Ad Interim Assembly to be convoked. Or if it is
soon as possible, preferably not later than January 15, 1973." It was to be convened at all, it should not be done so until after at least seven
alleged in said motion, inter alia: (7) years from the approval of the New Constitution by the Citizens
Assemblies.
6. That the President subsequently announced the issuance of
Presidential Decree No. 86 organizing the so-called Citizens QUESTION No. 3
Assemblies, to be consulted on certain public questions [Bulletin
Today, January 1, 1973]; The vote of the Citizens Assemblies should already be considered the
plebiscite on the New Constitution.
7. That thereafter it was later announced that "the Assemblies
will be asked if they favor or oppose — If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
"[1] The New Society;
QUESTION No. 4
43

We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections
will be enough for stability to be established in the country, for reforms
to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him
to exercise his powers with more authority. We want him to be strong
and firm so that he can accomplish all his reform programs and
establish normalcy in the country. If all other measures fail, we want
President Marcos to declare a revolutionary government along the
lines of the new Constitution without the ad interim Assembly."
Attention is respectfully invited to the comments on "Question No. 3",
which reads: —
"QUESTION No. 3
The vote of the Citizens Assemblies should be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
This, we are afraid, and therefore allege, is pregnant with ominous
possibilities.
14. That, in the meantime, speaking on television and over the
radio, on January 7, 1973, the President announced that the limited
freedom of debate on the proposed Constitution was being withdrawn
and that the proclamation of martial law and the orders and decrees
issued thereunder would thenceforth strictly be enforced [Daily
Express, January 8, 1973];
15. That petitioners have reason to fear, and therefore state, that
the question added in the last list of questions to be asked to the
Citizens Assemblies, namely: —
Do you approve of the New Constitution?" —
in relation to the question following it: —
"Do you still want a plebiscite to call to ratify the new Constitution?" —
would be an attempt to by-pass and short-circuit this Honorable Court
before which the question of the validity of the plebiscite on the
proposed Constitution is now pending;
16. That petitioners have reason to fear, and therefore allege,
that if an affirmative answer to the two questions just referred to will be
reported then this Honorable Court and the entire nation will be
confronted with a fait accompli which has been attained in a highly
unconstitutional and undemocratic manner;
17. That the fait accompli would consist in the supposed
expression of the people approving the proposed Constitution;
18. That, if such event would happen, then the case before this
Honorable Court could, to all intents and purposes, become moot
because, petitioners fear, and they therefore allege, that on the basis
of such supposed expression of the will of the people through the
Citizens Assemblies, it would be announced that the proposed
Constitution, with all its defects, both congenital and otherwise, has
been ratified;
19. That, in such a situation, the Philippines will be facing a real
crisis and there is likelihood of confusion if not chaos, because then,
the people and their officials will not know which Constitution is in
force.
20. That the crisis mentioned above can only be avoided if this
Honorable Court will immediately decide and announce its decision on
the present petition;
21. That with the withdrawal by the President of the limited
freedom of discussion on the proposed Constitution which was given to
the people pursuant to Sec. 3 of Presidential Decree No. 73, the
opposition of respondents to petitioners' prayer that the proposed
plebiscite be prohibited has now collapsed and that a free plebiscite
can no longer be held.
At about the same time, a similar prayer was made in a "manifestation"
filed by the petitioners in L-35949, "Gerardo Roxas, et al. v.
Commission on Elections, et al.," and
L-35942, "Sedfrey A. Ordonez, et al. v. The National Treasurer, et al."
44
The next day, January 13, 1973, which was a Saturday, the Court
issued a resolution requiring the respondents in said three (3) cases to
comment on said "urgent motion" and "manifestation," "not later than
Tuesday noon, January 16, 1973." Prior thereto, or on January 15,
1973, shortly before noon, the petitioners in said Case G.R. No. L-
35948 filed a "supplemental motion for issuance of restraining order
and inclusion of additional respondents," praying —
... that a restraining order be issued enjoining and restraining
respondent Commission on Elections, as well as the Department of
LocaI Governments and its head, Secretary Jose Rono; the
Department of Agrarian Reforms and its head, Secretary Conrado
Estrella; the National Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; their deputies, subordinates and
substitutes, and all other officials and persons who may be assigned
such task, from collecting, certifying, and announcing and reporting to
the President or other officials concerned, the so-called Citizens'
Assemblies referendum results allegedly obtained when they were
supposed to have met during the period comprised between January
10 and January 15, 1973, on the two questions quoted in paragraph 1
of this Supplemental Urgent Motion.
In support of this prayer, it was alleged —
3. That petitioners are now before this Honorable Court in order
to ask further that this Honorable Court issue a restraining order
enjoining herein respondents, particularly respondent Commission on
Elections as well as the Department of Local Governments and its
head, Secretary Jose Rono; the Department of Agrarian Reforms and
its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; and
their deputies, subordinates and/or substitutes, from collecting,
certifying, announcing and reporting to the President the supposed
Citizens' Assemblies referendum results allegedly obtained when they
were supposed to have met during the period between January 10 and
January 15, 1973, particularly on the two questions quoted in
paragraph 1 of this Supplemental Urgent Motion;
4. That the proceedings of the so-called Citizens' Assemblies
are illegal, null and void particularly insofar as such proceedings are
being made the basis of a supposed consensus for the ratification of
the proposed Constitution because: —
(a) The elections contemplated in the Constitution, Article XV, at
which the proposed constitutional amendments are to be submitted for
ratification, are elections at which only qualified and duly registered
voters are permitted to vote, whereas, the so-called Citizens'
Assemblies were participated in by persons 15 years of age and older,
regardless of qualifications or lack thereof, as prescribed in the
Election Code;
(b) Elections or plebiscites for the ratification of constitutional
amendments contemplated in Article XV of the Constitution have
provisions for the secrecy of choice and of vote, which is one of the
safeguards of freedom of action, but votes in the Citizens' Assemblies
were open and were cast by raising hands;
(c) The Election Code makes ample provisions for free, orderly
and honest elections, and such provisions are a minimum requirement
for elections or plebiscites for the ratification of constitutional
amendments, but there were no similar provisions to guide and
regulate proceedings of the so-called Citizens' Assemblies;
(d) It is seriously to be doubted that, for lack of material time,
more than a handful of the so-called Citizens' Assemblies have been
actually formed, because the mechanics of their organization were still
being discussed a day or so before the day they were supposed to
begin functioning: —
"Provincial governors and city and municipal mayors had been meeting
with barrio captains and community leaders since last Monday
(January 8, 1973) to thresh out the mechanics in the formation of the
Citizens' Assemblies and the topics for discussion," (Bulletin Today,
January 16, 1973).
It should be recalled that the Citizens' Assemblies were ordered formed
only at the beginning of the year (Daily Express, January 1, 1971), and
considering the lack of experience of the local organizers of said
assemblies, as well as the absence of sufficient guidelines for
organizations, it is too much to believe that such assemblies could be
organized at such a short notice.
5. That for lack of material time, the appropriate amended
petition to include the additional officials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion could
not be completed because, as noted in the Urgent Motion of January
12, 1973, the submission of the proposed Constitution to the Citizens'
Assemblies was not made known to the public until January 11, 1973.
But be that as it may, the said additional officials and agencies may be
properly included in the petition at bar because: —
(a) The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of "any
similar decree, proclamation, order or instruction"
so that Presidential Decree No. 86, insofar at least as it attempts to
submit the proposed Constitution to a plebiscite by the so-called
Citizens' Assemblies, is properly in issue in this case, and those who
enforce, implement, or carry out the said Presidential Decree No. 86,
and the instructions incidental thereto clearly fall within the scope of
this petition;
(b) In their petition, petitioners sought the issuance of a writ of
preliminary injunction restraining not only the respondents named in
the petition but also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar decree, order,
instruction, or proclamation in relation to the holding of a plebiscite on
January 15, 1973 for the purpose of submitting to the Filipino people
for their ratification or rejection the 1972 Draft or proposed Constitution
approved by the Constitutional Convention on November 30, 1972';
and finally,
(c) Petitioners prayed for such other relief which may be just
and equitable. (p. 39, Petition).
"Therefore, viewing the case from all angles, the officials and
government agencies mentioned in paragraph 3 of this Supplemental
Urgent Motion, can lawfully be reached by the processes of this
Honorable Court by reason of this petition, considering, furthermore,
that the Commission on Elections has under our laws the power,
among others, of: —
"a) Direct and immediate supervision and control over national,
provincial, city, municipal and municipal district officials required by law
to perform duties relative to the conduct of elections on matters
pertaining to the enforcement of the provisions of this Code ... ."
(Election Code of 1971, Sec. 3).
6. That unless the petition at bar is decided immediately and
the Commission on Elections, together with the officials and
government agencies mentioned in paragraph 3 of this Supplemental
Urgent Motion are restrained or enjoined from collecting, certifying,
reporting or announcing to the President the results of the alleged
voting of the so-called Citizens' Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the
cause of freedom and democracy, and the petitioners herein because:
(a) After the result of the supposed voting on the questions
mentioned in paragraph 1 hereof shall have been announced, a conflict
will arise between those who maintain that the 1935 Constitution is still
in force, on the one hand, and those who will maintain that it has been
superseded by the proposed Constitution, on the other, thereby
creating confusion, if not chaos;
(b) Even the jurisdiction of this Court will be subject to serious
attack because the advocates of the theory that the proposed
Constitution has been ratified by reason of the announcement of the
results of the proceedings of the so-called Citizens' Assemblies will
argue that, General Order No. 3, which shall also be deemed ratified
pursuant to the Transitory Provisions of the proposed Constitution, has
placed Presidential Decrees Nos. 73 and 86 beyond the reach and
jurisdiction of this Honorable Court.
On the same date — January 15, 1973 — the Court passed a
resolution requiring the respondents in said case G.R. No. L-35948 to
"file an answer to the said motion not later than 4 P.M., Tuesday,
January 16, 1973," and setting the motion for hearing "on January 17,
1973, at 9:30 a.m." While the case was being heard, on the date last
mentioned, at noontime, the Secretary of Justice called on the writer of
this opinion and said that, upon instructions of the President, he (the
Secretary of Justice) was delivering to him (the writer) a copy of
Proclamation No. 1102, which had just been signed by the President.
Thereupon, the writer returned to the Session Hall and announced to
the Court, the parties in G.R. No. L-35948 — inasmuch as the hearing
in connection therewith was still going on — and the public there
present that the President had, according to information conveyed by
the Secretary of Justice, signed said Proclamation No. 1102, earlier
that morning. Thereupon, the writer read Proclamation No. 1102 which
is of the following tenor:
BY THE PRESIDENT OF THE PHILIPPINES
PROCLAMATION NO. 1102
ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF
THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to ratification by the
Filipino people;
WHEREAS, Citizens Assemblies were created in barrios, in
municipalities and in districts/wards in chartered cities pursuant to
45
Presidential Decree No. 86, dated December 31, 1972, composed of
all persons who are residents of the barrio, district or ward for at least
six months, fifteen years of age or over, citizens of the Philippines and
who are registered in the list of Citizen Assembly members kept by the
barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were established precisely to
broaden the base of citizen participation in the democratic process and
to afford ample opportunity for the citizenry to express their views on
important national issues;
WHEREAS, responding to the clamor of the people and pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before the Citizens Assemblies or Barangays:
Do you approve of the New Constitution? Do you still want a pIebiscite
to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five
hundred sixty-one (14,976,561) members of all the Barangays
(Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight
hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to
be called to ratify the new Constitution, fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered
that there was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a vote in a
plebiscite;
WHEREAS, since the referendum results show that more than ninety-
five (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng Mga
Barangay has strongly recommended that the new Constitution should
already be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution,
do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
has been ratified by an overwhelming majority of all the votes cast by
the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused
the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our
Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS
President of the Philippines
By the President:
ALEJANDRO MELCHOR
Executive Secretary
Such is the background of the cases submitted for Our determination.
After admitting some of the allegations made in the petition in L-35948
and denying the other allegations thereof, respondents therein alleged
in their answer thereto, by way of affirmative defenses: 1) that the
"questions raised" in said petition "are political in character"; 2) that
"the Constitutional Convention acted freely and had plenary authority to
propose not only amendments but a Constitution which would
supersede the present Constitution"; 3) that "the President's call for a
plebiscite and the appropriation of funds for this purpose are valid"; 4)
that "there is not an improper submission" and "there can be a
plebiscite under Martial Law"; and 5) that the "argument that the
Proposed Constitution is vague and incomplete, makes an
unconstitutional delegation of power, includes a referendum on the
proclamation of Martial Law and purports to exercise judicial power" is
"not relevant and ... without merit." Identical defenses were set up in
the other cases under consideration.
Immediately after the hearing held on January 17, 1973, or since the
afternoon of that date, the Members of the Court have been
deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each
Member write his own views thereon and that thereafter the Chief
Justice should state the result or the votes thus cast on the points in
issue. Hence, the individual views of my brethren in the Court are set
forth in the opinions attached hereto, except that, instead of writing
their separate opinions, some Member have preferred to merely concur
in the opinion of one of our colleagues.
What follows is my own view on these cases.
The first question for Our determination is whether We have authority
to pass upon the validity of Presidential Decree No. 73, in view of the
Solicitor General's allegation to the effect that said question is a
political one. I am of the opinion — on which the Members of the Court
are unanimous — that the contention of the Solicitor General is
untenable and that the issue aforementioned is a justiciable one.
Indeed, the contested decree purports to have the force and effect of a
legislation, so that the issue on the validity thereof is manifestly a
justiciable one, on the authority, not only of a long list of cases in which
the Court has passed upon the constitutionality of statutes and/or acts
of the Executive,1 but, also, of no less than that of Subdivision (1) of
Section 2, Article VIII of the 1935 Constitution,2 which expressly
provides for the authority of this Court to review cases involving said
issue.
Petitioners in G.R. No. L-35948 maintain that the 1971 Constitutional
Convention had exceeded its authority in approving Sections 2, 3 (par.
2) and 12 of Article XVII of the proposed Constitution. Regardless of
the wisdom and moral aspects of the contested provisions of the
proposed Constitution, it is my considered view that the Convention
was legally free to postulate any amendment it may deem fit to
propose — save perhaps what is or may be inconsistent with what is
now known, particularly in international law, as Jus Cogens — not only
because the Convention exercised sovereign powers delegated thereto
by the people — although insofar only as the determination of the
proposals to be made and formulated by said body is concerned —
but, also, because said proposals cannot be valid as part of our
Fundamental Law unless and until "approved by the majority of the
votes cast at an election at which" " said proposals "are submitted to
the people for their ratification," as provided in Section 1 of Art. XV of
the 1935 Constitution.
As regards the authority of the President to issue Presidential Decree
No. 73, "submitting to the Filipino people (on January 15, 1973) for
ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention and
appropriating funds therefor," I find it unnecessary, for the time being,
to pass upon such question, because the plebiscite ordained in said
Decree has been postponed. In any event, should the plebiscite be
scheduled to be held at any time later, the proper parties may then file
such action as the circumstances may justify.
With respect to the question whether or not martial law per se affects
the validity of a submission to the people for ratification of specific
proposals for amendment of the Constitution, I consider this matter as
one intimately and necessarily related to the validity of Proclamation
No. 1102 of the President of the Philippines. This question has not
been explicitly raised, however, in any of the cases under
consideration, said cases having been filed before the issuance of
such Proclamation, although the petitioners in L-35948 maintain that
the issue on the referral of the Proposed Constitution to the Citizens'
Assemblies may be deemed and was raised in their Supplemental
Motion of January 15, 1973. At any rate, said question has not been
adequately argued by the parties in any of these cases, and it would
not be proper to resolve such a transcendental question without the
most thorough discussion possible under the circumstances. In
fairness to the petitioners in L-35948 and considering the surrounding
circumstances, I believe, therefore, that, instead of dismissing the case
as moot and academic, said petitioners should be given a reasonable
period of time within which to move in the premises.
Recapitulating the views expressed by the Members of the Court, the
result is this:
1. There is unanimity on the justiciable nature of the issue on
the legality of Presidential Decree No. 73.
2. On the validity of the decree itself, Justices Makalintal,
Castro, Fernando, Teehankee, Esguerra and myself, or six (6)
Members of the Court, are of the opinion that the issue has become
moot and academic, whereas Justices Barredo, Makasiar and Antonio
voted to uphold the validity of said Decree.
3. On the authority of the 1971 Constitutional Convention to
pass the proposed Constitution or to incorporate therein the provisions
contested by the petitioners in
L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine
that the issue has become moot and academic. Justices Fernando,
Barredo, Makasiar, Antonio and myself have voted to uphold the
authority of the Convention.
4. Justice Fernando, likewise, expressed the view that the 1971
Constitutional Convention had authority to continue in the performance
of its functions despite the proclamation of Martial Law. In effect,
Justices Barredo, Makasiar and Antonio hold the same view.
5. On the question whether the proclamation of Martial Law
affected the proper submission of the proposed Constitution to a
plebiscite, insofar as the freedom essential therefor is concerned,
Justice Fernando is of the opinion that there is a repugnancy between
the election contemplated under Art. XV of the 1935 Constitution and
the existence of Martial Law, and would, therefore, grant the petitions
were they not moot and academic. Justices Barredo, Antonio and
Esguerra are of the opinion that that issue involves question of fact
which cannot be predetermined, and that Martial Law per se does not
necessarily preclude the factual possibility of adequate freedom for the
purposes contemplated.
46
6. On Presidential Proclamation No. 1102, the following views
were expressed:
a. Justices Makalintal, Castro, Fernando, Teehankee,
Makasiar, Esguerra and myself are of the opinion that question of
validity of said Proclamation has not been properly raised before the
Court, which, accordingly, should not pass upon such question.
b. Justice Barredo holds that the issue on the constitutionality
of Proclamation No. 1102 has been submitted to and should be
determined by the Court, and that the "purported ratification of the
Proposed Constitution ... based on the referendum among Citizens'
Assemblies falls short of being in strict conformity with the
requirements of Article XV of the 1935 Constitution," but that such
unfortunate drawback notwithstanding, "considering all other related
relevant circumstances, ... the new Constitution is legally recognizable
and should be recognized as legitimately in force.
c. Justice Zaldivar maintains unqualifiedly that the Proposed
Constitution has not been ratified in accordance with Article XV of the
1935 Constitution, and that, accordingly, it has no force and effect
whatsoever.
d. Justice Antonio feels "that the Court is not competent to act"
on the issue whether the Proposed Constitution has been ratified by
the people or not, "in the absence of any judicially discoverable and
manageable standards," since the issue "poses a question of fact.
7. On the question whether or not these cases should
dismissed, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra voted in the affirmative, for the reasons set forth in their
respective opinions. Justices Fernando, Teehankee and the writer
similarly voted, except as regards Case No. L-35948 as to which they
voted to grant to the petitioners therein a reasonable period of time
within which to file appropriate pleadings should they wish to contest
the legality of Presidential Proclamation No. 1102. Justice Zaldivar
favors the granting of said period to the petitioners in said Case No.
L-35948 for the aforementioned purpose, but he believes, in effect, that
the Court should go farther and decide on the merits everyone of the
cases under Consideration.
WHEREFORE, all of the aforementioned cases are hereby dismissed,
without special pronouncement as to costs.
It is so ordered.
Makasiar, J., concur.
Separate Opinions
MAKALINTAL and CASTRO, JJ., concurring:
The principal relief prayed for in the petition in G.R. NO. L-35948 is to
declare "Sections 2, 3 (par 2), and 12 of Article XVII, of the 1972 Draft
on proposed Constitution approved by the 1971 Constitutional
Convention on November 30, 1972 as well as Presidential Decree No.
73 or any similar decree, proclamation, order or instruction
unconstitutional, null and void, ..." Basically, although couched in
different language, it is the same relief sought in the other petitions.
Article XVII contains the transitory provisions. Section 2 thereof refers
to the membership of the interim National Assembly, which includes,
among others, "those Delegates to the (1971) Constitutional
Convention who have opted to serve therein by voting affirmatively for
this Article." Section 3 (par. 2) provides that "(A)ll proclamations,
orders, decrees, instructions, and acts promulgated, issued, or done by
the incumbent President shall be part of the law of the land, and shall
remain valid, legal, binding, and effective even after lifting of martial
law or the ratification of this Constitution, unless modified, revoked, or
superseded by subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by the regular National
Assembly." And Section 12 states in part: "All treaties, executive
agreements, and contracts entered into by the Government, or any
subdivision, agency, or instrumentality thereof, including government-
owned or controlled corporations, are hereby recognized as legal,
valid, and binding ..."
Presidential Decree No. 73, issued on December 1, 1972, called for a
plebiscite to be held on January 15, 1973, wherein the proposed
Constitution would be submitted for ratification. At the same time it
appropriated the sum of P15,000,000.00 for that purpose. It was
primarily to stop the said plebiscite from being held that these petitions
were filed.
The specific grounds alleged in the petition in G.R. No. L-35948 to
support the relief prayed for which are fairly representative of the
others, read as follows:
I. The President of the Philippines has no power to call a
plebiscite for the ratification or rejection of the 1972 Draft; neither has
he the power to appropriate funds for the holding of the said plebiscite.
II. The 1972 Draft is vague and incomplete. It makes an
unconstitutional delegation of power. And it contains provisions which
were beyond the power of the convention to enact. All these have
made the 1972 Draft unfit for "proper submission" to the people.
III. The period of time between November 30, 1972 when the
1972 Draft was approved, and January 15, 1973, the date the
plebiscite will be held, is too inadequate for the people to be informed
of the contents of the 1972 Draft, and to study and discuss them so
that they could thereafter intelligently cast their vote.
Towards the end of December 1972 it was announced in the
newspapers that the President had postponed the plebiscite to a date
to be fixed later, although tentatively February 19 and March 5, 1973
were mentioned. The announcement was made officially in General
Order No. 20, dated January 7, 1973. Then on January 17, 1973 the
President issued Proclamation No 1102, certifying that the proposed
Constitution had been ratified by the Citizens Assemblies created
under Presidential Decree No. 86, issued on December 31, 1972, and
that therefore it had become effective.
In view of the foregoing developments which supervened after the
petitions herein and the answers thereto were filed and the cases
argued by the parties, the issues raised in grounds Nos. I and III
abovequoted have become moot. The plebiscite sought to be enjoined
did not take place on January 15, 1973. Indeed, its postponement to
some indefinite date in the future rendered the petition also premature.
But of course whether the petition is moot or premature makes no
material difference as far as these cases are concerned, since the
announced ratification of the proposed Constitution by the Citizens
Assemblies has made it unlikely that any plebiscite will be held.
With respect to ground No. II we are of the opinion that the question of
whether or not the proposals referred to by the petitioners, specifically
Secs. 2, 3 (par. 2) and 12, were proper for submission to the people for
ratification has likewise become moot because of the President's
Proclamation No. 1102 certifying that such ratification has already
taken place. If they may be assailed at all as invalid it should be not as
mere proposals by the Convention but already as provisions of the
Constitution, and certainly not in the present cases in the state in which
they have been submitted for decision.
There was an attempt on the part of counsel for the petitioner in G.R.
No. L-35948 during the oral argument on his urgent motion for early
decision to question the validity of Proclamation No. 1102. This
question is not within the purview of the petition and involves issues
which have neither been raised nor argued herein, having arisen in a
new and different setting and frame of reference, and hence may only
be ventilated, if at all, in an appropriate case or at least through
appropriate pleadings so that the parties may be duly heard.
We therefore vote to dismiss the petitions.
TEEHANKEE, J., concurring:
Without prejudice to the filing of a separate extended opinion, I concur
with the Chief Justice in his separate opinion and add the following
brief comments.
The Solicitor General's Office on behalf of respondents manifested as
of its last comment of January 16, 1973 that "(W)ith respect to the
statement in the Joint Manifestation that Presidential Decree No. 73
which calls for the holding of the plebiscite on January 15, 1973 still
stands, the plebiscite scheduled to be held on January 15, 1973 has
been postponed until further notice by virtue of General Order No. 20,
dated January 7, 1973, of President Ferdinand E. Marcos."
On the other hand, Presidential Proclamation No. 1102 issued on
January 17, 1973 recites as a premise thereof, inter alia, that "since the
referendum results show that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies)1 are in favor of the
New Constitution, the Katipunan ng Mga Barangay has strongly
recommended that the new Constitution should already be deemed
ratified by the Filipino people."2
Under the circumstances of record from which it appears that no
election (or plebiscite) for the purpose has been called and held,3 it
would be premature for now to hold that the averred ratification of the
Constitution proposed by the 1971 Constitutional Convention has met
the requirements of Article XV of the Constitution that "(S)uch
amendments shall be valid as part of this Constitution when approved
by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification" or of section 16 of
Article XVII of the proposed Constitution itself that "(T)his Constitution
47
shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite called for the purpose."
With the result reached by the Court, and the rendering moot of the
issues raised against the validity of Presidential Decree No. 73, I do
not deem it necessary to reach and pass upon the grave constitutional
question in its two aspects (a) whether the Constitutional Convention
may assume the power to call the plebiscite (a power historically
exercised by Congress) and to appropriate funds therefor against the
Constitutional mandate lodging such power in Congress4 and (b)
whether the Constitutional Convention may delegate such assumed
power to the President — absent any showing of willful default or
incapacity on the part of Congress to discharge it.
By the same token, it is unnecessary to resolve the equally grave
question of whether certain matters adopted and proposed by the 1971
Constitutional Convention were ultra vires, e.g. sections 2 and 15 of
Article XVII (Transitory Provisions) providing for the delegates of said
Convention to constitute the majority of an interim National Assembly
and empowering such Assembly "upon special call by the interim
Prime Minister ..., by a majority vote of all its members, (to) propose
amendments to this Constitution (which) shall take effect when ratified
in accordance with Article Sixteen hereof", which would appear to be in
violation of the accepted principles governing constitutional
conventions that they become functus officio upon completion of their
function to formulate and adopt amendments to the Constitution5 for
the people's ratification or rejection in the manner ordained in the
Constitution6 — since such convention controlled interim National
Assembly may continue proposing Constitutional amendments by mere
majority vote in contrast to the regular national assembly which would
require "a vote of three-fourths of all its members" to propose such
amendments.7
ANTONIO, J., concurring:
The historical events of the last few days have rendered the petitions
(G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-
35953, L-35961, L-35965 and L-35979), including the supplemental
petition moot and should be dismissed.
Without prejudice to a more extended opinion later, I concur in the view
that implicit in the power of the Constitutional Convention to propose
amendments to the Constitution is its authority to order an election at
which such amendments are to be submitted to the people for
ratification and, within the narrow range implied as necessary for the
business of submitting the amendments to the people, the capacity to
appropriate money for the expenses necessary to make such submittal
effective. Independently therefore of the question, whether or not the
President may legislate during martial law, it was certainly within the
authority of the President to issue such measures, acting as agent for
and in behalf of the Constitutional Convention to call for a plebiscite,
prescribe its terms and appropriate money for said purpose.
The opinion that the President, as agent of the Convention, could
device other forms of election to determine the will of the majority of
the people on the ratification of the proposed Constitution, establishes
a principle that is, not entirely devoid of precedent. The present
Constitution of the United States was ratified in a manner not in accord
with the first Constitution of the United States, which was the Articles of
Confederation. The violation was deliberate, but Madison, however
defended the method provided for the adoption of the new Constitution
by saying that it was a case "of absolute necessity" which forced the
framers of the new Constitution to resort "to the great principle of self-
preservation; to the transcendental law of nature and of nature's God,
which declares that the safety and happiness of society are the objects
at which all political institutions aim, and to which all such institutions
must be sacrificed." While I agree that this precedent is never one that
would justify governmental organs in ignoring constitutional restraints,
the fact is the people themselves had already acted by adopting the
procedure devised in the expression of their sovereign will.
To the contention of one of the petitioners, that the draft of the
Constitution contains provisions beyond the power of the Constitutional
Convention to submit for ratification, suffice it to state that there is
nothing that can legally prevent a convention from actually revising the
entire Constitution for, in the final analysis, it is the approval of the
people that gives validity to any proposal of amendment or revision.
I concur in the opinion that martial rule per se, in the light of
contemporary events, does not warrant the presumption that the
results of the plebiscite of ratification is not a genuine and free
expression of the popular will.
It poses a question of fact which, in the absence of any judicially
discoverable and manageable standards, or where the access to
relevant information is insufficient to assure the correct determination
of the issue, I do not feel that this Court is competent to act.
If the ratification of the new Constitution and the new government
erected thereon, is not what it is represented to be, the expression of
the will of the majority or the people are dissatisfied, they have ample
remedy. The instrument itself provides amendment and change. For
the only and proper way in which it should be remedied, is the people
acting as a body politic. These questions relate to matters not to be
settled on strict legal principles. For the new Constitution has been
promulgated and great interests have already arisen under it. The
political organ in the government has recognized it and has
commenced the implementation of its provisions. Under such
circumstances the Court should therefore refrain from precipitating
impossible situations which might otherwise rip the delicate social and
political fabric.
The theory of presumptive collective duress under martial rule is
perhaps valid in any other clime. In the case at bar, it flies against the
stark reality of the factual setting. To insist upon it is to ignore the
historical facts that culminated in the national referendum. The people
wanted a revolutionary change. They were aware of the manifold
problems of the nation — its poverty, corruption, injustice, subversion
and insurgency and criminality. The sweeping and dramatic reforms
during the last few months buoyed up the hopes of the people that thru
the instrumentality of a new charter these gains of the commonweal
may be conserved and further enlarged. In the ambience of such a
historical setting, it would have been presumptuous to assume that the
qualified voters in the reportedly more than fourteen million Filipinos
who voted for the new charter, did so not with freedom but from fear.
Such a posture, I cannot accept, for that would demean the courage,
integrity and wisdom of the people themselves.
In all other respects, the opinion of Justice Barredo, merits my
concurrence.
ESGUERRA, J., concurring:
I vote to deny all petitions seeking to prohibit the holding of the
plebiscite on January 15, 1973, on the Constitution of November 30,
1972, as provided for in Presidential Decree No. 73 of December 1,
1972. Specifically, I vote to deny the supplemental petition in G.R. No.
L-35948 seeking to restrain the Citizens Assemblies' referendum in
connection with that ratification of said Constitution.
My reasons are simple and need no elaborate and lengthy discussion.
1. In the first place, these cases have been moot and academic
as the holding of the plebiscite scheduled for January 15, 1973, has
been indefinitely postponed under General Order No. 20 dated January
7, 1973. Consequently, there is nothing more to prohibit or restrain.
2. In the second place, the supplemental petition in G.R. No. L-
35948 to restrain the respondents, including three additional parties,
namely Secretary Jose Rono as head of the Department of Local
Governments; Secretary Conrado Estrella, as head of the Department
of Agrarian Reforms and Secretary Guillermo de Vega, as Chairman of
the National Ratification Coordinating Committee, who were not duly
served with summons and have never been heard, has been rendered
futile as the Citizens Assemblies have expressed their decisions to
ratify the 1972 Constitution and said officers have reported to the
President and on the basis thereof he has announced the ratification of
said Constitution by Proclamation No. 1102, dated January 17, 1973,
effective 12: 00 o'clock noon of said date. Hence there is also nothing
more to restrain or prohibit as the acts sought to be stopped have been
fully accomplished.
I do not attempt to assail the validity of Proclamation No. 1102 as the
Court is not in possession of any evidence to overthrow the veracity of
the facts therein related, there being no case formally filed with the
Court attacking the validity of said Proclamation, and, moreover, the
parties responsible for the holding of the referendum or plebiscite by
the Citizens Assemblies, which ratified the proposed Constitution, have
not being impleaded and afforded a chance to be heard. In brief, there
is absolutely no basis for making a pronouncement on the validity of
the said proclamation, and to do so would be simply tiding rough shod
over the well-beaten road of due process of law which basically
requires notice and full and fair hearing.
Without any competent evidence I do not pretend to know more about
the circumstances attending the holding of said referendum or
plebiscite and I cannot say that it was not plainfully held. I assume that
what the proclamation says on its face is true and until overcome by
satisfactory evidence, of which there is absolutely nothing before Us, I
cannot subscribe to the claim that such plebiscite was not held
accordingly.
At this stage, whether or not there was a valid ratification of the 1972
Constitution cannot be resolved without raising the legality of the
Government under which we are now operating as of January 17,
1973. Hence We would be confronted with a political question which is
beyond the jurisdiction of this Court to settle. I accept as a fait accompli
that the Constitution adopted on November 30, 1972, has been duly
ratified, and I consider that any assault against it as well as the manner
of its ratification has been innocuous. Having been invested with full
force and effect by the approval of an overwhelming majority of the
people, to mount an attack against it now would be nothing less than
fighting the windmills in Don Quijote fashion. I do not wish to emulate
that unique literary character and I prefer to take things in the light of
the stark realities of the present. I have always adhered to the idea that
the practical approach to any question yields the happiest solution,
48
instead of soaring in flights of fantasies and losing one's self in idle
metaphysical adventures.
FERNANDO, J., concurring and dissenting:
While I am in agreement with the resolution of the Court dismissing the
petitions for their being moot and academic, I feel that a brief separate
opinion expressing my views on certain legal issues would not be
amiss, considering the transcendental character of the suits before us.
Indisputably, they involve the crucial role assumed by the Executive in
the proposed submission of the new Constitution, perhaps unavoidably
thrust upon him in view of the declaration of martial law. It is reassuring
that there is a reiteration of the principle that the amending process,
both as to proposal and ratification, raises a judicial question.
Notwithstanding the vigor and plausibility with which the Solicitor-
General stressed what for him is the political nature of the controversy,
with considerable support from authorities on constitutional law partial
to the judicial restraint approach, it would be, for me, a plain abdication
of the trust reposed in this Court, if it would rule itself as devoid of
authority to inquire into the validity of the steps taken towards the
ratification of the proposed amendments. The most that I can concede
is that where the effect of the nullification sought is to prevent the
sovereign people from expressing their will, the utmost caution and
circumspection should be exercised.
Now, as to the merits of the issues that would have called for
resolution, were it not for the matter becoming moot and academic.
While not squarely raised, the question of whether or not a
constitutional convention could go on meeting with martial law in force
has a prejudicial aspect. Following the ruling in Duncan v.
Kahanamoku1 that Legislature and courts continue to function even
under such period, being not merely cherished governmental
institutions but indispensable to the operation of government, there is
no doubt in my mind that the same principle should likewise apply to a
constituent body. To the contention pressed by Senator Tanada, as
counsel, in Tan v. Commission on Elections, that the proposed
Constitution contains provisions beyond the power of the Constitutional
Convention to submit for ratification, it seems to me a sufficient answer
that once convened, the area open for deliberation to a Constitutional
Convention and thereafter to be embodied in proposed amendments if
approved by the majority, is practically limitless.2 In that sense, it can
be truly stated that the Convention can propose anything but conclude
nothing. As was intimated by Justice Makasiar, speaking for the Court
in Del Rosario v. Comelec,3 "whether the Constitutional Convention
will only propose amendments to the Constitution or entirely overhaul
the present Constitution and propose an entirely new Constitution
based on an ideology foreign to the democratic system, is of no
moment; because the same will be submitted to the people for
ratification. Once ratified by the sovereign people, there can be no
debate about the validity of the new Constitution."4 Once its work of
drafting has been completed, it could itself direct the submission to the
people for ratification as contemplated in Article XV of the Constitution.
Here it did not do so. With Congress not being in session, could the
President, by the decree under question, call for such a plebiscite?
Under such circumstances, a negative answer certainly could result in
the work of the Convention being rendered nugatory. The view has
been repeatedly expressed in many American state court decisions
that to avoid such undesirable consequence, the task of submission
becomes ministerial, with the political branches devoid of any
discretion as to the holding of an election for that purpose.5 Nor is the
appropriation by him of the amount necessary to be considered as
offensive to the Constitution. If it were done by him in his capacity as
President, such an objection would indeed have been formidable, not
to say insurmountable.6 If the appropriation were made in his capacity
as agent of the Convention to assure that there be the submission to
the people, then such an argument loses force. The Convention itself
could have done so.7 It is understandable why it should be thus. If it
were otherwise, then a legislative body, the appropriating arm of the
government, could conceivably make use of such authority to compel
the Convention to submit to its wishes, on pain of being rendered
financially distraught. The President then, if performing his role as its
agent, could be held as not devoid of such competence. That brings
me to the argument as to the absence of proper submission,
developed with the customary learning and persuasiveness by
Senators Tanada and Salonga. With all due recognition of their
forensic skill, I prefer to rely on what, for me, is the correct principle
announced in the opinion of the Chief Justice in Gonzales v.
Commission on Elections:8 "A considerable portion of the people may
not know how over 160 of the proposed maximum of representative
districts are actually apportioned by R.B.H. No. 1 among the provinces
in the Philippines. It is not improbable, however, that they are not
interested in the details of the apportionment, or that a careful reading
thereof may tend in their simple minds, to impair a clear vision thereof.
Upon the other hand, those who are more sophisticated, may enlighten
themselves sufficiently by reading the copies of the proposed
amendments posted in public places, the copies kept in the polling
places and the text of contested resolutions, as printed in full on the
back of the ballots they will use. It is, likewise, conceivable that as
many people, if not more, may fail to realize or envisage the effect of
R.B.H. No. 3 upon the work of the Constitutional Convention or upon
the future of our Republic. But, then, nobody can foretell such effect
with certainty. From our viewpoint, the provisions of Article XV of the
Constitution are satisfied so long as the electorate knows that R.B.H.
No. 3 permits Congressmen to retain their seats as legislators, even if
they should run for and assume the functions of delegates to the
Convention. We are impressed by the factors considered by our
distinguished and esteemed brethren, who opine otherwise, but, we
feel that such factors affect the wisdom of Republic Act No. 4913 and
that of R.B.H. Nos. 1 and 3, not the authority of Congress to approve
the same. The system of checks and balances underlying the judicial
power to strike down acts of the Executive or of Congress transcending
the confines set forth in the fundamental laws is not in derogation of
the principle of separation of powers, pursuant to which each
department is supreme within its own sphere. The determination of the
conditions under which the proposed amendments shall be submitted
to the people is concededly a matter which falls within the legislative
sphere. We do not believe it has been satisfactorily shown that
Congress has exceeded the limits thereof in enacting Republic Act No.
4913."9
Nonetheless, were it not for the fact that the matter had become moot
and academic, I am for granting the petitions in view of what, for me, is
the repugnancy between an election contemplated under Article XV of
the Constitution in herein the voters can freely register their will,
whether it be for approval or disapproval, and the existence of martial
law, with its connotation that dissent may be fraught with unpleasant
consequences. While it is to be admitted that the Administration has
done its best to alleviate such a state of mind, I cannot in all honesty
say, although I am prepared to concede that I may labor under a sense
of undue pessimism, that the momentum of fear necessarily incident to
such a regime has been reduced to a minimum. I fail to see then the
existence of that indispensable condition of freedom that would
validate the ratification process as contemplated by the Constitution.
As to the validity of Proclamation No. 1102, adherence to what for me
are fundamental concepts of judicial review precludes it this state the
expression of any opinion. It would, at the very least, be premature. 10
BARREDO, J., concurring and dissenting:
With full consciousness of the transcendental consequences of the
action the Court is taking in these cases, not only upon me personally
and as a member of the Supreme Court but upon the Court itself as the
guardian of the Constitution, which all its members have solemnly
sworn in the name of God to uphold and defend, and after long and
serious consideration of all aspects and angles of the issues submitted
for resolution by the parties, I have come to the sincere conviction that
the petitions herein should be dismissed, including the supplemental
petition filed by petitioners in G.R. No. L-35948, with the consequent
denial of the motion for the issuance of a writ of preliminary injunction
or a temporary restraining order enjoining in effect any act which would
imply giving force and effect to the 1972 Constitution which President
Ferdinand E. Marcos proclaimed as ratified in Proclamation No. 1102
as of twelve o'clock noon on January 17, 1973. Without prejudice to a
more extended opinion later, my reasons for this conclusion are as
follows:
As of today, two matters present themselves for Our immediate
resolution, namely, (1) the petitions in all of these cases praying for a
writ of prohibition against the implementation of Presidential Decree
No. 73 calling for and setting the date and the manner of holding the
plebiscite for the ratification of the Constitution proposed by the 1971
Constitutional Convention, the date set being January 15, 1973, and
(2) the supplemental petition, with prayer for the issuance of a writ of
preliminary injunction or a restraining order, in G.R. No. L-35948 to
enjoin whatever ratification of the said Constitution would be proposed
by the Citizens Assemblies, established under Presidential Decrees
Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would
give force and effect to such ratification, should it be proclaimed,
which, by the way, everybody knows was already done at about 11:00
o'clock A.M. on January 17, 1973.
As to No. (1), I vote to dismiss the original petitions in all these cases
for the simple reason that the alleged grounds thereof are either
untenable or have been premature, if not somehow moot and
academic, at least, meanwhile that the plebiscite had not been reset.1
(a) There is no question that the matter of whether or not
Presidential Decree No. 73 is valid is a justiciable one and not political,
hence within the jurisdiction of this Court to resolve. Tolentino v.
Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is
sufficient authority for this pose.
(b) On the other hand, I am of the considered view that it is not
within the competence of this Court to pass on the propriety or wisdom
of any part or provision of the Constitution as proposed by the
Convention. The Convention was called for the purpose of proposing
amendments to the Constitution, and like any Constitutional
Convention it was completely and absolutely free to make any
proposal, whether or not consonant with the 1935 Constitution. The
theory of ultra-vires proposals advanced by petitioners is to me without
sufficient legal basis.
(c) Much less can I accept the view that the Convention's task
was limited to proposing specific amendments to become either as
new parts of the existing Constitution or as replacements of
corresponding portions thereof, for even if there were any theoretical
49
basis for petitioners' posture in this regard, I feel safe in saying that
when the people elected the delegates to the Convention and when the
delegates themselves were campaigning such limitation of the scope of
their function and objective was not in their minds. Withal, considering
the number and nature of the proposals already being publicly
discussed before and after said election, to follow petitioners'
suggestion would have produced confusion and probably
insurmountable difficulties even in the framing and phrasing alone of
the amendments so that they may easily and clearly jibe with the other
parts of the existing Constitution.
(d) Regarding the alleged lack of legislative power of the
President to issue Presidential Decree No. 73, I maintain that
independently of the issue of whether or not the President may
legislate during martial law relative to matters not connected with the
requirements of suppressing the armed insurgency and the
maintenance of peace and order, it was within the prerogative of the
President to issue said decree, considering that in doing so he merely
acted as agent for and on behalf of the Constitutional Convention,
which, in my opinion written for the Court in the Tolentino case, I
individually held, had the power to call for a plebiscite, prescribe its
terms and appropriate money for the purpose. Disregarding immaterial
niceties of form and language, and looking to its obvious intent and
purpose, I hold that Resolution No. 5843 of the Convention, approved
on November 22, 1972, delegated to the President in plenary terms the
calling of the plebiscite, and since the ordinary rules requiring the
laying down of standards in the delegation of legislative functions
binding Congress do not, to my mind, apply to the Convention, if only
because the latter occupies a higher plane of legislative authority than
Congress in matters related to the accomplishment of its objectives, it
follows that Presidential Decree No. 73 was validly issued.
(e) All the other objections to said decree were rendered
premature, if not somehow moot and academic for the time being,
because under General Order No. 20, dated January 7, 1973, the
President postponed the plebiscite until further notice. Such being the
case, nobody could positively say that the President would not allow
Congress to pass a plebiscite law or that he would not lift martial law
by then or that the contracts, executive orders, treaties, proclamations,
decrees, etc. that are supposed to be ratified together with the
Constitution itself would not be published, for the proper information of
all concerned before the next date to be fixed for the plebiscite. In other
words, no one could say that appropriate steps would not be taken to
meet the objections alleged in the petitions before the plebiscite would
be actually held. It is, indeed, judicially improper to pass upon any
issue the factual setting whereof may still be materially altered.
(f) On whether or not the holding of the plebiscite during martial
law would materially affect proper submission insofar as the freedom
supposed to attend it is concerned, I agree with the respondents that
this is a question of fact which cannot be pre-determined and that it
would, therefore, be the burden of the petitioners to show by evidence
that such freedom had been actually and substantially impaired. When
one recalls that measures were taken by the President precisely to
provide the widest opportunity for free debate and voting, consistent
with the nature and purpose of the plebiscite but at the same time
safeguarding the objectives of the martial law proclaimed by him, which
measures he had to withdraw only when in his judgment he deemed it
to be so required by public safety, it does not seem altogether logical to
assume that the existence of martial law per se deprives the people of
the essence of free suffrage. Martial law implemented Philippine style,
to use an apt expression, does not carry with it necessarily all the
implications thereof as these are known in other lands and in the
recorded precedents.
Coming now to No. (2), it is evident that under the theory above-
referred to that as agent of the Convention, the President could devise
other forms of plebiscite to determine the will of the majority of the
people vis-a-vis the ratification of the proposed Constitution, I believe
that the establishment of the Citizens' Assemblies as a mode of such
plebiscite cannot be said to be clearly beyond the contemplation of
Article XV of the Constitution of 1935. It must be observed, however,
that under Article X of the same Constitution, it is the Commission on
Elections that is supposed to "have exclusive charge of the
enforcement and administration of all laws relative to the conduct of
elections ..." and this function cannot be removed from the Commission
whether by Congress or by the President.2 This constitutional point
seems to have been overlooked in the proceedings in the Assemblies,
since it does not appear from any of the official documents relative
thereto that the same have been undertaken or held under the charge
of the Commission.
Besides, I feel I cannot bear evidence to history and the future
generations of our people that in fact, the answering of the questions
and the canvassing and reporting of the referendum in the Assemblies
throughout the country were done exactly in the manner and form that
they should have been done, in the light of traditional concepts related
to plebiscites as we know them. Otherwise stated, I am not satisfied
that Article XV of the 1935 Constitution has been fully complied with.
By this, I do not mean that it was not right to use the Assemblies; what
I am saying is that, on the basis of facts I am taking judicial notice of,
the procedure of answering, canvassing and reporting adopted, which,
by the way, was far from being uniform in all the Assemblies, was not
up to standard in many places, judged on the basis of the requirements
of the prevailing election laws.
On the other hand, in spite of these considerations, I do not find myself
in a position to deny the factual assertion in Proclamation 1102 that
more than 14 million Filipinos have manifested approval of the
proposed Constitution and would consider the same as already ratified
by them. I understand that this number was determined on the basis of
sworn reports of the respective heads of the Assemblies. Such being
the case, I am faced with proof which I have no way of duly
controverting that our people have spoken. I consider it undemocratic,
impractical and unrealistic to close my eyes to that vital fact. And since
in a democracy the will of the people is the supreme law, I hold that it
would be improper for the Court to enjoin any act done or to be done
pursuant to the proclamation in dispute. I believe that whatever legal
flaws there might have been in the procedure pursued leading to the
issuance of said proclamation may be deemed already cured by the
apparent will of the people however imperfectly, under legal and
technical standards, the same has been expressed. To grant the
prayer of petitioners now would be tantamount to defying the very
sovereign people by whom and for whom the Constitution has been
ordained, absent any demonstrated facts showing that they prefer the
status quo, which the Convention was precisely called to change
meaningfully, to the wide-range reforms everybody can see are being
effected in practically all levels of the government and all sectors of
society. Withal, to issue any such injunctive writ at this stage of
denouncement of national events is to court consequences too horrible
to imagine.
To the possible stricture that persons less than twenty-one years of
age were allowed to participate and vote in said Assemblies, my
reaction is that I am not sure that Article V of the 1935 Constitution,
viewed in the light of the perceptible universal drift towards the
enfranchisement of the youth, may not be construed as permitting
legislative enlargement of the democratic base of government
authority, since the said Article does not say that those thereby
qualified are the only ones who can vote - the language being simply
that "suffrage may be exercised by male citizens of the Philippines not
otherwise disqualified by law, who are twenty-one years of age or over
and are able to read and write, and who shall have resided in the
Philippines for one year and in the municipality wherein they propose
to vote for at least six months preceding the election. ...," which, to me,
strictly speaking, only guarantees the right of suffrage to those
enumerated but does not deny to the legislature the power to include
others who in its wisdom it believes should also enjoy such right. In any
event, it is elementary under our election law and jurisprudence that
should it appear that disqualified persons have succeeded in voting in
an election, such election is not thereby necessarily rendered wholly
illegal, but the votes of such persons are only correspondingly
deducted after being duly identified. Accordingly, on the premise that
the inclusion of those below 21 is illegal, their votes may be deducted
from the 14,000,000 or so aforementioned, and I am certain no one will
deny that the remainder would still be substantially sufficient to
constitute a recognizable mandate of the people, for under normal
circumstances which must be presumed, and making the most liberal
estimate, the votes of the under aged voters among them could not
have been more than one-third of said number. Indeed, at the most, if
this point had been considered before the issuance of Proclamation
1102, an injunction might have issued to restrain the under aged
persons from participating in the referendum, but now that the result
thereof is a fait accompli, I cannot see how such a possible flaw can be
of any material consequence.
As may be noted, I have taken it upon myself to rule on the legal
issues surrounding Proclamation 1102. Indeed, I feel very strongly that,
as a member of the Supreme Court, it is my duty to our people to
enlighten them as to said issues. The eyes of the whole country have
been pinned on Us since the Convention approved the draft of the
Constitution in question on November 30, 1972, and the President
called, on December 1, 1972, thru Presidential Decree No. 73, for a
plebiscite scheduled to be held on January 15, 1973, for its ratification.
Concerned citizens purporting to speak for the people have precisely
come to the Court challenging the legality of the procedure thus
pursued as not being in consonance with the amending process
specified in the 1935 Constitution and praying that the Court enjoin the
continued adoption of said procedure. Everybody knows that they
came to Us with the conviction that the Court would not hesitate to play
its role as the final authority designated by the Constitution itself to
interpret and construe its provisions.
Accordingly, We gave due course to their petitions, and for two days,
December 18 and 19, We heard brilliant and learned counsel of both
sides argue eloquently, even with obvious patriotic fervor but in view of
the circumstances related in the separate opinion of the Chief Justice,
We were unable to decide the cases even as late as January 13, 1973.
Petitioners then came with motions urgently seeking an early decision,
and soon after, or, on January 15, 1973, petitioners in G.R. No. L-
35948 filed a supplemental petition relative to the latest developments
involving the creation of Citizens Assemblies and the persistent reports
indicating almost to a certainty that a proclamation would be issued
doing away with the usual plebiscite procedure and already
proclaiming the proposed Constitution as ratified and in force, on the
basis alone of the favorable result of a referendum in said Assemblies.
50
Their main prayer was for Us to issue a writ of prohibition against the
submission and approval of the reports of the results of said
referendum. We immediately required the respondents to answer the
supplemental petition not later than January 16 and set the case for
hearing on January 17 at 9:30 o'clock in the morning.
In closing his arguments before the Court that fateful morning, Senator
Lorenzo Tanada, the tenacious counsel for petitioners, pleaded
earnestly, even after the Chief Justice had read to him in open session
the text of Proclamation 1102 which had just been delivered by the
Secretary of Justice, that the Court rule squarely on the issues
petitioners have raised. He told Us that it is secondary whether Our
judgment should be favorable or unfavorable to petitioners, what is
most important is for the people to know whether or not the provisions
of the Constitution have been observed.
Indeed, no graver responsibility rests on the shoulders of the Court.
And as I see it, We cannot shirk that responsibility by alleging technical
excuses which I sincerely believe are at best of controversial tenability.
I cannot share the view that the validity and constitutionality of
Proclamation 1102 have not been submitted to Us for resolution in
these proceedings. I maintain that for all intents and purposes, the
supplemental motion of Senator Tanada of January 15 placed those
transcendental issues before Us. Not only in his pleading but more so
in his oral argument, Senator Tanada, with all the vigor of his mind and
the sincere patriotism of his heart, contended that with the creation of
the Citizens Assemblies and the referendum being conducted therein,
and particularly in view of the two questions to be answered, namely,
"Do you approve of the proposed constitution?" and "Do you want the
plebiscite to be held?", there was no doubt that Article XV of the
Constitution was being bypassed and that this Court was being "short-
circuited." In terms that could not have been plainer, he pointed to the
impending probability of the issuance of a proclamation of the nature of
Proclamation 1102, and he prayed eloquently, that We should act
without loss of time to stop the purported reports of the referendum so
as to remove the basis for such feared eventuality. So much so, that
after the Chief Justice read the proclamation to him, he dramatically
exclaimed, "I have been confirmed." Others would have said,
"Consummatum est!"
Under these circumstances, I cannot see how it can be held that We
can refrain from ruling on the legal and constitutional significance of
Proclamation 1102. At the very least, the present state of the case of
Vidal Tan, et al. vs. Comelec, et al., G.R. No. L-35948, imposes upon
Us the ineludible obligation to rule whether or not We should have
enjoined the submission of the reports of the Assemblies, as
demanded by petitioners, it being evident that as Senator Tanada
contended said reports were to be utilized as basis for the issuance of
a proclamation declaring the proposed Constitution as ratified and
already in force. In similar past cases too numerous to cite, this Court
and all courts in the country, I dare say, have always considered the
consummation of a threatened act, after the petition to enjoin it has
been submitted to the court's jurisdiction, as fit subject for its
disposition, within the same proceedings, to the extent that the courts
even issue mandatory injunctions, in appropriate cases, for the
respondents to undo what has already been done without having to
hold any further hearing. It is claimed that the parties must be fully
heard — but have we not heard enough from them? Has not Senator
Tanada presented all his arguments in support of his supplemental
petition? And if he has not, is it the fault of the Court? Is it fair to all
concerned that such possible omission be considered as a ground for
Our withholding Our judgment on what under the law and the rules is
already properly before Us for resolution? Truth to tell, I cannot
imagine a fuller ventilation of the cause of any other petitioner who has
come to this Court than petitioners in G.R. No. L-35948. Rarely has the
Court held hearings for days and more unusually has it given any
counsel almost unlimited time to speak, but these We have done in
these cases. Can any party ask for more? If at all, only the
respondents have not adequately presented their side insofar as the
supplemental petition is concerned, but, again, it cannot be said that
they have not had the opportunity to do so. The Acting Solicitor
General has unqualifiedly filed his answer on behalf of all the
respondents, and to me, his attempt to impress the Court that the new
respondents have not been summoned and that the subject petition is
premised on probabilities and conjectures is of no moment, considering
the grave importance of the issues and the urgent necessity of
disposing them expeditiously and without unnecessary loss of fateful
time. Of course, I respect the reasons of my colleagues who cannot
see it my way, but as far as I am concerned, this is as appropriate a
case and an occasion as any can be to resolve all the fundamental
issues raised by petitioners, and to leave them unresolved now would
be practically inviting some non-conformists to challenge the
Constitution and to keep not only the wheels of the transition at a
standstill, but worse, also the animus of the people in suspended
animation fraught with anxiety, with all the dire consequences such a
situation entails.
Some legalists would call the government under the proclaimed
Constitution a revolutionary government, but the President denies that
it is, because, according to him, it is to operate under a Constitution
ratified by the people. At this crucial moment in the history of the
nation, We need not bother about variant nomenclatures; these can be
subjective and are, in any event, unsubstantial. What is of supreme
and utmost importance is that the people be told what exactly the
situation is, sans the veneer of what might turn out after all to be an
inaccurate appellation. The people must know the real score, and, as a
member of the Supreme Court, I do not hesitate to tell them that, as I
have already explained above, in my honest opinion, the purported
ratification of the Constitution attested in Proclamation 1102 and based
on the referendum among the Citizens Assemblies falls short of being
in strict conformity with the requirements of Article XV of the 1935
Constitution. I must hasten to add, however, that such unfortunate
drawback notwithstanding, and considering all other relevant
circumstances, principally, the naked proof before Us indicating that
the people approve of it, I earnestly and sincerely believe that the new
Constitution is legally recognizable and should be recognized as
legitimately in force.
I reiterate I have no legal means of denying it to be a fact, as stated in
the proclamation, that 14,000,000 Filipinos have manifested in the
referendum in the Citizens Assemblies their approval of this
Constitution. And even if We considered that said referendum was held
under the aegis of full implementation of the martial law proclaimed by
the President under Proclamation 1081, as mandated by General
Order No. 20, We would not be able to ignore that the government
under this Constitution is well organized and is in stable, effective and
complete control of the whole Philippine territory, and what is more
pertinently important, that this Constitution purged as it is now of its
Achilles heel, the Interim National Assembly, may fairly be said to be
acceptable generally to the people, embodying as it does meaningful
reforms designed to check, if not to eradicate the then prevalent
causes of widespread popular restiveness and activism which has
already assumed practically the proportions of an armed insurgency or
rebellion somehow endangering the security and safety of the
constituted government, if not the integrity of the nation. And in
connection with the implementation of martial law thus ordered, as I
have already noted earlier in this opinion, its being done Philippine
style may be of some relevance, since such enforcement is not
characterized by the rigor that the usual concept of martial law
connotes, hence, any suggestion of constructive duress relative to the
proceedings in the Assemblies and the Barangays may not fully hold
water. Upon these premises, it is my considered opinion that if in any
sense the present government and Constitution may be viewed as
revolutionary, because they came into being, strictly speaking, extra-
constitutionally or outside the pale of the 1935 Constitution, they are
nonetheless entitled to be accorded legitimate standing, for all intents
and purposes and for all concerned, under the universally accepted
principle that a revolution, whether violent or bloodless, is illegal only
when it fails to gain the support of the people. Indeed, under these
circumstances, I cannot resist the temptation of asking, is it juridically
possible for this Court to declare unconstitutional and without force and
effect the very Constitution under which it presently exists? I am
inclined to hold that the answer to this question can only be in the
negative. Consequently, petitioners are not entitled to any judicial relief
and, I have no alternative but to vote for the dismissal of the
supplemental petition of January 15, 1973.
In conclusion, I hold that the 1935 Constitution has pro tanto passed
into history and has been legitimately supplanted by the Constitution
now in force by virtue of Proclamation 1102, issued pursuant to the
certified results of the referendum in the Citizens Assemblies all over
the country favoring its adoption and enforcement.
Long live our country, the Philippines! God bless our people, the
Filipino people!
ZALDIVAR, J., dissenting:
I cannot agree with my worthy colleagues who hold the view that the
petitions in all these have become moot and academic simply because
the relief prayed for by petitioners cannot be granted after
Proclamation No. 1102 was issued by the President of the Philippines.
A case does not become moot where there remain substantial rights or
issues that are controverted and which are not settled.1 This Court has
decided cases even if no positive relief, as prayed for by a party in the
case, could be granted, or even if a party has withdrawn his appeal, if
the case presented to the court for resolution is a clear violation of the
Constitution or of fundamental personal rights of liberty and property.2
In the present cases it is in the public interest that this Court renders a
ruling on the transcendental issues brought about by the petition —
issues which must be resolved by this Court as the guardian of the
Constitution of this Republic.
For a comprehensive appraisal of the facts and circumstances relevant
to the resolution of the issues involved in these cases, We shall narrate
pertinent events, as shown in the record.
On December 1, 1972 the President of the Philippines, in his capacity
as Commander-in-Chief of all the Armed Forces of the Philippines and
acting pursuant to Proclamation No. 1081, dated September 21, 1972,
issued Presidential Decree No. 73, submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention, and
appropriating funds for the purpose. The Decree states that the same
51
was issued pursuant to Resolution No. 5843 of the 1971 Constitutional
Convention proposing "to President Ferdinand E. Marcos that a decree
be issued calling a plebiscite for the ratification of the proposed new
Constitution on such appropriate date as he shall determine and
providing for the necessary funds therefor." "3 The decree set the
plebiscite for January 15, 1973 and appropriated the sum of
P15,000,000.00 to carry out the purpose of the decree. The Decree
provided for the publication of the proposed Constitution, the
dissemination of information regarding the proposed Constitution, the
application of the provisions of the Election Code of 1971 to the
plebiscite insofar as they are not inconsistent with the provisions of the
decree, specially stating that the provisions of said Code regarding the
right and obligations of political parties and candidates shall not apply
to the plebiscite. The Decree further provided for a calendar for the
plebiscite, for the registration of voters, for the constitution of the board
of inspectors, for watchers, for precincts and polling places, for the
official ballots to be used, for the preparation and transmission of
plebiscite returns, for the canvass of the returns by the city,
municipality, and the municipal district board of canvassers, for the
canvass by the Commission on Elections and the proclamation of the
results by said Commission, for supplies and services needed for the
holding of the plebiscite, and on the authority given to the Commission
on Elections to promulgate rules and regulations necessary to carry out
the provisions of the Decree.
On December 1, 1972, the President of the Philippines also issued
General Order No. 17, ordering and enjoining the Armed Forces of the
Philippines and all other departments and agencies of the Government
to allow and encourage public and free discussions and debates on the
proposed Constitution before the plebiscite set for January 15, 1973.
During the first half of the month of December 1972, the petitioners, in
the ten cases now before this Court, filed petitions for prohibition with
preliminary injunction, seeking to prevent the holding of the plebiscite
on January 15, 1973. The petitioners question the validity of
Presidential Decree No. 73, principally upon the ground that it is not in
the power of the President of the Philippines to call a plebiscite for the
ratification or rejection of the proposed Constitution and to appropriate
public funds for the purpose. The petitioners also maintain that the
period of only about 45 days from the date of the approval of the
proposed Constitution by the Constitutional Convention on November
30, 1972 to January 15, 1973, was not a sufficient time for the
electorate of this country to be properly informed regarding the
provisions of the proposed Constitution, and the electorate could not
therefore vote intelligently on whether to ratify or to reject the proposed
Constitution, and so there could be no proper submission of the
proposed Constitution to the electorate. The petitioners further
maintain that the country being under martial law there could not be a
free submission of the proposed Constitution to the electorate. In some
of the petitions, the petitioners also maintain that the proposed
Constitution contains provisions which are beyond the power of the
Constitutional Convention to adopt or to propose. All the petitioners
prayed this Court to issue a writ of preliminary injunction or restraining
order to prevent the respondents in each of the petitions from
implementing Presidential Decree No. 73. This Court, however, did not
issue the preliminary injunction, nor the restraining order, prayed for.
This Court required the respondents in each petition to answer the
petition, and set the cases for hearing on the petition for preliminary
injunction and on the merits of the case for December 18, 1972.
Hearings were actually held for two days — on December 18 and 19,
1972.
On December 31, 1972, while these cases were pending before this
Court, the President of the Philippines issued Presidential Decree No.
86 creating the Citizens Assemblies throughout the country. Among
others, Decree No. 86 provides that there is created a citizen assembly
in each barrio in municipalities, and in each district in chartered cities,
provided that in the case of Manila and other chartered cities where
there are no barrios there shall be a citizen assembly in every ward;
that the citizen assemblies shall consist of all persons who are
residents of the barrio, district, or ward for at least six months, 15 years
of age or over, citizens of the Philippines, and who are registered in the
list of citizens assembly members kept by the barrio, district or ward
secretary. As stated in the decree, the purpose of establishing the
citizens assemblies is to broaden the base of the citizens' participation
in the democratic process and to afford ample opportunities for the
citizenry to express their views on important national issues.
On January 5, 1973 the President of the Philippines issued Presidential
Decree No. 86-A which, among others, provided for the submission to
the citizens' assemblies created under Presidential Decree No. 86
questions to be answered, and among those questions are these two:
(1) "Do you approve of the new Constitution?"; (2) "Do you still want a
plebiscite to be called to ratify the new Constitution ?"
On January 7, 1973 the President issued General Order No. 20,
ordering the postponement of the plebiscite that had been scheduled
for January 15, 1973. Said general order reads as follows:
GENERAL ORDER NO. 20
WHEREAS, pursuant to Presidential Decree No. 73 dated December
1, 1972, a plebiscite has been called on January 15, 1973 at which the
proposed Constitution of the Philippines shall be submitted to the
people for ratification or rejection;
WHEREAS, Presidential Decree No. 86, dated December 31, 1972,
created Citizens Assemblies so as to afford ample opportunities for the
citizenry to express their views on important national issues;
WHEREAS, one of the questions presented to the Citizens Assemblies
is: "Do you like the plebiscite on the proposed Constitution to be held
later?
WHEREAS, it is necessary to hold in abeyance the plebiscite until the
people's preference has been ascertained;
NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-
Chief of all the Armed Forces of the Philippines, and pursuant to
Proclamation No. 1081, dated September 21, 1972, do hereby order
that the plebiscite scheduled to be held on January 15, 1973, be
postponed until further notice.
I further order that the provision of Section 3 of Presidential Decree No.
73 insofar as they allow free public discussion of the proposed
Constitution, as well as my order of December 17, 1972, temporarily
suspending the effects of Proclamation No. 1081 for the purposes of
free and open debate on the proposed Constitution, be suspended in
the meantime.
Done in the City of the Manila, this 7th day of January, in the year of
Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS
President
Republic of the Philippines
By the President:
(Sgd.) ALEJANDRO MELCHOR
Executive Secretary
As of the day when the above-quoted General Order No. 20 was
issued these cases were all pending decision before this Court.
At this juncture I am going to particularize my discussion on case G.R.
No. L-35948 (Vidal Tan, et al., petitioners vs. Commission on
Elections, et al., respondents). What I say in connection with the Vidal
Tan case may also be considered in relation with the other cases
before Us.
On January 12, 1973 counsel for the petitioners in the Tan case filed
an "Urgent Motion For Early Decision", alleging, among others, that it
was announced that voting by the Citizens' Assemblies would be held
on January 10 to 15, 1973 whereby the Citizens' Assemblies would be
asked a number of questions, among them the following:
(1) Do you approve of Citizens' Assemblies as the base of
popular government to decide issues of national interests?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify the new
Constitution?
(4) Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
(5) If the election would not be held, when do you want the next
elections to be called?
(6) Do you want martial law to continue?
Counsel for the petitioners also alleged that petitioners had reasons to
fear that the question: "Do you approve of the new Constitution?", in
relation to the question following it: "Do you still want a plebiscite to be
called to ratify the new Constitution?", would be an attempt to bypass
and short-circuit this Court before which the question regarding the
validity of the plebiscite scheduled for January 15, 1973 on the
proposed Constitution was pending resolution. Counsel for petitioners
also alleged that they had reasons to fear "that if an affirmative answer
to the two questions just referred to would be reported then this
Honorable Court and the entire nation would be confronted with a fait
accompli which has been attained in a highly unconstitutional and
undemocratic manner;" and "the fait accompli would consist in the
supposed expression of the people approving the proposed
Constitution." Counsel further states "that if such event would happen
then the case before this Honorable Court could, to all intents and
purposes, become moot because, petitioners fear, and they therefore
allege, that on the basis of such supposed expression of the will of the
people through the Citizens' Assemblies, it would be announced that
the proposed Constitution with all its defects, both congenital and
otherwise, has been ratified" and "that in such a situation, the
Philippines would be facing a real crisis and there is a likelihood of
confusion if not chaos, because then, the people and their officials
would not know which Constitution is in force."4
52
On January 13, 1973 this Court ordered the Solicitor General to
answer the urgent motion of the petitioners, dated January 12, 1973.
On January 15, 1973 counsel for petitioners filed "A Supplemental
Motion for Issuance of Restraining Order and for Inclusion of Additional
Respondents." The respondents sought to be added were the
Department of Local Governments and its head, Secretary Jose Rono;
the Department of Agrarian Reforms and its head, Secretary Conrado
Estrella; and the National Ratification Coordinating Committee and its
chairman, Guillermo de Vega. In their supplemental motion for the
issuance of restraining order enjoining the original respondents, as well
as the additional respondents, and their deputies, subordinates and/or
substitutes from collecting, certifying, announcing and reporting to the
President or other officials concerned, the Citizens' Assembly
referendum results that would be obtained in the voting held during the
period comprised between January 10 and January 15, 1973,
particularly on the two questions: (1) "Do you approve of the new
Constitution?", and (2) "Do you still want a plebiscite to be called for
the ratification of the new Constitution?" Counsel for petitioners further
alleged that for lack of material time the appropriate amended petition
to include the new respondents could not be completed because the
submission of the proposed Constitution to the Citizens' Assemblies
was not made known to the public until January 11, 1973, but
nevertheless the new respondents could properly be included because
in their petition petitioners prayed "for the annulment not only of
Presidential Decree No. 73 but also of any similar decree,
proclamation, order or instruction" so that Presidential Decree Nos. 86
(and 86-A) in so far at least as they attempt to submit the proposed
Constitution to a plebiscite by the Citizens' Assemblies are properly in
issue in the case, and those who enforce, implement and carry out said
Presidential decrees and the instructions incidental thereto clearly fall
within the scope of the petition. Moreover, counsel for petitioners
alleges that in the original petition they prayed for the issuance of a writ
of preliminary injunction restraining not only the original respondents,
but also their agents from the performance of acts, implementing, or
tending to implement, Presidential Decree No. 73 or any other similar
decree, order, instructions, or proclamation in relation to the holding of
the plebiscite in question on January 15, 1973, and that they had also
prayed for such other relief which may be just and equitable. Counsel
for petitioners stressed the plea that unless the petition is decided
immediately and the respondents were restrained or enjoined from
collecting, certifying, reporting, or announcing to the President the
result of the alleged voting of the so-called Citizens' Assemblies
irreparable damage would be caused to the Republic of the
Philippines, to the Filipino people and to the cause of freedom and
democracy, because after the result of the supposed voting on the two
precise questions that they mentioned shall have been announced, a
conflict would arise between those who maintain that the 1935
Constitution is still in force, on the one hand, and those who maintain
that the old Constitution is superseded by the proposed Constitution on
the other hand, thereby creating confusion if not chaos; and that even
the jurisdiction of this Court would be subject to serious attacks
because the advocates of the theory that the proposed Constitution
had been ratified by reason of the announcement of the results of the
proceedings of the Citizens Assemblies would argue that General
Order No. 3, which would also be deemed ratified pursuant to the
Transitory Provisions of the proposed Constitution, had placed
Presidential Decrees No. 73 and No. 86 (and 86-A) beyond the reach
and jurisdiction of this Court.
This Court required the Solicitor General to comment on the
supplemental motion and set the said motion for hearing on January
17, 1973.
On January 17, 1973 the urgent motion of January 12, 1973 and the
supplemental motion for the issuance of the restraining order and the
inclusion of additional respondents were heard on oral arguments by
counsel for the petitioners and the Solicitor General. Towards the end
of the hearing, and while counsel for the petitioners was answering
questions from Members of this Court, the Chief Justice received a
copy of Proclamation No. 1102 of the President of the Philippines
"announcing the ratification by the Filipino people of the Constitution
proposed by the 1971 Constitutional Convention." The Chief Justice
read in open court, for the record, Proclamation No. 1102. Said
Proclamation reads as follows:
PROCLAMATION NO. 1102
ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF
THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to ratification by the
Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in
municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 86, dated December 31, 1972, composed of
all persons who are residents of the barrio, district or ward for at least
six months, fifteen years of age or over, citizens of the Philippines and
who are registered in the list of Citizen Assembly members kept by the
barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were established precisely to
broaden the base of citizen participation in the democratic process and
to afford ample opportunity for the citizenry to express their views on
important national issues;
WHEREAS, responding to the clamor of the people and pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before the Citizens Assemblies or Barangays:
Do you approve of the New Constitution? Do you still want a plebiscite
to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five
hundred sixty-one (14,976,561) members of all the Barangays
(Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight
hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to
be called to ratify the new Constitution, fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered
that there was no need for a plebiscite and that the vote of the
Barangay (Citizens Assemblies) should be considered as a vote in a
plebiscite;
WHEREAS, since the referendum results show that more than ninety-
five (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng Mga
Barangay has strongly recommended that the New Constitution should
already be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution,
do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
has been ratified by an overwhelming majority of all of the votes cast
by the members of all the Barangay (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused
the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January in the year of Our
Lord, nineteen hundred and seventy-three.
FERDINAND E. MARCOS
President of the Philippines
By the President:
ALEJANDRO MELCHOR
Executive Secretary
And so, what the petitioners had feared, as expressed in their urgent
motion for early decision and in their supplemental motion to issue
restraining order, etc., that the results of the voting in the Citizens'
Assemblies might be taken as a basis for proclaiming the ratification of
the proposed Constitution, had actually happened. And so, what the
petitioners in all the ten cases now before Us — among them civic
leaders, newspapermen, Senators and Congressmen, Members of the
1971 Constitutional Convention, and professionals — had tried to
prevent from happening, that is, the proclamation of the ratification of
the proposed constitution on the basis of the affirmative votes that
might be cast in the plebiscite that was set for January 15, 1973
pursuant to Presidential Decree No. 73, the legality of which decree
was being questioned by petitioners, had happened.
The crucial question before this Court is whether or not Presidential
Proclamation No. 1102 announcing the ratification of the proposed
Constitution of 1972 is in accordance with the Constitution and has the
effect of making the proposed Constitution of 1972 effective and in
force as of January 17, 1973 when the proclamation was issued. This
is, I believe, the vital question that this Court is called upon to resolve,
and it is for this reason that I believe that this case has not been moot
and academic. While it is true that the relief prayed for by the
petitioners, that the original respondents be enjoined from
implementing Presidential Decree No. 73, cannot now be granted,
Proclamation No. 1102 nevertheless has the effect of consummating
the ratification of the proposed Constitution — the very event which the
petitioners had precisely sought to prevent from happening when they
filed their petitions. Presidential Proclamation No. 1102 has a
tremendous effect upon the political, economic and social life of the
people of this country. I believe, therefore, that this Court should not
indulge in the niceties of procedural technicalities and evade the task
of declaring whether or not the Constitution proposed by 1971
Convention has been validly ratified as announced in said
Proclamation No. 1102. This Court is called upon to give the people of
this Republic the proper orientation regarding the effect of said
Proclamation No. 1102. That orientation will only come about when this
Highest Court of the land has rendered a ruling on whether or not said
Proclamation No. 1102 is valid.
53
I cannot agree with the view of some of my colleagues that this Court
cannot make a ruling on the question of whether or not Proclamation
No. 1102 is valid, because the validity of said proclamation is not the
matter that is squarely presented to this Court for resolution by the
petitions in these cases. I believe, however, that this Court should not
close its eyes to the fact that in the ten petitions that are before this
Court the uniform prayers of the petitioners are to enjoin the
implementation of Presidential Decree No. 73 and to nullify said decree
— precisely in order to prevent the ratification of the Constitution
proposed by the 1971 Convention in a manner that is not in
accordance with the Constitution and the law. So much so that in G.R.
No. L-35948 (Tan, et al. v. Comelec, et al.) the petitioners, among
others, prayed that judgment be rendered declaring" ... Presidential
Decree No. 73 or any similar decree, proclamation, order or instruction
unconstitutional, null and void and making the writ of preliminary
injunction permanent." It is not difficult to understand that the purpose
of the petitioners was to invalidate any and all orders, decrees and
proclamations that are corollary or related to Presidential Decree No.
73 which had for its main purpose to submit the Constitution proposed
by the 1971 Convention to a plebiscite on January 15, 1973 and
thereby determine whether the people approve or reject the proposed
Constitution. As We have adverted to, the objective of the petitioners
was to prevent the ratification of the proposed constitution in a manner
that is offensive to the Constitution and the law. All orders, decrees,
instructions, or proclamations made after the issuance of Presidential
Decree No. 73, which have for their purpose either to supplement
Presidential Decree No. 73 or to accomplish through other means or
methods what Presidential Decree No. 73 was issued for, are
encompassed within the prayer of petitioners to nullify "any similar
decree, proclamation, order, or instruction". Presidential Decrees Nos.
86 and 86-A are such "similar" decrees, because, as it turned out,
Presidential Decree No. 86 provided for the organization of the citizens'
assemblies which became the forums where the question of whether to
ratify or to reject the proposed Constitution was submitted; and, as it
turned out, Presidential Decree No. 86-A provided for the very question
which otherwise the voters would have been asked to answer "Yes" or
"No" in the plebiscite which had been provided for in Presidential
Decree No. 73. In other words, Presidential Decree No. 86 supplanted
Presidential Decree No. 73 in so far as the latter decree provided for
the forum where the question was to be asked; while Presidential
Decree No. 86-A supplanted Presidential Decree No. 73 in so far as
the latter decree provided for the question to be asked regarding the
proposed Constitution. And finally because Presidential Proclamation
No. 1102 has for its basis what was done pursuant to Presidential
Decrees Nos. 86 and 86-A, it follows that Proclamation No. 1102 is just
the "proclamation" that the petitioners sought to nullify or invalidate if
issued.
I believe that the effects of Proclamation No. 1102 have an intimate
bearing on the objectives of the petitioners when they filed the instant
petitions for prohibition, and so said proclamation has to be considered
along with all the issues raised by the petitioners in the cases at bar.
More so, because said Proclamation No. 1102 was read into the record
by the Chief Justice of this Court during the hearing of L-35948 (Tan
vs. Comelec), in open court, on January 17, 1973. I believe that this
Court must not ignore Proclamation No. 1102 in relation to the matters
and to the issues ventilated before this Court. Proclamation No. 1102
was formally brought to the attention of this Court. It is my view that
this Court should not evade its duty of defining for the benefit of the
people of this Republic the legal and constitutional nature and effects
of that proclamation. I, for one, as a humble member of this Court, feel
it my duty to say what I think, and believe, about Proclamation No.
1102. I do this not because of any desire on my part to obstruct the
workings of the agencies and instrumentalities of our Government, or
to foster among the people in our country an attitude of disrespect or
disloyalty towards the constituted authorities that presently run the
affairs of our Government. I am only doing what I believe is my sworn
duty to perform.
The ratification of the Constitution proposed by the 1971 Constitutional
Convention must be done in accordance with the provisions of Section
1, Article XV of the 1935 Constitution of the Philippines, which reads:
Section 1. The Congress in joint session assembled by a vote of three
fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted
to the people for their ratification.
It is in consonance with the above-quoted provision of the 1935
Constitution that on March 16, 1967, the Congress of the Philippines
passed Resolution No. 2 calling a convention to propose amendments
to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2
reads as follows:
Section 7. The amendments proposed by the Convention shall be valid
and considered part of the Constitution when approved by a majority of
the votes cast in an election which they are submitted to the people for
their ratification pursuant to Article XV of the Constitution.
It follows that from the very resolution of the Congress of the
Philippines which called for the 1971 Constitutional Convention there
was a clear mandate that the amendment proposed by the 1971
Convention, in order to be valid and considered part of the
Constitution, must be approved by majority of the votes cast in an
election at which they are submitted to the people for their ratification
as provided in the Constitution.
This Court, in the case of Tolentino vs. Commission on Elections, L-
35140, October 16, 1971 (41 SCRA 715), speaking through Mr. Justice
Barredo, said:
The Constitutional Convention of 1971, as any other convention of the
same nature, owes its existence and derives all its authority and power
from the existing Constitution of the Philippines. This Convention has
not been called by the people directly as in the case of a revolutionary
convention which drafts the first Constitution of an entirely new
government born of either a war of liberation from a mother country or
of a revolution against an existing government or of a bloodless seizure
of power a la coup coup d' etat. As to such kind of conventions, it is
absolutely true that the convention is completely without restraint and
omnipotent all wise, and it is as to such conventions that the remarks
of Delegate Manuel Roxas of the Constitutional Convention of 1934
quoted by Senator Pelaez refer. No amount of rationalization can belie
the fact that the current convention came into being only because it
was called by a resolution of a joint session of Congress acting as a
constituent assembly by authority of Section 1, Article XV of the
present Constitution ...
xxx xxx xxx
As to matters not related to its internal operation and the performance
of its assigned mission to propose amendments to the Constitution, the
Convention and its officers and members are all subject to all the
provisions of the existing Constitution. Now we hold that even as to its
latter task of proposing amendments to the Constitution, it is subject to
the provisions of Section 1 of Article XV.
In Proclamation No. 1102, issued on January 17, 1973, the President
of the Philippines certified that as a result of the voting before the
barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as
against 743,869 who voted for its rejection, and on the basis of the
overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines the President proclaimed that the
Constitution proposed by the 1971 Convention has been ratified and
has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that
the provisions of Section 1 of Article XV of the Constitution of 1935 was
not complied with. It is not necessary that evidence be produced before
this Court to show that no elections were held in accordance with the
provisions of the Election Code. Proclamation No. 1102 unequivocably
states that the proposed Constitution of 1972 was voted upon by the
barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section
1, Article XV, of the 1935 Constitution. The election contemplated in
said constitutional provision is an election held in accordance with the
provisions of the election law, where only the qualified and registered
voters of the country would cast their votes, where official ballots
prepared for the purpose are used, where the voters would prepare
their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country,
where the election is conducted by election inspectors duly appointed
in accordance with the election law, where the votes are canvassed
and reported in a manner provided for in the election law. It was this
kind of election that was held on May 14, 1935, when the Constitution
of 1935 was ratified; on April 30, 1937, when the amendment to the
Constitution providing for Women's Suffrage was ratified; on June 18,
1940, when the 1940 Amendments to the Constitution were ratified; on
March 11, 1947 when the Parity Amendment to the Constitution was
ratified; and on November 14, 1967 when the amendments to the
Constitution to increase the number of Members of the House of
Representatives and to allow the Members of Congress to run in the
elections for Delegates to the Constitutional Convention of 1971 were
rejected.
I cannot see any valid reason why the practice or procedure in the
past, in implementing the constitutional provision requiring the holding
of an election to ratify or reject an amendment to the Constitution, has
not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree
order the ratification of the proposed 1972 Constitution thru a voting in
the barangays and make said result the basis for proclaiming the
ratification of the proposed constitution. It is very clear, to me, that
Proclamation No. 1102 was issued in complete disregard, or, in
violation, of the provisions of Section 1 of Article V of the 1935
Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as
to whether or not the people would still like a plesbiscite to be called to
54
ratify the new Constitution, 14,298,814 members of the barangays
answered that there was no need for a plebiscite but that the vote of
the barangays should be considered a vote in a plebiscite. It would
thus appear that the barangays assumed the power to determine
whether a plebiscite as ordained in the Constitution be held or not.
Indeed, the provision of Section 1, Article XV of the Constitution was
completely disregarded.
The affirmative votes cast in the barangays are not the votes
contemplated in Section 1 of Article XV of the 1935 Constitution. The
votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
An election is the embodiment of the popular will, the expression of the
sovereign power of the people. In common parlance an election is the
act of casting and receiving the ballots, counting them, and making the
return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).
Election" implies a choice by an electoral body at the time and
substantially in the manner and with the safeguards provided by law
with respect to some question or issue. (Leffel v. Brown, Com. Pl., 159
N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
... the statutory method whereby qualified voters or electors pass on
various public matters submitted to them — the election of officers,
national, state, county, township — the passing on various other
questions submitted for their determination (29 C.J.S. 13, citing Iowa-
Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa
358).
Election" is expression of choice by voters of body politic. (Ginsburg v.
Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases, Permanent
Edition, p. 234).
The right to vote may be exercised only on compliance with such
statutory requirements as have been set up by the legislature, (People
ex rel. Rago v. Lipsky 63 N.E. 2d 642, 327 III. App. 63; Rothfels v.
Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38).
(Emphasis supplied)
In this connection I herein quote the pertinent provisions of the Election
Code of 1971:
Sec. 2. Applicability of this Act. — All elections of Public officers
except barrio officials and plebiscites shall be conducted in the manner
provided by this Code.
Sec. 99. Necessity of registration to be entitled to vote. — In order
that a qualified voter may vote in any regular or special election or in
any plebiscite, he must be registered in the permanent list of voters for
the city, municipality or municipal district in which he resides: Provided,
That no person shall register more than once without first applying for
cancellation of his previous registration. (Emphasis supplied). 3)
Please see also Sections 100-102, Election Code of 1971, R.A. No.
6388).
It is stated in Proclamation No. 1102 that the voting was done by the
members of citizens assemblies who are 15 years of age or over.
Under the provision of Section 1 of Article V of the 1935 Constitution
the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the
barangays, except in very few instances, was done by the raising of
hands by the persons indiscriminately gathered to participate in the
voting, where even children below 15 years of age were included. This
is a matter of common observation, or of common knowledge, which
the Court may take judicial notice of. To consider the votes in the
barangays as expressive of the popular will and use them as the basis
in declaring whether a Constitution is ratified or rejected is to resort to a
voting by demonstrations, which would mean the rule of the crowd,
which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the
supreme law of the land, should be ratified or not, must not be decided
by simply gathering people and asking them to raise their hands in
answer to the question of whether they vote for or against a proposed
Constitution. The election processes as provided by law should be
strictly observed in determining the will of the sovereign people in a
democracy. In our Republic the will of the people must be expressed
through the ballot in a manner that is provided by law.
It is said that in a democracy the will of the people is the supreme law.
Indeed, the people are sovereign, but the will of the people must be
expressed in a manner as the law and the demands of a well-ordered
society require. The rule of law must prevail even over the apparent will
of the majority of the people, if that will had not been expressed, or
obtained, in accordance with the law. Under the rule of law public
questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of the adoption of a constitution or
in the ratification of an amendment to the Constitution.
The following citations are, to me, very relevant in the effort to
determine whether the proposed Constitution of 1972 had been validly
ratified or not:

When it is said that "the people" have the right to alter or amend the
constitution, it must not be understood that this term necessarily
includes all the inhabitants of the state. Since the question of the
adoption or rejection of a proposed new constitution or constitutional
amendment must be answered by a vote, the determination of it rests
with those who, by the existing constitution, are accorded the right of
suffrage, But the qualified electors must be understood in this, as in
many other cases, as representing those who have not the right to
participate in the ballot. If a constitution should be abrogated, and a
new one adopted, by the whole mass of people in a state, acting
through representatives not chosen by the "people" in the political
sense of the term, but by the general body of the populace, the
movement would be extra-legal. (Black's Constitutional Law, Second
Edition, pp. 47-48).
The theory of our political system is that the ultimate sovereignty is in
the people, from whom springs all legitimate authority. The people of
the Union created a national constitution, and conferred upon it powers
of sovereignty over certain subjects, and the people of each State
created a State government, to exercise the remaining powers of
sovereignty so far as they were disposed to allow them to be exercised
at all. By the constitution which they establish, they not only tie up the
hands of their official agencies, but their own hands as well; and
neither the officers of the State, nor the whole people as an aggregate
body, are at liberty to take action in opposition to this fundamental law.
(Cooley's Constitutional Limitations, 8th Edition, Vol. I, p, 81 cited in
Graham v. Jones, 3 So. 2d. 761, 782).
The theory that a favorable vote by the electorate, however
unanimous, on a proposal to amend a constitution, may cure, render
innocous, all or any antecedent failures to observe commands of that
Constitution in respect of the formulation or submission of proposed
amendments thereto, does not prevail in Alabama, where the doctrine
of the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome constitutional
principles in Collier v. Frierson supra, as quoted in the original opinion,
ante. The people themselves are bound by the Constitution; and, being
so bound, are powerless, whatever their numbers, to change or thwart
its mandates, except through the peaceful means of a constitutional
convention, or of amendment according to the mode therein
prescribed, or through the exertion of the original right of revolution.
The Constitution may be set aside by revolution, but it can only be
amended in the way it provides," said Hobson, C.J., in McCreary v.
Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. Johnson v. Craft, et al., 87
So. 375, 385, 387 On Rehearing).
The fact that a majority voted for the amendment, unless the vote was
taken as provided by the Constitution, is not sufficient to make a
change in that instrument. Whether a proposed amendment has been
legally adopted is a judicial question, for the court must uphold and
enforce the Constitution as written until it is amended in the way which
it provides for. Wood v. Tooker 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560;
McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving
Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho
274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723.
(McCreary v. Speer, 162 S.W. 99, 104).
Provisions of a constitution regulating its own amendment, ... are not
merely directory, but are mandatory; and a strict observance of every
substantial requirement is essential to the validity of the proposed
amendment. These provisions are as binding on the people as on the
legislature, and the former are powerless by vote of acceptance to give
legal sanction to an amendment the submission of which was made in
disregard of the limitations contained in the constitution. (16 C.J.S. 35-
36 cited in Graham v. Jones, 3 So. 2d 761, 782).
It is said that chaos and confusion in the governmental affairs of the
State will result from the Court's action in declaring the proposed
constitutional amendment void. This statement is grossly and
manifestly inaccurate. If confusion and chaos should ensue, it will not
be due to the action of the Court but will be the result of the failure of
the drafters of the joint resolution to observe, follow and obey the plain
essential provisions of the Constitution. Furthermore, to say that,
unless the Court disregards its sworn duty to enforce the Constitution,
chaos and confusion will result, is an inherently weak argument in favor
of the alleged constitutionality of the proposed amendment. It is
obvious that, if the Court were to countenance the violations of the
sacramental provisions of the Constitution, those who would thereafter
desire to violate it and disregard its clear mandatory provisions would
resort to the scheme of involving and confusing the affairs, of the State
and then simply tell the Court that it was powerless to exercise one of
its primary functions by rendering the proper decree to make the
Constitution effective, (Graham v. Jones, 3 So. 2d. 761, 793-794).
In our jurisprudence I find an instance where this Court did not allow
the will of the majority to prevail, because the requirements of the law
were not, complied with. In the case of Monsale v. Nico, 83 Phil. 758,
Monsale and Nico were both candidates for the office of Municipal
Mayor of Miagao, Iloilo, in the elections of November 11, 1947.
Monsale had duly filed his certificate of candidacy before the expiration
of the period for the filing of the same. However, on October 10, 1947,
after the period for the filing of certificates of candidacy, Monsale
55
withdrew his certificate of candidacy. But on November 7, 1947
Monsale attempted to revive his certificate of candidacy by withdrawing
the withdrawal of his certificate of candidacy. The Commission on
Elections, on November 8, 1947, ruled that Monsale could no longer be
a candidate. Monsale nevertheless proceeded with his candidacy. The
boards of inspectors in Miagao, however, did not count the votes cast
for Monsale upon the ground that the votes cast for him were stray
votes, because he was considered as having no certificate of
candidacy. On the other hand, the boards of inspectors credited Nico
with 2,291 votes, and Nico was proclaimed elected. Monsale filed a
protest against the election of Nico in the Court of First Instance of
Iloilo. In the count of the ballots during the proceedings in the trial court
it appeared that Monsale had obtained 2,877 votes while Nico obtained
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of
First Instance of Iloilo decided the election protest in favor of Monsale.
Upon appeal by Nico, this Court reversed the decision of the lower
court. This Court declared that because Monsale withdrew his
certificate of candidacy his attempt to revive it by withdrawing his
withdrawal of his certificate of candidacy did not restore the
effectiveness of his certificate of candidacy, and this court declared
Nico the winner in spite of the fact that Monsale had obtained more
votes than he.
We have cited this Monsale case to show that the will of the majority of
the voters would not be given effect, as declared by this Court, if
certain legal requirements have not been complied with in order to
render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in
the citizens assemblies (barangays) is not the election that is provided
for in the 1935 Constitution for the ratification of the amendment to the
Constitution, the affirmative votes cast in those assemblies can not be
made the basis for declaring the ratification of the proposed 1972
Constitution, in spite of the fact that it was reported that 14,976,561
members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in
accordance with the provisions of Section 1 of Article XV of the 1935
Constitution of the Philippines. The rule of law must be upheld.
My last observation: One of the valid grounds against the holding of the
plebiscite on January 15, 1973, as provided in Presidential Decree No.
73, is that there is no freedom on the part of the people to exercise
their right of choice, because of the existence of martial law in our
country. The same ground holds true as regards the voting of the
barangays on January 10 to 15, 1973. More so, because by General
Order No. 20, issued on January 7, 1973, the President of the
Philippines ordered "that the provisions of Section 3 of Presidential
Decree No. 13 in so far as they allow free public discussion of the
proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the
purpose of free and open debate on the proposed constitution, be
suspended in the meantime."5 It is, therefore, my view that voting in
the barangays on January 10-15, 1973 was not free, and so this is one
added reason why the results of the voting in the barangays should not
be made the basis for the proclamation of the ratification of the
proposed Constitution.
It is my view, therefore, that Proclamation No. 1102 is repugnant to the
1935 Constitution, and so it is invalid, and should not be given effect.
The Constitution of 1972 proposed by the 1971 Constitutional
Convention should be considered as not yet ratified by the people of
this Republic, and so it should not be given force and effect.
During the deliberation of these cases by this Court, a suggestion was
made that because of the transcendental effect of Proclamation No.
1102 on the country, the petitioners in these cases, specially the
petitioners in L-35948 (Vidal Tan, et al. vs. Comelec, et al.), be given a
period of ten days to move in the premises, considering that the
issuance of Proclamation No. 1102 came as a surprise to the
petitioners and they had no opportunity to define their stand on said
Proclamation in relation to their petitions. The majority of the Court,
however, were not in favor of the idea. I expressed myself, and I so
express now, that I am in favor of granting the petitioners the
opportunity to articulate their stand regarding Proclamation No. 1102
so that the objection of some members of this Court to pass upon the
validity of said proclamation upon the ground that it is not in issue in
these cases may be met, and so that the validity of Proclamation No.
1102, and the question of whether or not the proposed 1972
Constitution has been validly ratified, may be resolved by this Court
once and for all.
At any rate, whether the petitioners are granted opportunity to define
their stand on Proclamation No. 1102, or not, I humbly submit this
opinion for whatever if may be worth, with the hope that the officials
and the citizens of this country will take note of it, and ponder over it. I
am only doing my duty according to the light that God has given me.
Separate Opinions
MAKALINTAL and CASTRO, JJ., concurring:
The principal relief prayed for in the petition in G.R. NO. L-35948 is to
declare "Sections 2, 3 (par 2), and 12 of Article XVII, of the 1972 Draft
on proposed Constitution approved by the 1971 Constitutional
Convention on November 30, 1972 as well as Presidential Decree No.
73 or any similar decree, proclamation, order or instruction
unconstitutional, null and void, ..." Basically, although couched in
different language, it is the same relief sought in the other petitions.
Article XVII contains the transitory provisions. Section 2 thereof refers
to the membership of the interim National Assembly, which includes,
among others, "those Delegates to the (1971) Constitutional
Convention who have opted to serve therein by voting affirmatively for
this Article." Section 3 (par. 2) provides that "(A)ll proclamations,
orders, decrees, instructions, and acts promulgated, issued, or done by
the incumbent President shall be part of the law of the land, and shall
remain valid, legal, binding, and effective even after lifting of martial
law or the ratification of this Constitution, unless modified, revoked, or
superseded by subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by the regular National
Assembly." And Section 12 states in part: "All treaties, executive
agreements, and contracts entered into by the Government, or any
subdivision, agency, or instrumentality thereof, including government-
owned or controlled corporations, are hereby recognized as legal,
valid, and binding ..."
Presidential Decree No. 73, issued on December 1, 1972, called for a
plebiscite to be held on January 15, 1973, wherein the proposed
Constitution would be submitted for ratification. At the same time it
appropriated the sum of P15,000,000.00 for that purpose. It was
primarily to stop the said plebiscite from being held that these petitions
were filed.
The specific grounds alleged in the petition in G.R. No. L-35948 to
support the relief prayed for which are fairly representative of the
others, read as follows:
I. The President of the Philippines has no power to call a
plebiscite for the ratification or rejection of the 1972 Draft; neither has
he the power to appropriate funds for the holding of the said plebiscite.
II. The 1972 Draft is vague and incomplete. It makes an
unconstitutional delegation of power. And it contains provisions which
were beyond the power of the convention to enact. All these have
made the 1972 Draft unfit for "proper submission" to the people.
III. The period of time between November 30, 1972 when the
1972 Draft was approved, and January 15, 1973, the date the
plebiscite will be held, is too inadequate for the people to be informed
of the contents of the 1972 Draft, and to study and discuss them so
that they could thereafter intelligently cast their vote.
Towards the end of December 1972 it was announced in the
newspapers that the President had postponed the plebiscite to a date
to be fixed later, although tentatively February 19 and March 5, 1973
were mentioned. The announcement was made officially in General
Order No. 20, dated January 7, 1973. Then on January 17, 1973 the
President issued Proclamation No 1102, certifying that the proposed
Constitution had been ratified by the Citizens Assemblies created
under Presidential Decree No. 86, issued on December 31, 1972, and
that therefore it had become effective.
In view of the foregoing developments which supervened after the
petitions herein and the answers thereto were filed and the cases
argued by the parties, the issues raised in grounds Nos. I and III
abovequoted have become moot. The plebiscite sought to be enjoined
did not take place on January 15, 1973. Indeed, its postponement to
some indefinite date in the future rendered the petition also premature.
But of course whether the petition is moot or premature makes no
material difference as far as these cases are concerned, since the
announced ratification of the proposed Constitution by the Citizens
Assemblies has made it unlikely that any plebiscite will be held.
With respect to ground No. II we are of the opinion that the question of
whether or not the proposals referred to by the petitioners, specifically
Secs. 2, 3 (par. 2) and 12, were proper for submission to the people for
ratification has likewise become moot because of the President's
Proclamation No. 1102 certifying that such ratification has already
taken place. If they may be assailed at all as invalid it should be not as
mere proposals by the Convention but already as provisions of the
Constitution, and certainly not in the present cases in the state in which
they have been submitted for decision.
There was an attempt on the part of counsel for the petitioner in G.R.
No. L-35948 during the oral argument on his urgent motion for early
decision to question the validity of Proclamation No. 1102. This
question is not within the purview of the petition and involves issues
which have neither been raised nor argued herein, having arisen in a
new and different setting and frame of reference, and hence may only
be ventilated, if at all, in an appropriate case or at least through
appropriate pleadings so that the parties may be duly heard.
56
We therefore vote to dismiss the petitions.
TEEHANKEE, J., concurring:
Without prejudice to the filing of a separate extended opinion, I concur
with the Chief Justice in his separate opinion and add the following
brief comments.
The Solicitor General's Office on behalf of respondents manifested as
of its last comment of January 16, 1973 that "(W)ith respect to the
statement in the Joint Manifestation that Presidential Decree No. 73
which calls for the holding of the plebiscite on January 15, 1973 still
stands, the plebiscite scheduled to be held on January 15, 1973 has
been postponed until further notice by virtue of General Order No. 20,
dated January 7, 1973, of President Ferdinand E. Marcos."
On the other hand, Presidential Proclamation No. 1102 issued on
January 17, 1973 recites as a premise thereof, inter alia, that "since the
referendum results show that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies)1 are in favor of the
New Constitution, the Katipunan ng Mga Barangay has strongly
recommended that the new Constitution should already be deemed
ratified by the Filipino people."2
Under the circumstances of record from which it appears that no
election (or plebiscite) for the purpose has been called and held,3 it
would be premature for now to hold that the averred ratification of the
Constitution proposed by the 1971 Constitutional Convention has met
the requirements of Article XV of the Constitution that "(S)uch
amendments shall be valid as part of this Constitution when approved
by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification" or of section 16 of
Article XVII of the proposed Constitution itself that "(T)his Constitution
shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite called for the purpose."
With the result reached by the Court, and the rendering moot of the
issues raised against the validity of Presidential Decree No. 73, I do
not deem it necessary to reach and pass upon the grave constitutional
question in its two aspects (a) whether the Constitutional Convention
may assume the power to call the plebiscite (a power historically
exercised by Congress) and to appropriate funds therefor against the
Constitutional mandate lodging such power in Congress4 and (b)
whether the Constitutional Convention may delegate such assumed
power to the President — absent any showing of willful default or
incapacity on the part of Congress to discharge it.
By the same token, it is unnecessary to resolve the equally grave
question of whether certain matters adopted and proposed by the 1971
Constitutional Convention were ultra vires, e.g. sections 2 and 15 of
Article XVII (Transitory Provisions) providing for the delegates of said
Convention to constitute the majority of an interim National Assembly
and empowering such Assembly "upon special call by the interim
Prime Minister ..., by a majority vote of all its members, (to) propose
amendments to this Constitution (which) shall take effect when ratified
in accordance with Article Sixteen hereof", which would appear to be in
violation of the accepted principles governing constitutional
conventions that they become functus officio upon completion of their
function to formulate and adopt amendments to the Constitution5 for
the people's ratification or rejection in the manner ordained in the
Constitution6 — since such convention controlled interim National
Assembly may continue proposing Constitutional amendments by mere
majority vote in contrast to the regular national assembly which would
require "a vote of three-fourths of all its members" to propose such
amendments.7
ANTONIO, J., concurring:
The historical events of the last few days have rendered the petitions
(G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-
35953, L-35961, L-35965 and L-35979), including the supplemental
petition moot and should be dismissed.
Without prejudice to a more extended opinion later, I concur in the view
that implicit in the power of the Constitutional Convention to propose
amendments to the Constitution is its authority to order an election at
which such amendments are to be submitted to the people for
ratification and, within the narrow range implied as necessary for the
business of submitting the amendments to the people, the capacity to
appropriate money for the expenses necessary to make such submittal
effective. Independently therefore of the question, whether or not the
President may legislate during martial law, it was certainly within the
authority of the President to issue such measures, acting as agent for
and in behalf of the Constitutional Convention to call for a plebiscite,
prescribe its terms and appropriate money for said purpose.
The opinion that the President, as agent of the Convention, could
device other forms of election to determine the will of the majority of
the people on the ratification of the proposed Constitution, establishes
a principle that is, not entirely devoid of precedent. The present
Constitution of the United States was ratified in a manner not in accord
with the first Constitution of the United States, which was the Articles of
Confederation. The violation was deliberate, but Madison, however
defended the method provided for the adoption of the new Constitution
by saying that it was a case "of absolute necessity" which forced the
framers of the new Constitution to resort "to the great principle of self-
preservation; to the transcendental law of nature and of nature's God,
which declares that the safety and happiness of society are the objects
at which all political institutions aim, and to which all such institutions
must be sacrificed." While I agree that this precedent is never one that
would justify governmental organs in ignoring constitutional restraints,
the fact is the people themselves had already acted by adopting the
procedure devised in the expression of their sovereign will.
To the contention of one of the petitioners, that the draft of the
Constitution contains provisions beyond the power of the Constitutional
Convention to submit for ratification, suffice it to state that there is
nothing that can legally prevent a convention from actually revising the
entire Constitution for, in the final analysis, it is the approval of the
people that gives validity to any proposal of amendment or revision.
I concur in the opinion that martial rule per se, in the light of
contemporary events, does not warrant the presumption that the
results of the plebiscite of ratification is not a genuine and free
expression of the popular will.
It poses a question of fact which, in the absence of any judicially
discoverable and manageable standards, or where the access to
relevant information is insufficient to assure the correct determination
of the issue, I do not feel that this Court is competent to act.
If the ratification of the new Constitution and the new government
erected thereon, is not what it is represented to be, the expression of
the will of the majority or the people are dissatisfied, they have ample
remedy. The instrument itself provides amendment and change. For
the only and proper way in which it should be remedied, is the people
acting as a body politic. These questions relate to matters not to be
settled on strict legal principles. For the new Constitution has been
promulgated and great interests have already arisen under it. The
political organ in the government has recognized it and has
commenced the implementation of its provisions. Under such
circumstances the Court should therefore refrain from precipitating
impossible situations which might otherwise rip the delicate social and
political fabric.
The theory of presumptive collective duress under martial rule is
perhaps valid in any other clime. In the case at bar, it flies against the
stark reality of the factual setting. To insist upon it is to ignore the
historical facts that culminated in the national referendum. The people
wanted a revolutionary change. They were aware of the manifold
problems of the nation — its poverty, corruption, injustice, subversion
and insurgency and criminality. The sweeping and dramatic reforms
during the last few months buoyed up the hopes of the people that thru
the instrumentality of a new charter these gains of the commonweal
may be conserved and further enlarged. In the ambience of such a
historical setting, it would have been presumptuous to assume that the
qualified voters in the reportedly more than fourteen million Filipinos
who voted for the new charter, did so not with freedom but from fear.
Such a posture, I cannot accept, for that would demean the courage,
integrity and wisdom of the people themselves.
In all other respects, the opinion of Justice Barredo, merits my
concurrence.
ESGUERRA, J., concurring:
I vote to deny all petitions seeking to prohibit the holding of the
plebiscite on January 15, 1973, on the Constitution of November 30,
1972, as provided for in Presidential Decree No. 73 of December 1,
1972. Specifically, I vote to deny the supplemental petition in G.R. No.
L-35948 seeking to restrain the Citizens Assemblies' referendum in
connection with that ratification of said Constitution.
My reasons are simple and need no elaborate and lengthy discussion.
1. In the first place, these cases have been moot and academic
as the holding of the plebiscite scheduled for January 15, 1973, has
been indefinitely postponed under General Order No. 20 dated January
7, 1973. Consequently, there is nothing more to prohibit or restrain.
2. In the second place, the supplemental petition in G.R. No. L-
35948 to restrain the respondents, including three additional parties,
namely Secretary Jose Rono as head of the Department of Local
Governments; Secretary Conrado Estrella, as head of the Department
of Agrarian Reforms and Secretary Guillermo de Vega, as Chairman of
the National Ratification Coordinating Committee, who were not duly
served with summons and have never been heard, has been rendered
futile as the Citizens Assemblies have expressed their decisions to
ratify the 1972 Constitution and said officers have reported to the
President and on the basis thereof he has announced the ratification of
said Constitution by Proclamation No. 1102, dated January 17, 1973,
effective 12: 00 o'clock noon of said date. Hence there is also nothing
more to restrain or prohibit as the acts sought to be stopped have been
fully accomplished.
57
I do not attempt to assail the validity of Proclamation No. 1102 as the
Court is not in possession of any evidence to overthrow the veracity of
the facts therein related, there being no case formally filed with the
Court attacking the validity of said Proclamation, and, moreover, the
parties responsible for the holding of the referendum or plebiscite by
the Citizens Assemblies, which ratified the proposed Constitution, have
not being impleaded and afforded a chance to be heard. In brief, there
is absolutely no basis for making a pronouncement on the validity of
the said proclamation, and to do so would be simply tiding rough shod
over the well-beaten road of due process of law which basically
requires notice and full and fair hearing.
Without any competent evidence I do not pretend to know more about
the circumstances attending the holding of said referendum or
plebiscite and I cannot say that it was not plainfully held. I assume that
what the proclamation says on its face is true and until overcome by
satisfactory evidence, of which there is absolutely nothing before Us, I
cannot subscribe to the claim that such plebiscite was not held
accordingly.
At this stage, whether or not there was a valid ratification of the 1972
Constitution cannot be resolved without raising the legality of the
Government under which we are now operating as of January 17,
1973. Hence We would be confronted with a political question which is
beyond the jurisdiction of this Court to settle. I accept as a fait accompli
that the Constitution adopted on November 30, 1972, has been duly
ratified, and I consider that any assault against it as well as the manner
of its ratification has been innocuous. Having been invested with full
force and effect by the approval of an overwhelming majority of the
people, to mount an attack against it now would be nothing less than
fighting the windmills in Don Quijote fashion. I do not wish to emulate
that unique literary character and I prefer to take things in the light of
the stark realities of the present. I have always adhered to the idea that
the practical approach to any question yields the happiest solution,
instead of soaring in flights of fantasies and losing one's self in idle
metaphysical adventures.
FERNANDO, J., concurring and dissenting:
While I am in agreement with the resolution of the Court dismissing the
petitions for their being moot and academic, I feel that a brief separate
opinion expressing my views on certain legal issues would not be
amiss, considering the transcendental character of the suits before us.
Indisputably, they involve the crucial role assumed by the Executive in
the proposed submission of the new Constitution, perhaps unavoidably
thrust upon him in view of the declaration of martial law. It is reassuring
that there is a reiteration of the principle that the amending process,
both as to proposal and ratification, raises a judicial question.
Notwithstanding the vigor and plausibility with which the Solicitor-
General stressed what for him is the political nature of the controversy,
with considerable support from authorities on constitutional law partial
to the judicial restraint approach, it would be, for me, a plain abdication
of the trust reposed in this Court, if it would rule itself as devoid of
authority to inquire into the validity of the steps taken towards the
ratification of the proposed amendments. The most that I can concede
is that where the effect of the nullification sought is to prevent the
sovereign people from expressing their will, the utmost caution and
circumspection should be exercised.
Now, as to the merits of the issues that would have called for
resolution, were it not for the matter becoming moot and academic.
While not squarely raised, the question of whether or not a
constitutional convention could go on meeting with martial law in force
has a prejudicial aspect. Following the ruling in Duncan v.
Kahanamoku1 that Legislature and courts continue to function even
under such period, being not merely cherished governmental
institutions but indispensable to the operation of government, there is
no doubt in my mind that the same principle should likewise apply to a
constituent body. To the contention pressed by Senator Tanada, as
counsel, in Tan v. Commission on Elections, that the proposed
Constitution contains provisions beyond the power of the Constitutional
Convention to submit for ratification, it seems to me a sufficient answer
that once convened, the area open for deliberation to a Constitutional
Convention and thereafter to be embodied in proposed amendments if
approved by the majority, is practically limitless.2 In that sense, it can
be truly stated that the Convention can propose anything but conclude
nothing. As was intimated by Justice Makasiar, speaking for the Court
in Del Rosario v. Comelec,3 "whether the Constitutional Convention
will only propose amendments to the Constitution or entirely overhaul
the present Constitution and propose an entirely new Constitution
based on an ideology foreign to the democratic system, is of no
moment; because the same will be submitted to the people for
ratification. Once ratified by the sovereign people, there can be no
debate about the validity of the new Constitution."4 Once its work of
drafting has been completed, it could itself direct the submission to the
people for ratification as contemplated in Article XV of the Constitution.
Here it did not do so. With Congress not being in session, could the
President, by the decree under question, call for such a plebiscite?
Under such circumstances, a negative answer certainly could result in
the work of the Convention being rendered nugatory. The view has
been repeatedly expressed in many American state court decisions
that to avoid such undesirable consequence, the task of submission
becomes ministerial, with the political branches devoid of any
discretion as to the holding of an election for that purpose.5 Nor is the
appropriation by him of the amount necessary to be considered as
offensive to the Constitution. If it were done by him in his capacity as
President, such an objection would indeed have been formidable, not
to say insurmountable.6 If the appropriation were made in his capacity
as agent of the Convention to assure that there be the submission to
the people, then such an argument loses force. The Convention itself
could have done so.7 It is understandable why it should be thus. If it
were otherwise, then a legislative body, the appropriating arm of the
government, could conceivably make use of such authority to compel
the Convention to submit to its wishes, on pain of being rendered
financially distraught. The President then, if performing his role as its
agent, could be held as not devoid of such competence. That brings
me to the argument as to the absence of proper submission,
developed with the customary learning and persuasiveness by
Senators Tanada and Salonga. With all due recognition of their
forensic skill, I prefer to rely on what, for me, is the correct principle
announced in the opinion of the Chief Justice in Gonzales v.
Commission on Elections:8 "A considerable portion of the people may
not know how over 160 of the proposed maximum of representative
districts are actually apportioned by R.B.H. No. 1 among the provinces
in the Philippines. It is not improbable, however, that they are not
interested in the details of the apportionment, or that a careful reading
thereof may tend in their simple minds, to impair a clear vision thereof.
Upon the other hand, those who are more sophisticated, may enlighten
themselves sufficiently by reading the copies of the proposed
amendments posted in public places, the copies kept in the polling
places and the text of contested resolutions, as printed in full on the
back of the ballots they will use. It is, likewise, conceivable that as
many people, if not more, may fail to realize or envisage the effect of
R.B.H. No. 3 upon the work of the Constitutional Convention or upon
the future of our Republic. But, then, nobody can foretell such effect
with certainty. From our viewpoint, the provisions of Article XV of the
Constitution are satisfied so long as the electorate knows that R.B.H.
No. 3 permits Congressmen to retain their seats as legislators, even if
they should run for and assume the functions of delegates to the
Convention. We are impressed by the factors considered by our
distinguished and esteemed brethren, who opine otherwise, but, we
feel that such factors affect the wisdom of Republic Act No. 4913 and
that of R.B.H. Nos. 1 and 3, not the authority of Congress to approve
the same. The system of checks and balances underlying the judicial
power to strike down acts of the Executive or of Congress transcending
the confines set forth in the fundamental laws is not in derogation of
the principle of separation of powers, pursuant to which each
department is supreme within its own sphere. The determination of the
conditions under which the proposed amendments shall be submitted
to the people is concededly a matter which falls within the legislative
sphere. We do not believe it has been satisfactorily shown that
Congress has exceeded the limits thereof in enacting Republic Act No.
4913."9
Nonetheless, were it not for the fact that the matter had become moot
and academic, I am for granting the petitions in view of what, for me, is
the repugnancy between an election contemplated under Article XV of
the Constitution in herein the voters can freely register their will,
whether it be for approval or disapproval, and the existence of martial
law, with its connotation that dissent may be fraught with unpleasant
consequences. While it is to be admitted that the Administration has
done its best to alleviate such a state of mind, I cannot in all honesty
say, although I am prepared to concede that I may labor under a sense
of undue pessimism, that the momentum of fear necessarily incident to
such a regime has been reduced to a minimum. I fail to see then the
existence of that indispensable condition of freedom that would
validate the ratification process as contemplated by the Constitution.
As to the validity of Proclamation No. 1102, adherence to what for me
are fundamental concepts of judicial review precludes it this state the
expression of any opinion. It would, at the very least, be premature. 10
BARREDO, J., concurring and dissenting:
With full consciousness of the transcendental consequences of the
action the Court is taking in these cases, not only upon me personally
and as a member of the Supreme Court but upon the Court itself as the
guardian of the Constitution, which all its members have solemnly
sworn in the name of God to uphold and defend, and after long and
serious consideration of all aspects and angles of the issues submitted
for resolution by the parties, I have come to the sincere conviction that
the petitions herein should be dismissed, including the supplemental
petition filed by petitioners in G.R. No. L-35948, with the consequent
denial of the motion for the issuance of a writ of preliminary injunction
or a temporary restraining order enjoining in effect any act which would
imply giving force and effect to the 1972 Constitution which President
Ferdinand E. Marcos proclaimed as ratified in Proclamation No. 1102
as of twelve o'clock noon on January 17, 1973. Without prejudice to a
more extended opinion later, my reasons for this conclusion are as
follows:
As of today, two matters present themselves for Our immediate
resolution, namely, (1) the petitions in all of these cases praying for a
writ of prohibition against the implementation of Presidential Decree
No. 73 calling for and setting the date and the manner of holding the
plebiscite for the ratification of the Constitution proposed by the 1971
Constitutional Convention, the date set being January 15, 1973, and
58
(2) the supplemental petition, with prayer for the issuance of a writ of
preliminary injunction or a restraining order, in G.R. No. L-35948 to
enjoin whatever ratification of the said Constitution would be proposed
by the Citizens Assemblies, established under Presidential Decrees
Nos. 86, 86-A, and 86-B, and, correspondingly, any act which would
give force and effect to such ratification, should it be proclaimed,
which, by the way, everybody knows was already done at about 11:00
o'clock A.M. on January 17, 1973.
As to No. (1), I vote to dismiss the original petitions in all these cases
for the simple reason that the alleged grounds thereof are either
untenable or have been premature, if not somehow moot and
academic, at least, meanwhile that the plebiscite had not been reset.1
(a) There is no question that the matter of whether or not
Presidential Decree No. 73 is valid is a justiciable one and not political,
hence within the jurisdiction of this Court to resolve. Tolentino v.
Comelec, G.R. No. L-34150, October 16, 1971, 41 SCRA 702 is
sufficient authority for this pose.
(b) On the other hand, I am of the considered view that it is not
within the competence of this Court to pass on the propriety or wisdom
of any part or provision of the Constitution as proposed by the
Convention. The Convention was called for the purpose of proposing
amendments to the Constitution, and like any Constitutional
Convention it was completely and absolutely free to make any
proposal, whether or not consonant with the 1935 Constitution. The
theory of ultra-vires proposals advanced by petitioners is to me without
sufficient legal basis.
(c) Much less can I accept the view that the Convention's task
was limited to proposing specific amendments to become either as
new parts of the existing Constitution or as replacements of
corresponding portions thereof, for even if there were any theoretical
basis for petitioners' posture in this regard, I feel safe in saying that
when the people elected the delegates to the Convention and when the
delegates themselves were campaigning such limitation of the scope of
their function and objective was not in their minds. Withal, considering
the number and nature of the proposals already being publicly
discussed before and after said election, to follow petitioners'
suggestion would have produced confusion and probably
insurmountable difficulties even in the framing and phrasing alone of
the amendments so that they may easily and clearly jibe with the other
parts of the existing Constitution.
(d) Regarding the alleged lack of legislative power of the
President to issue Presidential Decree No. 73, I maintain that
independently of the issue of whether or not the President may
legislate during martial law relative to matters not connected with the
requirements of suppressing the armed insurgency and the
maintenance of peace and order, it was within the prerogative of the
President to issue said decree, considering that in doing so he merely
acted as agent for and on behalf of the Constitutional Convention,
which, in my opinion written for the Court in the Tolentino case, I
individually held, had the power to call for a plebiscite, prescribe its
terms and appropriate money for the purpose. Disregarding immaterial
niceties of form and language, and looking to its obvious intent and
purpose, I hold that Resolution No. 5843 of the Convention, approved
on November 22, 1972, delegated to the President in plenary terms the
calling of the plebiscite, and since the ordinary rules requiring the
laying down of standards in the delegation of legislative functions
binding Congress do not, to my mind, apply to the Convention, if only
because the latter occupies a higher plane of legislative authority than
Congress in matters related to the accomplishment of its objectives, it
follows that Presidential Decree No. 73 was validly issued.
(e) All the other objections to said decree were rendered
premature, if not somehow moot and academic for the time being,
because under General Order No. 20, dated January 7, 1973, the
President postponed the plebiscite until further notice. Such being the
case, nobody could positively say that the President would not allow
Congress to pass a plebiscite law or that he would not lift martial law
by then or that the contracts, executive orders, treaties, proclamations,
decrees, etc. that are supposed to be ratified together with the
Constitution itself would not be published, for the proper information of
all concerned before the next date to be fixed for the plebiscite. In other
words, no one could say that appropriate steps would not be taken to
meet the objections alleged in the petitions before the plebiscite would
be actually held. It is, indeed, judicially improper to pass upon any
issue the factual setting whereof may still be materially altered.
(f) On whether or not the holding of the plebiscite during martial
law would materially affect proper submission insofar as the freedom
supposed to attend it is concerned, I agree with the respondents that
this is a question of fact which cannot be pre-determined and that it
would, therefore, be the burden of the petitioners to show by evidence
that such freedom had been actually and substantially impaired. When
one recalls that measures were taken by the President precisely to
provide the widest opportunity for free debate and voting, consistent
with the nature and purpose of the plebiscite but at the same time
safeguarding the objectives of the martial law proclaimed by him, which
measures he had to withdraw only when in his judgment he deemed it
to be so required by public safety, it does not seem altogether logical to
assume that the existence of martial law per se deprives the people of
the essence of free suffrage. Martial law implemented Philippine style,
to use an apt expression, does not carry with it necessarily all the
implications thereof as these are known in other lands and in the
recorded precedents.
Coming now to No. (2), it is evident that under the theory above-
referred to that as agent of the Convention, the President could devise
other forms of plebiscite to determine the will of the majority of the
people vis-a-vis the ratification of the proposed Constitution, I believe
that the establishment of the Citizens' Assemblies as a mode of such
plebiscite cannot be said to be clearly beyond the contemplation of
Article XV of the Constitution of 1935. It must be observed, however,
that under Article X of the same Constitution, it is the Commission on
Elections that is supposed to "have exclusive charge of the
enforcement and administration of all laws relative to the conduct of
elections ..." and this function cannot be removed from the Commission
whether by Congress or by the President.2 This constitutional point
seems to have been overlooked in the proceedings in the Assemblies,
since it does not appear from any of the official documents relative
thereto that the same have been undertaken or held under the charge
of the Commission.
Besides, I feel I cannot bear evidence to history and the future
generations of our people that in fact, the answering of the questions
and the canvassing and reporting of the referendum in the Assemblies
throughout the country were done exactly in the manner and form that
they should have been done, in the light of traditional concepts related
to plebiscites as we know them. Otherwise stated, I am not satisfied
that Article XV of the 1935 Constitution has been fully complied with.
By this, I do not mean that it was not right to use the Assemblies; what
I am saying is that, on the basis of facts I am taking judicial notice of,
the procedure of answering, canvassing and reporting adopted, which,
by the way, was far from being uniform in all the Assemblies, was not
up to standard in many places, judged on the basis of the requirements
of the prevailing election laws.
On the other hand, in spite of these considerations, I do not find myself
in a position to deny the factual assertion in Proclamation 1102 that
more than 14 million Filipinos have manifested approval of the
proposed Constitution and would consider the same as already ratified
by them. I understand that this number was determined on the basis of
sworn reports of the respective heads of the Assemblies. Such being
the case, I am faced with proof which I have no way of duly
controverting that our people have spoken. I consider it undemocratic,
impractical and unrealistic to close my eyes to that vital fact. And since
in a democracy the will of the people is the supreme law, I hold that it
would be improper for the Court to enjoin any act done or to be done
pursuant to the proclamation in dispute. I believe that whatever legal
flaws there might have been in the procedure pursued leading to the
issuance of said proclamation may be deemed already cured by the
apparent will of the people however imperfectly, under legal and
technical standards, the same has been expressed. To grant the
prayer of petitioners now would be tantamount to defying the very
sovereign people by whom and for whom the Constitution has been
ordained, absent any demonstrated facts showing that they prefer the
status quo, which the Convention was precisely called to change
meaningfully, to the wide-range reforms everybody can see are being
effected in practically all levels of the government and all sectors of
society. Withal, to issue any such injunctive writ at this stage of
denouncement of national events is to court consequences too horrible
to imagine.
To the possible stricture that persons less than twenty-one years of
age were allowed to participate and vote in said Assemblies, my
reaction is that I am not sure that Article V of the 1935 Constitution,
viewed in the light of the perceptible universal drift towards the
enfranchisement of the youth, may not be construed as permitting
legislative enlargement of the democratic base of government
authority, since the said Article does not say that those thereby
qualified are the only ones who can vote - the language being simply
that "suffrage may be exercised by male citizens of the Philippines not
otherwise disqualified by law, who are twenty-one years of age or over
and are able to read and write, and who shall have resided in the
Philippines for one year and in the municipality wherein they propose
to vote for at least six months preceding the election. ...," which, to me,
strictly speaking, only guarantees the right of suffrage to those
enumerated but does not deny to the legislature the power to include
others who in its wisdom it believes should also enjoy such right. In any
event, it is elementary under our election law and jurisprudence that
should it appear that disqualified persons have succeeded in voting in
an election, such election is not thereby necessarily rendered wholly
illegal, but the votes of such persons are only correspondingly
deducted after being duly identified. Accordingly, on the premise that
the inclusion of those below 21 is illegal, their votes may be deducted
from the 14,000,000 or so aforementioned, and I am certain no one will
deny that the remainder would still be substantially sufficient to
constitute a recognizable mandate of the people, for under normal
circumstances which must be presumed, and making the most liberal
estimate, the votes of the under aged voters among them could not
have been more than one-third of said number. Indeed, at the most, if
this point had been considered before the issuance of Proclamation
1102, an injunction might have issued to restrain the under aged
59
persons from participating in the referendum, but now that the result
thereof is a fait accompli, I cannot see how such a possible flaw can be
of any material consequence.
As may be noted, I have taken it upon myself to rule on the legal
issues surrounding Proclamation 1102. Indeed, I feel very strongly that,
as a member of the Supreme Court, it is my duty to our people to
enlighten them as to said issues. The eyes of the whole country have
been pinned on Us since the Convention approved the draft of the
Constitution in question on November 30, 1972, and the President
called, on December 1, 1972, thru Presidential Decree No. 73, for a
plebiscite scheduled to be held on January 15, 1973, for its ratification.
Concerned citizens purporting to speak for the people have precisely
come to the Court challenging the legality of the procedure thus
pursued as not being in consonance with the amending process
specified in the 1935 Constitution and praying that the Court enjoin the
continued adoption of said procedure. Everybody knows that they
came to Us with the conviction that the Court would not hesitate to play
its role as the final authority designated by the Constitution itself to
interpret and construe its provisions.
Accordingly, We gave due course to their petitions, and for two days,
December 18 and 19, We heard brilliant and learned counsel of both
sides argue eloquently, even with obvious patriotic fervor but in view of
the circumstances related in the separate opinion of the Chief Justice,
We were unable to decide the cases even as late as January 13, 1973.
Petitioners then came with motions urgently seeking an early decision,
and soon after, or, on January 15, 1973, petitioners in G.R. No. L-
35948 filed a supplemental petition relative to the latest developments
involving the creation of Citizens Assemblies and the persistent reports
indicating almost to a certainty that a proclamation would be issued
doing away with the usual plebiscite procedure and already
proclaiming the proposed Constitution as ratified and in force, on the
basis alone of the favorable result of a referendum in said Assemblies.
Their main prayer was for Us to issue a writ of prohibition against the
submission and approval of the reports of the results of said
referendum. We immediately required the respondents to answer the
supplemental petition not later than January 16 and set the case for
hearing on January 17 at 9:30 o'clock in the morning.
In closing his arguments before the Court that fateful morning, Senator
Lorenzo Tanada, the tenacious counsel for petitioners, pleaded
earnestly, even after the Chief Justice had read to him in open session
the text of Proclamation 1102 which had just been delivered by the
Secretary of Justice, that the Court rule squarely on the issues
petitioners have raised. He told Us that it is secondary whether Our
judgment should be favorable or unfavorable to petitioners, what is
most important is for the people to know whether or not the provisions
of the Constitution have been observed.
Indeed, no graver responsibility rests on the shoulders of the Court.
And as I see it, We cannot shirk that responsibility by alleging technical
excuses which I sincerely believe are at best of controversial tenability.
I cannot share the view that the validity and constitutionality of
Proclamation 1102 have not been submitted to Us for resolution in
these proceedings. I maintain that for all intents and purposes, the
supplemental motion of Senator Tanada of January 15 placed those
transcendental issues before Us. Not only in his pleading but more so
in his oral argument, Senator Tanada, with all the vigor of his mind and
the sincere patriotism of his heart, contended that with the creation of
the Citizens Assemblies and the referendum being conducted therein,
and particularly in view of the two questions to be answered, namely,
"Do you approve of the proposed constitution?" and "Do you want the
plebiscite to be held?", there was no doubt that Article XV of the
Constitution was being bypassed and that this Court was being "short-
circuited." In terms that could not have been plainer, he pointed to the
impending probability of the issuance of a proclamation of the nature of
Proclamation 1102, and he prayed eloquently, that We should act
without loss of time to stop the purported reports of the referendum so
as to remove the basis for such feared eventuality. So much so, that
after the Chief Justice read the proclamation to him, he dramatically
exclaimed, "I have been confirmed." Others would have said,
"Consummatum est!"
Under these circumstances, I cannot see how it can be held that We
can refrain from ruling on the legal and constitutional significance of
Proclamation 1102. At the very least, the present state of the case of
Vidal Tan, et al. vs. Comelec, et al., G.R. No. L-35948, imposes upon
Us the ineludible obligation to rule whether or not We should have
enjoined the submission of the reports of the Assemblies, as
demanded by petitioners, it being evident that as Senator Tanada
contended said reports were to be utilized as basis for the issuance of
a proclamation declaring the proposed Constitution as ratified and
already in force. In similar past cases too numerous to cite, this Court
and all courts in the country, I dare say, have always considered the
consummation of a threatened act, after the petition to enjoin it has
been submitted to the court's jurisdiction, as fit subject for its
disposition, within the same proceedings, to the extent that the courts
even issue mandatory injunctions, in appropriate cases, for the
respondents to undo what has already been done without having to
hold any further hearing. It is claimed that the parties must be fully
heard — but have we not heard enough from them? Has not Senator
Tanada presented all his arguments in support of his supplemental
petition? And if he has not, is it the fault of the Court? Is it fair to all
concerned that such possible omission be considered as a ground for
Our withholding Our judgment on what under the law and the rules is
already properly before Us for resolution? Truth to tell, I cannot
imagine a fuller ventilation of the cause of any other petitioner who has
come to this Court than petitioners in G.R. No. L-35948. Rarely has the
Court held hearings for days and more unusually has it given any
counsel almost unlimited time to speak, but these We have done in
these cases. Can any party ask for more? If at all, only the
respondents have not adequately presented their side insofar as the
supplemental petition is concerned, but, again, it cannot be said that
they have not had the opportunity to do so. The Acting Solicitor
General has unqualifiedly filed his answer on behalf of all the
respondents, and to me, his attempt to impress the Court that the new
respondents have not been summoned and that the subject petition is
premised on probabilities and conjectures is of no moment, considering
the grave importance of the issues and the urgent necessity of
disposing them expeditiously and without unnecessary loss of fateful
time. Of course, I respect the reasons of my colleagues who cannot
see it my way, but as far as I am concerned, this is as appropriate a
case and an occasion as any can be to resolve all the fundamental
issues raised by petitioners, and to leave them unresolved now would
be practically inviting some non-conformists to challenge the
Constitution and to keep not only the wheels of the transition at a
standstill, but worse, also the animus of the people in suspended
animation fraught with anxiety, with all the dire consequences such a
situation entails.
Some legalists would call the government under the proclaimed
Constitution a revolutionary government, but the President denies that
it is, because, according to him, it is to operate under a Constitution
ratified by the people. At this crucial moment in the history of the
nation, We need not bother about variant nomenclatures; these can be
subjective and are, in any event, unsubstantial. What is of supreme
and utmost importance is that the people be told what exactly the
situation is, sans the veneer of what might turn out after all to be an
inaccurate appellation. The people must know the real score, and, as a
member of the Supreme Court, I do not hesitate to tell them that, as I
have already explained above, in my honest opinion, the purported
ratification of the Constitution attested in Proclamation 1102 and based
on the referendum among the Citizens Assemblies falls short of being
in strict conformity with the requirements of Article XV of the 1935
Constitution. I must hasten to add, however, that such unfortunate
drawback notwithstanding, and considering all other relevant
circumstances, principally, the naked proof before Us indicating that
the people approve of it, I earnestly and sincerely believe that the new
Constitution is legally recognizable and should be recognized as
legitimately in force.
I reiterate I have no legal means of denying it to be a fact, as stated in
the proclamation, that 14,000,000 Filipinos have manifested in the
referendum in the Citizens Assemblies their approval of this
Constitution. And even if We considered that said referendum was held
under the aegis of full implementation of the martial law proclaimed by
the President under Proclamation 1081, as mandated by General
Order No. 20, We would not be able to ignore that the government
under this Constitution is well organized and is in stable, effective and
complete control of the whole Philippine territory, and what is more
pertinently important, that this Constitution purged as it is now of its
Achilles heel, the Interim National Assembly, may fairly be said to be
acceptable generally to the people, embodying as it does meaningful
reforms designed to check, if not to eradicate the then prevalent
causes of widespread popular restiveness and activism which has
already assumed practically the proportions of an armed insurgency or
rebellion somehow endangering the security and safety of the
constituted government, if not the integrity of the nation. And in
connection with the implementation of martial law thus ordered, as I
have already noted earlier in this opinion, its being done Philippine
style may be of some relevance, since such enforcement is not
characterized by the rigor that the usual concept of martial law
connotes, hence, any suggestion of constructive duress relative to the
proceedings in the Assemblies and the Barangays may not fully hold
water. Upon these premises, it is my considered opinion that if in any
sense the present government and Constitution may be viewed as
revolutionary, because they came into being, strictly speaking, extra-
constitutionally or outside the pale of the 1935 Constitution, they are
nonetheless entitled to be accorded legitimate standing, for all intents
and purposes and for all concerned, under the universally accepted
principle that a revolution, whether violent or bloodless, is illegal only
when it fails to gain the support of the people. Indeed, under these
circumstances, I cannot resist the temptation of asking, is it juridically
possible for this Court to declare unconstitutional and without force and
effect the very Constitution under which it presently exists? I am
inclined to hold that the answer to this question can only be in the
negative. Consequently, petitioners are not entitled to any judicial relief
and, I have no alternative but to vote for the dismissal of the
supplemental petition of January 15, 1973.
In conclusion, I hold that the 1935 Constitution has pro tanto passed
into history and has been legitimately supplanted by the Constitution
now in force by virtue of Proclamation 1102, issued pursuant to the
60
certified results of the referendum in the Citizens Assemblies all over
the country favoring its adoption and enforcement.
Long live our country, the Philippines! God bless our people, the
Filipino people!
ZALDIVAR, J., dissenting:
I cannot agree with my worthy colleagues who hold the view that the
petitions in all these have become moot and academic simply because
the relief prayed for by petitioners cannot be granted after
Proclamation No. 1102 was issued by the President of the Philippines.
A case does not become moot where there remain substantial rights or
issues that are controverted and which are not settled.1 This Court has
decided cases even if no positive relief, as prayed for by a party in the
case, could be granted, or even if a party has withdrawn his appeal, if
the case presented to the court for resolution is a clear violation of the
Constitution or of fundamental personal rights of liberty and property.2
In the present cases it is in the public interest that this Court renders a
ruling on the transcendental issues brought about by the petition —
issues which must be resolved by this Court as the guardian of the
Constitution of this Republic.
For a comprehensive appraisal of the facts and circumstances relevant
to the resolution of the issues involved in these cases, We shall narrate
pertinent events, as shown in the record.
On December 1, 1972 the President of the Philippines, in his capacity
as Commander-in-Chief of all the Armed Forces of the Philippines and
acting pursuant to Proclamation No. 1081, dated September 21, 1972,
issued Presidential Decree No. 73, submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention, and
appropriating funds for the purpose. The Decree states that the same
was issued pursuant to Resolution No. 5843 of the 1971 Constitutional
Convention proposing "to President Ferdinand E. Marcos that a decree
be issued calling a plebiscite for the ratification of the proposed new
Constitution on such appropriate date as he shall determine and
providing for the necessary funds therefor." "3 The decree set the
plebiscite for January 15, 1973 and appropriated the sum of
P15,000,000.00 to carry out the purpose of the decree. The Decree
provided for the publication of the proposed Constitution, the
dissemination of information regarding the proposed Constitution, the
application of the provisions of the Election Code of 1971 to the
plebiscite insofar as they are not inconsistent with the provisions of the
decree, specially stating that the provisions of said Code regarding the
right and obligations of political parties and candidates shall not apply
to the plebiscite. The Decree further provided for a calendar for the
plebiscite, for the registration of voters, for the constitution of the board
of inspectors, for watchers, for precincts and polling places, for the
official ballots to be used, for the preparation and transmission of
plebiscite returns, for the canvass of the returns by the city,
municipality, and the municipal district board of canvassers, for the
canvass by the Commission on Elections and the proclamation of the
results by said Commission, for supplies and services needed for the
holding of the plebiscite, and on the authority given to the Commission
on Elections to promulgate rules and regulations necessary to carry out
the provisions of the Decree.
On December 1, 1972, the President of the Philippines also issued
General Order No. 17, ordering and enjoining the Armed Forces of the
Philippines and all other departments and agencies of the Government
to allow and encourage public and free discussions and debates on the
proposed Constitution before the plebiscite set for January 15, 1973.
During the first half of the month of December 1972, the petitioners, in
the ten cases now before this Court, filed petitions for prohibition with
preliminary injunction, seeking to prevent the holding of the plebiscite
on January 15, 1973. The petitioners question the validity of
Presidential Decree No. 73, principally upon the ground that it is not in
the power of the President of the Philippines to call a plebiscite for the
ratification or rejection of the proposed Constitution and to appropriate
public funds for the purpose. The petitioners also maintain that the
period of only about 45 days from the date of the approval of the
proposed Constitution by the Constitutional Convention on November
30, 1972 to January 15, 1973, was not a sufficient time for the
electorate of this country to be properly informed regarding the
provisions of the proposed Constitution, and the electorate could not
therefore vote intelligently on whether to ratify or to reject the proposed
Constitution, and so there could be no proper submission of the
proposed Constitution to the electorate. The petitioners further
maintain that the country being under martial law there could not be a
free submission of the proposed Constitution to the electorate. In some
of the petitions, the petitioners also maintain that the proposed
Constitution contains provisions which are beyond the power of the
Constitutional Convention to adopt or to propose. All the petitioners
prayed this Court to issue a writ of preliminary injunction or restraining
order to prevent the respondents in each of the petitions from
implementing Presidential Decree No. 73. This Court, however, did not
issue the preliminary injunction, nor the restraining order, prayed for.
This Court required the respondents in each petition to answer the
petition, and set the cases for hearing on the petition for preliminary
injunction and on the merits of the case for December 18, 1972.
Hearings were actually held for two days — on December 18 and 19,
1972.
On December 31, 1972, while these cases were pending before this
Court, the President of the Philippines issued Presidential Decree No.
86 creating the Citizens Assemblies throughout the country. Among
others, Decree No. 86 provides that there is created a citizen assembly
in each barrio in municipalities, and in each district in chartered cities,
provided that in the case of Manila and other chartered cities where
there are no barrios there shall be a citizen assembly in every ward;
that the citizen assemblies shall consist of all persons who are
residents of the barrio, district, or ward for at least six months, 15 years
of age or over, citizens of the Philippines, and who are registered in the
list of citizens assembly members kept by the barrio, district or ward
secretary. As stated in the decree, the purpose of establishing the
citizens assemblies is to broaden the base of the citizens' participation
in the democratic process and to afford ample opportunities for the
citizenry to express their views on important national issues.
On January 5, 1973 the President of the Philippines issued Presidential
Decree No. 86-A which, among others, provided for the submission to
the citizens' assemblies created under Presidential Decree No. 86
questions to be answered, and among those questions are these two:
(1) "Do you approve of the new Constitution?"; (2) "Do you still want a
plebiscite to be called to ratify the new Constitution ?"
On January 7, 1973 the President issued General Order No. 20,
ordering the postponement of the plebiscite that had been scheduled
for January 15, 1973. Said general order reads as follows:
GENERAL ORDER NO. 20
WHEREAS, pursuant to Presidential Decree No. 73 dated December
1, 1972, a plebiscite has been called on January 15, 1973 at which the
proposed Constitution of the Philippines shall be submitted to the
people for ratification or rejection;
WHEREAS, Presidential Decree No. 86, dated December 31, 1972,
created Citizens Assemblies so as to afford ample opportunities for the
citizenry to express their views on important national issues;
WHEREAS, one of the questions presented to the Citizens Assemblies
is: "Do you like the plebiscite on the proposed Constitution to be held
later?
WHEREAS, it is necessary to hold in abeyance the plebiscite until the
people's preference has been ascertained;
NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-
Chief of all the Armed Forces of the Philippines, and pursuant to
Proclamation No. 1081, dated September 21, 1972, do hereby order
that the plebiscite scheduled to be held on January 15, 1973, be
postponed until further notice.
I further order that the provision of Section 3 of Presidential Decree No.
73 insofar as they allow free public discussion of the proposed
Constitution, as well as my order of December 17, 1972, temporarily
suspending the effects of Proclamation No. 1081 for the purposes of
free and open debate on the proposed Constitution, be suspended in
the meantime.
Done in the City of the Manila, this 7th day of January, in the year of
Our Lord, nineteen hundred and seventy-three.
(Sgd.) FERDINAND E. MARCOS
President
Republic of the Philippines
By the President:
(Sgd.) ALEJANDRO MELCHOR
Executive Secretary
As of the day when the above-quoted General Order No. 20 was
issued these cases were all pending decision before this Court.
At this juncture I am going to particularize my discussion on case G.R.
No. L-35948 (Vidal Tan, et al., petitioners vs. Commission on
Elections, et al., respondents). What I say in connection with the Vidal
Tan case may also be considered in relation with the other cases
before Us.
On January 12, 1973 counsel for the petitioners in the Tan case filed
an "Urgent Motion For Early Decision", alleging, among others, that it
was announced that voting by the Citizens' Assemblies would be held
on January 10 to 15, 1973 whereby the Citizens' Assemblies would be
asked a number of questions, among them the following:
(1) Do you approve of Citizens' Assemblies as the base of
popular government to decide issues of national interests?
(2) Do you approve of the new Constitution?
61
(3) Do you want a plebiscite to be called to ratify the new
Constitution?
(4) Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
(5) If the election would not be held, when do you want the next
elections to be called?
(6) Do you want martial law to continue?
Counsel for the petitioners also alleged that petitioners had reasons to
fear that the question: "Do you approve of the new Constitution?", in
relation to the question following it: "Do you still want a plebiscite to be
called to ratify the new Constitution?", would be an attempt to bypass
and short-circuit this Court before which the question regarding the
validity of the plebiscite scheduled for January 15, 1973 on the
proposed Constitution was pending resolution. Counsel for petitioners
also alleged that they had reasons to fear "that if an affirmative answer
to the two questions just referred to would be reported then this
Honorable Court and the entire nation would be confronted with a fait
accompli which has been attained in a highly unconstitutional and
undemocratic manner;" and "the fait accompli would consist in the
supposed expression of the people approving the proposed
Constitution." Counsel further states "that if such event would happen
then the case before this Honorable Court could, to all intents and
purposes, become moot because, petitioners fear, and they therefore
allege, that on the basis of such supposed expression of the will of the
people through the Citizens' Assemblies, it would be announced that
the proposed Constitution with all its defects, both congenital and
otherwise, has been ratified" and "that in such a situation, the
Philippines would be facing a real crisis and there is a likelihood of
confusion if not chaos, because then, the people and their officials
would not know which Constitution is in force."4
On January 13, 1973 this Court ordered the Solicitor General to
answer the urgent motion of the petitioners, dated January 12, 1973.
On January 15, 1973 counsel for petitioners filed "A Supplemental
Motion for Issuance of Restraining Order and for Inclusion of Additional
Respondents." The respondents sought to be added were the
Department of Local Governments and its head, Secretary Jose Rono;
the Department of Agrarian Reforms and its head, Secretary Conrado
Estrella; and the National Ratification Coordinating Committee and its
chairman, Guillermo de Vega. In their supplemental motion for the
issuance of restraining order enjoining the original respondents, as well
as the additional respondents, and their deputies, subordinates and/or
substitutes from collecting, certifying, announcing and reporting to the
President or other officials concerned, the Citizens' Assembly
referendum results that would be obtained in the voting held during the
period comprised between January 10 and January 15, 1973,
particularly on the two questions: (1) "Do you approve of the new
Constitution?", and (2) "Do you still want a plebiscite to be called for
the ratification of the new Constitution?" Counsel for petitioners further
alleged that for lack of material time the appropriate amended petition
to include the new respondents could not be completed because the
submission of the proposed Constitution to the Citizens' Assemblies
was not made known to the public until January 11, 1973, but
nevertheless the new respondents could properly be included because
in their petition petitioners prayed "for the annulment not only of
Presidential Decree No. 73 but also of any similar decree,
proclamation, order or instruction" so that Presidential Decree Nos. 86
(and 86-A) in so far at least as they attempt to submit the proposed
Constitution to a plebiscite by the Citizens' Assemblies are properly in
issue in the case, and those who enforce, implement and carry out said
Presidential decrees and the instructions incidental thereto clearly fall
within the scope of the petition. Moreover, counsel for petitioners
alleges that in the original petition they prayed for the issuance of a writ
of preliminary injunction restraining not only the original respondents,
but also their agents from the performance of acts, implementing, or
tending to implement, Presidential Decree No. 73 or any other similar
decree, order, instructions, or proclamation in relation to the holding of
the plebiscite in question on January 15, 1973, and that they had also
prayed for such other relief which may be just and equitable. Counsel
for petitioners stressed the plea that unless the petition is decided
immediately and the respondents were restrained or enjoined from
collecting, certifying, reporting, or announcing to the President the
result of the alleged voting of the so-called Citizens' Assemblies
irreparable damage would be caused to the Republic of the
Philippines, to the Filipino people and to the cause of freedom and
democracy, because after the result of the supposed voting on the two
precise questions that they mentioned shall have been announced, a
conflict would arise between those who maintain that the 1935
Constitution is still in force, on the one hand, and those who maintain
that the old Constitution is superseded by the proposed Constitution on
the other hand, thereby creating confusion if not chaos; and that even
the jurisdiction of this Court would be subject to serious attacks
because the advocates of the theory that the proposed Constitution
had been ratified by reason of the announcement of the results of the
proceedings of the Citizens Assemblies would argue that General
Order No. 3, which would also be deemed ratified pursuant to the
Transitory Provisions of the proposed Constitution, had placed
Presidential Decrees No. 73 and No. 86 (and 86-A) beyond the reach
and jurisdiction of this Court.
This Court required the Solicitor General to comment on the
supplemental motion and set the said motion for hearing on January
17, 1973.
On January 17, 1973 the urgent motion of January 12, 1973 and the
supplemental motion for the issuance of the restraining order and the
inclusion of additional respondents were heard on oral arguments by
counsel for the petitioners and the Solicitor General. Towards the end
of the hearing, and while counsel for the petitioners was answering
questions from Members of this Court, the Chief Justice received a
copy of Proclamation No. 1102 of the President of the Philippines
"announcing the ratification by the Filipino people of the Constitution
proposed by the 1971 Constitutional Convention." The Chief Justice
read in open court, for the record, Proclamation No. 1102. Said
Proclamation reads as follows:
PROCLAMATION NO. 1102
ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF
THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to ratification by the
Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in
municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 86, dated December 31, 1972, composed of
all persons who are residents of the barrio, district or ward for at least
six months, fifteen years of age or over, citizens of the Philippines and
who are registered in the list of Citizen Assembly members kept by the
barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were established precisely to
broaden the base of citizen participation in the democratic process and
to afford ample opportunity for the citizenry to express their views on
important national issues;
WHEREAS, responding to the clamor of the people and pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before the Citizens Assemblies or Barangays:
Do you approve of the New Constitution? Do you still want a plebiscite
to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five
hundred sixty-one (14,976,561) members of all the Barangays
(Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight
hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to
be called to ratify the new Constitution, fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered
that there was no need for a plebiscite and that the vote of the
Barangay (Citizens Assemblies) should be considered as a vote in a
plebiscite;
WHEREAS, since the referendum results show that more than ninety-
five (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng Mga
Barangay has strongly recommended that the New Constitution should
already be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution,
do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
has been ratified by an overwhelming majority of all of the votes cast
by the members of all the Barangay (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused
the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January in the year of Our
Lord, nineteen hundred and seventy-three.
FERDINAND E. MARCOS
President of the Philippines
By the President:
ALEJANDRO MELCHOR
Executive Secretary
And so, what the petitioners had feared, as expressed in their urgent
motion for early decision and in their supplemental motion to issue
restraining order, etc., that the results of the voting in the Citizens'
Assemblies might be taken as a basis for proclaiming the ratification of
the proposed Constitution, had actually happened. And so, what the
62
petitioners in all the ten cases now before Us — among them civic
leaders, newspapermen, Senators and Congressmen, Members of the
1971 Constitutional Convention, and professionals — had tried to
prevent from happening, that is, the proclamation of the ratification of
the proposed constitution on the basis of the affirmative votes that
might be cast in the plebiscite that was set for January 15, 1973
pursuant to Presidential Decree No. 73, the legality of which decree
was being questioned by petitioners, had happened.
The crucial question before this Court is whether or not Presidential
Proclamation No. 1102 announcing the ratification of the proposed
Constitution of 1972 is in accordance with the Constitution and has the
effect of making the proposed Constitution of 1972 effective and in
force as of January 17, 1973 when the proclamation was issued. This
is, I believe, the vital question that this Court is called upon to resolve,
and it is for this reason that I believe that this case has not been moot
and academic. While it is true that the relief prayed for by the
petitioners, that the original respondents be enjoined from
implementing Presidential Decree No. 73, cannot now be granted,
Proclamation No. 1102 nevertheless has the effect of consummating
the ratification of the proposed Constitution — the very event which the
petitioners had precisely sought to prevent from happening when they
filed their petitions. Presidential Proclamation No. 1102 has a
tremendous effect upon the political, economic and social life of the
people of this country. I believe, therefore, that this Court should not
indulge in the niceties of procedural technicalities and evade the task
of declaring whether or not the Constitution proposed by 1971
Convention has been validly ratified as announced in said
Proclamation No. 1102. This Court is called upon to give the people of
this Republic the proper orientation regarding the effect of said
Proclamation No. 1102. That orientation will only come about when this
Highest Court of the land has rendered a ruling on whether or not said
Proclamation No. 1102 is valid.
I cannot agree with the view of some of my colleagues that this Court
cannot make a ruling on the question of whether or not Proclamation
No. 1102 is valid, because the validity of said proclamation is not the
matter that is squarely presented to this Court for resolution by the
petitions in these cases. I believe, however, that this Court should not
close its eyes to the fact that in the ten petitions that are before this
Court the uniform prayers of the petitioners are to enjoin the
implementation of Presidential Decree No. 73 and to nullify said decree
— precisely in order to prevent the ratification of the Constitution
proposed by the 1971 Convention in a manner that is not in
accordance with the Constitution and the law. So much so that in G.R.
No. L-35948 (Tan, et al. v. Comelec, et al.) the petitioners, among
others, prayed that judgment be rendered declaring" ... Presidential
Decree No. 73 or any similar decree, proclamation, order or instruction
unconstitutional, null and void and making the writ of preliminary
injunction permanent." It is not difficult to understand that the purpose
of the petitioners was to invalidate any and all orders, decrees and
proclamations that are corollary or related to Presidential Decree No.
73 which had for its main purpose to submit the Constitution proposed
by the 1971 Convention to a plebiscite on January 15, 1973 and
thereby determine whether the people approve or reject the proposed
Constitution. As We have adverted to, the objective of the petitioners
was to prevent the ratification of the proposed constitution in a manner
that is offensive to the Constitution and the law. All orders, decrees,
instructions, or proclamations made after the issuance of Presidential
Decree No. 73, which have for their purpose either to supplement
Presidential Decree No. 73 or to accomplish through other means or
methods what Presidential Decree No. 73 was issued for, are
encompassed within the prayer of petitioners to nullify "any similar
decree, proclamation, order, or instruction". Presidential Decrees Nos.
86 and 86-A are such "similar" decrees, because, as it turned out,
Presidential Decree No. 86 provided for the organization of the citizens'
assemblies which became the forums where the question of whether to
ratify or to reject the proposed Constitution was submitted; and, as it
turned out, Presidential Decree No. 86-A provided for the very question
which otherwise the voters would have been asked to answer "Yes" or
"No" in the plebiscite which had been provided for in Presidential
Decree No. 73. In other words, Presidential Decree No. 86 supplanted
Presidential Decree No. 73 in so far as the latter decree provided for
the forum where the question was to be asked; while Presidential
Decree No. 86-A supplanted Presidential Decree No. 73 in so far as
the latter decree provided for the question to be asked regarding the
proposed Constitution. And finally because Presidential Proclamation
No. 1102 has for its basis what was done pursuant to Presidential
Decrees Nos. 86 and 86-A, it follows that Proclamation No. 1102 is just
the "proclamation" that the petitioners sought to nullify or invalidate if
issued.
I believe that the effects of Proclamation No. 1102 have an intimate
bearing on the objectives of the petitioners when they filed the instant
petitions for prohibition, and so said proclamation has to be considered
along with all the issues raised by the petitioners in the cases at bar.
More so, because said Proclamation No. 1102 was read into the record
by the Chief Justice of this Court during the hearing of L-35948 (Tan
vs. Comelec), in open court, on January 17, 1973. I believe that this
Court must not ignore Proclamation No. 1102 in relation to the matters
and to the issues ventilated before this Court. Proclamation No. 1102
was formally brought to the attention of this Court. It is my view that
this Court should not evade its duty of defining for the benefit of the
people of this Republic the legal and constitutional nature and effects
of that proclamation. I, for one, as a humble member of this Court, feel
it my duty to say what I think, and believe, about Proclamation No.
1102. I do this not because of any desire on my part to obstruct the
workings of the agencies and instrumentalities of our Government, or
to foster among the people in our country an attitude of disrespect or
disloyalty towards the constituted authorities that presently run the
affairs of our Government. I am only doing what I believe is my sworn
duty to perform.
The ratification of the Constitution proposed by the 1971 Constitutional
Convention must be done in accordance with the provisions of Section
1, Article XV of the 1935 Constitution of the Philippines, which reads:
Section 1. The Congress in joint session assembled by a vote of three
fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted
to the people for their ratification.
It is in consonance with the above-quoted provision of the 1935
Constitution that on March 16, 1967, the Congress of the Philippines
passed Resolution No. 2 calling a convention to propose amendments
to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2
reads as follows:
Section 7. The amendments proposed by the Convention shall be valid
and considered part of the Constitution when approved by a majority of
the votes cast in an election which they are submitted to the people for
their ratification pursuant to Article XV of the Constitution.
It follows that from the very resolution of the Congress of the
Philippines which called for the 1971 Constitutional Convention there
was a clear mandate that the amendment proposed by the 1971
Convention, in order to be valid and considered part of the
Constitution, must be approved by majority of the votes cast in an
election at which they are submitted to the people for their ratification
as provided in the Constitution.
This Court, in the case of Tolentino vs. Commission on Elections, L-
35140, October 16, 1971 (41 SCRA 715), speaking through Mr. Justice
Barredo, said:
The Constitutional Convention of 1971, as any other convention of the
same nature, owes its existence and derives all its authority and power
from the existing Constitution of the Philippines. This Convention has
not been called by the people directly as in the case of a revolutionary
convention which drafts the first Constitution of an entirely new
government born of either a war of liberation from a mother country or
of a revolution against an existing government or of a bloodless seizure
of power a la coup coup d' etat. As to such kind of conventions, it is
absolutely true that the convention is completely without restraint and
omnipotent all wise, and it is as to such conventions that the remarks
of Delegate Manuel Roxas of the Constitutional Convention of 1934
quoted by Senator Pelaez refer. No amount of rationalization can belie
the fact that the current convention came into being only because it
was called by a resolution of a joint session of Congress acting as a
constituent assembly by authority of Section 1, Article XV of the
present Constitution ...
xxx xxx xxx
As to matters not related to its internal operation and the performance
of its assigned mission to propose amendments to the Constitution, the
Convention and its officers and members are all subject to all the
provisions of the existing Constitution. Now we hold that even as to its
latter task of proposing amendments to the Constitution, it is subject to
the provisions of Section 1 of Article XV.
In Proclamation No. 1102, issued on January 17, 1973, the President
of the Philippines certified that as a result of the voting before the
barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as
against 743,869 who voted for its rejection, and on the basis of the
overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines the President proclaimed that the
Constitution proposed by the 1971 Convention has been ratified and
has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that
the provisions of Section 1 of Article XV of the Constitution of 1935 was
not complied with. It is not necessary that evidence be produced before
this Court to show that no elections were held in accordance with the
provisions of the Election Code. Proclamation No. 1102 unequivocably
states that the proposed Constitution of 1972 was voted upon by the
barangays. It is very clear, therefore, that the voting held in these
barangays is not the election contemplated in the provisions of Section
1, Article XV, of the 1935 Constitution. The election contemplated in
said constitutional provision is an election held in accordance with the
provisions of the election law, where only the qualified and registered
voters of the country would cast their votes, where official ballots
63
prepared for the purpose are used, where the voters would prepare
their ballots in secret inside the voting booths in the polling places
established in the different election precincts throughout the country,
where the election is conducted by election inspectors duly appointed
in accordance with the election law, where the votes are canvassed
and reported in a manner provided for in the election law. It was this
kind of election that was held on May 14, 1935, when the Constitution
of 1935 was ratified; on April 30, 1937, when the amendment to the
Constitution providing for Women's Suffrage was ratified; on June 18,
1940, when the 1940 Amendments to the Constitution were ratified; on
March 11, 1947 when the Parity Amendment to the Constitution was
ratified; and on November 14, 1967 when the amendments to the
Constitution to increase the number of Members of the House of
Representatives and to allow the Members of Congress to run in the
elections for Delegates to the Constitutional Convention of 1971 were
rejected.
I cannot see any valid reason why the practice or procedure in the
past, in implementing the constitutional provision requiring the holding
of an election to ratify or reject an amendment to the Constitution, has
not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree
order the ratification of the proposed 1972 Constitution thru a voting in
the barangays and make said result the basis for proclaiming the
ratification of the proposed constitution. It is very clear, to me, that
Proclamation No. 1102 was issued in complete disregard, or, in
violation, of the provisions of Section 1 of Article V of the 1935
Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as
to whether or not the people would still like a plesbiscite to be called to
ratify the new Constitution, 14,298,814 members of the barangays
answered that there was no need for a plebiscite but that the vote of
the barangays should be considered a vote in a plebiscite. It would
thus appear that the barangays assumed the power to determine
whether a plebiscite as ordained in the Constitution be held or not.
Indeed, the provision of Section 1, Article XV of the Constitution was
completely disregarded.
The affirmative votes cast in the barangays are not the votes
contemplated in Section 1 of Article XV of the 1935 Constitution. The
votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
An election is the embodiment of the popular will, the expression of the
sovereign power of the people. In common parlance an election is the
act of casting and receiving the ballots, counting them, and making the
return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).
Election" implies a choice by an electoral body at the time and
substantially in the manner and with the safeguards provided by law
with respect to some question or issue. (Leffel v. Brown, Com. Pl., 159
N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
... the statutory method whereby qualified voters or electors pass on
various public matters submitted to them — the election of officers,
national, state, county, township — the passing on various other
questions submitted for their determination (29 C.J.S. 13, citing Iowa-
Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa
358).
Election" is expression of choice by voters of body politic. (Ginsburg v.
Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases, Permanent
Edition, p. 234).
The right to vote may be exercised only on compliance with such
statutory requirements as have been set up by the legislature, (People
ex rel. Rago v. Lipsky 63 N.E. 2d 642, 327 III. App. 63; Rothfels v.
Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38).
(Emphasis supplied)
In this connection I herein quote the pertinent provisions of the Election
Code of 1971:
Sec. 2. Applicability of this Act. — All elections of Public officers
except barrio officials and plebiscites shall be conducted in the manner
provided by this Code.
Sec. 99. Necessity of registration to be entitled to vote. — In order
that a qualified voter may vote in any regular or special election or in
any plebiscite, he must be registered in the permanent list of voters for
the city, municipality or municipal district in which he resides: Provided,
That no person shall register more than once without first applying for
cancellation of his previous registration. (Emphasis supplied). 3)
Please see also Sections 100-102, Election Code of 1971, R.A. No.
6388).
It is stated in Proclamation No. 1102 that the voting was done by the
members of citizens assemblies who are 15 years of age or over.
Under the provision of Section 1 of Article V of the 1935 Constitution
the age requirement to be a qualified voter is 21 years or over.

But what is more noteworthy is the fact that the voting in the
barangays, except in very few instances, was done by the raising of
hands by the persons indiscriminately gathered to participate in the
voting, where even children below 15 years of age were included. This
is a matter of common observation, or of common knowledge, which
the Court may take judicial notice of. To consider the votes in the
barangays as expressive of the popular will and use them as the basis
in declaring whether a Constitution is ratified or rejected is to resort to a
voting by demonstrations, which would mean the rule of the crowd,
which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the
supreme law of the land, should be ratified or not, must not be decided
by simply gathering people and asking them to raise their hands in
answer to the question of whether they vote for or against a proposed
Constitution. The election processes as provided by law should be
strictly observed in determining the will of the sovereign people in a
democracy. In our Republic the will of the people must be expressed
through the ballot in a manner that is provided by law.
It is said that in a democracy the will of the people is the supreme law.
Indeed, the people are sovereign, but the will of the people must be
expressed in a manner as the law and the demands of a well-ordered
society require. The rule of law must prevail even over the apparent will
of the majority of the people, if that will had not been expressed, or
obtained, in accordance with the law. Under the rule of law public
questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of the adoption of a constitution or
in the ratification of an amendment to the Constitution.
The following citations are, to me, very relevant in the effort to
determine whether the proposed Constitution of 1972 had been validly
ratified or not:
When it is said that "the people" have the right to alter or amend the
constitution, it must not be understood that this term necessarily
includes all the inhabitants of the state. Since the question of the
adoption or rejection of a proposed new constitution or constitutional
amendment must be answered by a vote, the determination of it rests
with those who, by the existing constitution, are accorded the right of
suffrage, But the qualified electors must be understood in this, as in
many other cases, as representing those who have not the right to
participate in the ballot. If a constitution should be abrogated, and a
new one adopted, by the whole mass of people in a state, acting
through representatives not chosen by the "people" in the political
sense of the term, but by the general body of the populace, the
movement would be extra-legal. (Black's Constitutional Law, Second
Edition, pp. 47-48).
The theory of our political system is that the ultimate sovereignty is in
the people, from whom springs all legitimate authority. The people of
the Union created a national constitution, and conferred upon it powers
of sovereignty over certain subjects, and the people of each State
created a State government, to exercise the remaining powers of
sovereignty so far as they were disposed to allow them to be exercised
at all. By the constitution which they establish, they not only tie up the
hands of their official agencies, but their own hands as well; and
neither the officers of the State, nor the whole people as an aggregate
body, are at liberty to take action in opposition to this fundamental law.
(Cooley's Constitutional Limitations, 8th Edition, Vol. I, p, 81 cited in
Graham v. Jones, 3 So. 2d. 761, 782).
The theory that a favorable vote by the electorate, however
unanimous, on a proposal to amend a constitution, may cure, render
innocous, all or any antecedent failures to observe commands of that
Constitution in respect of the formulation or submission of proposed
amendments thereto, does not prevail in Alabama, where the doctrine
of the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome constitutional
principles in Collier v. Frierson supra, as quoted in the original opinion,
ante. The people themselves are bound by the Constitution; and, being
so bound, are powerless, whatever their numbers, to change or thwart
its mandates, except through the peaceful means of a constitutional
convention, or of amendment according to the mode therein
prescribed, or through the exertion of the original right of revolution.
The Constitution may be set aside by revolution, but it can only be
amended in the way it provides," said Hobson, C.J., in McCreary v.
Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. Johnson v. Craft, et al., 87
So. 375, 385, 387 On Rehearing).
The fact that a majority voted for the amendment, unless the vote was
taken as provided by the Constitution, is not sufficient to make a
change in that instrument. Whether a proposed amendment has been
legally adopted is a judicial question, for the court must uphold and
enforce the Constitution as written until it is amended in the way which
it provides for. Wood v. Tooker 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560;
McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving
Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16 Idaho
274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723.
(McCreary v. Speer, 162 S.W. 99, 104).
Provisions of a constitution regulating its own amendment, ... are not
merely directory, but are mandatory; and a strict observance of every
64
substantial requirement is essential to the validity of the proposed
amendment. These provisions are as binding on the people as on the
legislature, and the former are powerless by vote of acceptance to give
legal sanction to an amendment the submission of which was made in
disregard of the limitations contained in the constitution. (16 C.J.S. 35-
36 cited in Graham v. Jones, 3 So. 2d 761, 782).
It is said that chaos and confusion in the governmental affairs of the
State will result from the Court's action in declaring the proposed
constitutional amendment void. This statement is grossly and
manifestly inaccurate. If confusion and chaos should ensue, it will not
be due to the action of the Court but will be the result of the failure of
the drafters of the joint resolution to observe, follow and obey the plain
essential provisions of the Constitution. Furthermore, to say that,
unless the Court disregards its sworn duty to enforce the Constitution,
chaos and confusion will result, is an inherently weak argument in favor
of the alleged constitutionality of the proposed amendment. It is
obvious that, if the Court were to countenance the violations of the
sacramental provisions of the Constitution, those who would thereafter
desire to violate it and disregard its clear mandatory provisions would
resort to the scheme of involving and confusing the affairs, of the State
and then simply tell the Court that it was powerless to exercise one of
its primary functions by rendering the proper decree to make the
Constitution effective, (Graham v. Jones, 3 So. 2d. 761, 793-794).
In our jurisprudence I find an instance where this Court did not allow
the will of the majority to prevail, because the requirements of the law
were not, complied with. In the case of Monsale v. Nico, 83 Phil. 758,
Monsale and Nico were both candidates for the office of Municipal
Mayor of Miagao, Iloilo, in the elections of November 11, 1947.
Monsale had duly filed his certificate of candidacy before the expiration
of the period for the filing of the same. However, on October 10, 1947,
after the period for the filing of certificates of candidacy, Monsale
withdrew his certificate of candidacy. But on November 7, 1947
Monsale attempted to revive his certificate of candidacy by withdrawing
the withdrawal of his certificate of candidacy. The Commission on
Elections, on November 8, 1947, ruled that Monsale could no longer be
a candidate. Monsale nevertheless proceeded with his candidacy. The
boards of inspectors in Miagao, however, did not count the votes cast
for Monsale upon the ground that the votes cast for him were stray
votes, because he was considered as having no certificate of
candidacy. On the other hand, the boards of inspectors credited Nico
with 2,291 votes, and Nico was proclaimed elected. Monsale filed a
protest against the election of Nico in the Court of First Instance of
Iloilo. In the count of the ballots during the proceedings in the trial court
it appeared that Monsale had obtained 2,877 votes while Nico obtained
2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of
First Instance of Iloilo decided the election protest in favor of Monsale.
Upon appeal by Nico, this Court reversed the decision of the lower
court. This Court declared that because Monsale withdrew his
certificate of candidacy his attempt to revive it by withdrawing his
withdrawal of his certificate of candidacy did not restore the
effectiveness of his certificate of candidacy, and this court declared
Nico the winner in spite of the fact that Monsale had obtained more
votes than he.
We have cited this Monsale case to show that the will of the majority of
the voters would not be given effect, as declared by this Court, if
certain legal requirements have not been complied with in order to
render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in
the citizens assemblies (barangays) is not the election that is provided
for in the 1935 Constitution for the ratification of the amendment to the
Constitution, the affirmative votes cast in those assemblies can not be
made the basis for declaring the ratification of the proposed 1972
Constitution, in spite of the fact that it was reported that 14,976,561
members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in
accordance with the provisions of Section 1 of Article XV of the 1935
Constitution of the Philippines. The rule of law must be upheld.
My last observation: One of the valid grounds against the holding of the
plebiscite on January 15, 1973, as provided in Presidential Decree No.
73, is that there is no freedom on the part of the people to exercise
their right of choice, because of the existence of martial law in our
country. The same ground holds true as regards the voting of the
barangays on January 10 to 15, 1973. More so, because by General
Order No. 20, issued on January 7, 1973, the President of the
Philippines ordered "that the provisions of Section 3 of Presidential
Decree No. 13 in so far as they allow free public discussion of the
proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the
purpose of free and open debate on the proposed constitution, be
suspended in the meantime."5 It is, therefore, my view that voting in
the barangays on January 10-15, 1973 was not free, and so this is one
added reason why the results of the voting in the barangays should not
be made the basis for the proclamation of the ratification of the
proposed Constitution.
It is my view, therefore, that Proclamation No. 1102 is repugnant to the
1935 Constitution, and so it is invalid, and should not be given effect.
The Constitution of 1972 proposed by the 1971 Constitutional
Convention should be considered as not yet ratified by the people of
this Republic, and so it should not be given force and effect.
During the deliberation of these cases by this Court, a suggestion was
made that because of the transcendental effect of Proclamation No.
1102 on the country, the petitioners in these cases, specially the
petitioners in L-35948 (Vidal Tan, et al. vs. Comelec, et al.), be given a
period of ten days to move in the premises, considering that the
issuance of Proclamation No. 1102 came as a surprise to the
petitioners and they had no opportunity to define their stand on said
Proclamation in relation to their petitions. The majority of the Court,
however, were not in favor of the idea. I expressed myself, and I so
express now, that I am in favor of granting the petitioners the
opportunity to articulate their stand regarding Proclamation No. 1102
so that the objection of some members of this Court to pass upon the
validity of said proclamation upon the ground that it is not in issue in
these cases may be met, and so that the validity of Proclamation No.
1102, and the question of whether or not the proposed 1972
Constitution has been validly ratified, may be resolved by this Court
once and for all.
At any rate, whether the petitioners are granted opportunity to define
their stand on Proclamation No. 1102, or not, I humbly submit this
opinion for whatever if may be worth, with the hope that the officials
and the citizens of this country will take note of it, and ponder over it. I
am only doing my duty according to the light that God has given me.
G.R. No. L-36142 March 31, 1973
JOSUE JAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL
DEFENSE, THE SECRETARY OF JUSTICE AND THE SECRETARY
OF FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL
CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA AND
LORENZO M. TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE ,
THE SECRETARY OF JUSTICE, THE SECRETARY OF LAND
REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE
AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE
CHAIRMAN OF PRESIDENTIAL COMMISSION ON
REORGANIZATION, THE TREASURER OF THE PHILIPPINES, THE
COMMISSION ON ELECTIONS AND THE COMMISSIONER OF
CIVIL SERVICE, respondents.
G.R. No. L-36165 March 31, 1973.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA,
SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA ESTRADA-
KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary;
JUAN PONCE ENRILE, in his capacity as Secretary of National
Defense; General ROMEO ESPINO, in his capacity as Chief of Staff of
the Armed Forces of the Philippines; TANCIO E. CASTAÑEDA, in his
capacity as Secretary General Services; Senator GIL J. PUYAT, in his
capacity as President of the Senate; and Senator JOSE ROY, his
capacity, as President Pro Tempore of the of the Senate, respondents.
G.R. No. L-36236 March 31, 1973
EDDIE B. MONTECLARO, [personally and in his capacity as President
of the National Press Club of the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC
INFORMATION, THE AUDITOR GENERAL, THE BUDGET
COMMISSIONER & THE NATIONAL TREASURER, respondents.
G.R. No. L-36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO
ASODISEN, JR., and RAUL M. GONZALEZ, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE
SECRETARY OF NATIONAL DEFENSE, THE HONORABLE
BUDGET COMMISSIONER, THE HONORABLE AUDITOR
GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al.
Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas. Gonzales and
Arroyo for petitioners Gerardo Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
65
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et
al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V.
Mendoza and Solicitor Reynato S. Puno for other respondents.
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-
35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-
35965 and
L-35979, decided on January 22, 1973, to which We will hereafter refer
collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered,
from which We quote:
On March 16, 1967, Congress of the Philippines passed Resolution
No. 2, which was amended by Resolution No. 4 of said body, adopted
on June 17, 1969, calling a Convention to propose amendments to the
Constitution of the Philippines. Said Resolution No. 2, as amended,
was implemented by Republic Act No. 6132, approved on August 24,
1970, pursuant to the provisions of which the election of delegates to
said Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1,
1971. While the Convention was in session on September 21, 1972,
the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the Convention
approved its Proposed Constitution of the Republic of the Philippines.
The next day, November 30, 1972, the President of the Philippines
issued Presidential Decree No. 73, "submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention, and
appropriating funds therefor," as well as setting the plebiscite for said
ratification or rejection of the Proposed Constitution on January 15,
1973.
Soon after, or on December 7, 1972, Charito Planas filed, with this
Court, Case G.R. No. L-35925, against the Commission on Elections,
the Treasurer of the Philippines and the Auditor General, to enjoin said
"respondents or their agents from implementing Presidential Decree
No. 73, in any manner, until further orders of the Court," upon the
grounds, inter alia, that said Presidential Decree "has no force and
effect as law because the calling ... of such plebiscite, the setting of
guidelines for the conduct of the same, the prescription of the ballots to
be used and the question to be answered by the voters, and the
appropriation of public funds for the purpose, are, by the Constitution,
lodged exclusively in Congress ...," and "there is no proper submission
to the people of said Proposed Constitution set for January 15, 1973,
there being no freedom of speech, press and assembly, and there
being no sufficient time to inform the people of the contents thereof."
Substantially identical actions were filed, on December 8, 1972, by
Pablo C. Sanidad against the Commission on Elections (Case G.R.
No. L- 35929) on December 11, 1972, by Gerardo Roxas, et al.,
against the Commission on Elections, the Director of Printing, the
National Treasurer and the Auditor General (Case G.R. L-35940), by
Eddie B. Monteclaro against the Commission on Elections and the
Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey
Ordoñez, et al. against the National Treasurer and the Commission on
Elections (Case G.R. No. L-35942); on December 12, 1972, by Vidal
Tan, et al., against the Commission on Elections, the Treasurer of the
Philippines, the Auditor General and the Director of Printing (Case G.R.
No. L-35948) and by Jose W. Diokno and Benigno S. Aquino against
the Commission on Elections (Case G.R. No. L-35953); on December
14, 1972, by Jacinto Jimenez against the Commission on Elections,
the Auditor General, the Treasurer of the Philippines and the Director
of the Bureau of Printing (Case G.R. No. L-35961), and by Raul M.
Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor General (Case
G.R. No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo
against the Commission on Elections, the Secretary of Education, the
National Treasurer and the Auditor General (Case G.R. No. L-35979).
In all these cases, except the last (G.R. No. L-35979), the respondents
were required to file their answers "not later than 12:00 (o'clock) noon
of Saturday, December 16, 1972." Said cases were, also, set for
hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m.
The hearing was continued on December 19, 1972. By agreement of
the parties, the aforementioned last case — G.R. No. L-35979 — was,
also, heard, jointly with the others, on December 19, 1972. At the
conclusion of the hearing, on that date, the parties in all of the
aforementioned cases were given a short period of time within which
"to submit their notes on the points they desire to stress." Said notes
were filed on different dates, between December 21, 1972, and
January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an
order temporarily suspending the effects of Proclamation No. 1081, for
the purpose of free and open debate on the Proposed Constitution. On
December 23, the President announced the postponement of the
plebiscite for the ratification or rejection of the Proposed Constitution.
No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite
scheduled to be held on January 15, 1978, be postponed until further
notice." Said General Order No. 20, moreover, "suspended in the
meantime" the "order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open
debate on the proposed Constitution."
In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain, for the
time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were
known or announced officially. Then, again, Congress was, pursuant to
the 1935 Constitution, scheduled to meet in regular session on January
22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a
plebiscite and appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President — reportedly after
consultation with, among others, the leaders of Congress and the
Commission on Elections — the Court deemed it more imperative to
defer its final action on these cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that said case be decided "as
soon as possible, preferably not later than January 15, 1973." It was
alleged in said motion, inter alia:
"6. That the President subsequently announced the issuance of
Presidential Decree No. 86 organizing the so-called Citizens
Assemblies, to be consulted on certain public questions [Bulletin
Today, January 1, 1973];
"7. That thereafter it was later announced that "the Assemblies
will be asked if they favor or oppose —
[1] The New Society;
[2] Reforms instituted under Martial Law;
[3] The holding of a plebiscite on the proposed new Constitution
and when (the tentative new dates given following the postponement of
the plebiscite from the original date of January 15 are February 19 and
March 5);
[4] The opening of the regular session slated on January 22 in
accordance with the existing Constitution despite Martial Law." [Bulletin
Today, January 3, 1973.]
"8. That it was later reported that the following are to be the
forms of the questions to be asked to the Citizens Assemblies: —
[1] Do you approve of the New Society?
[2] Do you approve of the reform measures under martial law?
[3] Do you think that Congress should meet again in regular
session?
[4] How soon would you like the plebiscite on the new
Constitution to be held? [Bulletin Today, January 5, 1973].
"9. That the voting by the so-called Citizens Assemblies was
announced to take place during the period from January 10 to January
15, 1973;
"10. That on January 10, 1973, it was reported that on more
question would be added to the four (4) question previously
announced, and that the forms of the question would be as follows: —
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos running the affairs of
the government? [Bulletin Today, January 10, 1973; emphasis an
additional question.]
"11. That on January 11, 1973, it was reported that six (6) more
questions would be submitted to the so-called Citizens Assemblies: —
66
[1] Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interests?
[2] Do you approve of the new Constitution?
[3] Do you want a plebiscite to be called to ratify the new
Constitution?
[4] Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
[5] If the elections would not be held, when do you want the next
elections to be called?
[6] Do you want martial law to continue? [Bulletin Today,
January 11, 1973; emphasis supplied]
"12. That according to reports, the returns with respect to the six
(6) additional questions quoted above will be on a form similar or
identical to Annex "A" hereof;
"13. That attached to page 1 of Annex "A" is another page, which
we marked as Annex "A-1", and which reads: —
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it is
to be convened at all, it should not be done so until after at least seven
(7) years from the approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections
will be enough for stability to be established in the country, for reforms
to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him
to exercise his powers with more authority. We want him to be strong
and firm so that he can accomplish all his reform programs and
establish normalcy in the country. If all other measures fail, we want
President Marcos to declare a revolutionary government along the
lines of the new Constitution without the ad interim Assembly."
"Attention is respectfully invited to the comments on "Question No. 3,"
which reads: —
QUESTION No. 3
The vote of the Citizens Assemblies should be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
This, we are afraid, and therefore allege, is pregnant with ominous
possibilities.
14. That, in the meantime, speaking on television and over the
radio, on January 7, 1973, the President announced that the limited
freedom of debate on the proposed Constitution was being withdrawn
and that the proclamation of martial law and the orders and decrees
issued thereunder would thenceforth strictly be enforced [Daily
Express, January 8, 1973];
15. That petitioners have reason to fear, and therefore state, that
the question added in the last list of questions to be asked to the
Citizens Assemblies, namely: —
Do you approve of the New Constitution? —
in relation to the question following it: —

Do you still want a plebiscite to be called to ratify the new
Constitution?" —
would be an attempt to by-pass and short-circuit this Honorable Court
before which the question of the validity of the plebiscite on the
proposed Constitution is now pending;
"16. That petitioners have reason to fear, and therefore allege,
that if an affirmative answer to the two questions just referred to will be
reported then this Honorable Court and the entire nation will be
confronted with a fait accompli which has been attained in a highly
unconstitutional and undemocratic manner;
"17. That the fait accompli would consist in the supposed
expression of the people approving the proposed Constitution;
"18. That, if such event would happen, then the case before this
Honorable Court could, to all intents and purposes, become moot
because, petitioners fear, and they therefore allege, that on the basis
of such supposed expression of the will of the people through the
Citizens Assemblies, it would be announced that the proposed
Constitution, with all its defects, both congenital and otherwise, has
been ratified;
"19. That, in such a situation the Philippines will be facing a real
crisis and there is likelihood of confusion if not chaos, because then,
the people and their officials will not know which Constitution is in
force.
"20. That the crisis mentioned above can only be avoided if this
Honorable Court will immediately decide and announce its decision on
the present petition;
"21. That with the withdrawal by the President of the limited
freedom of discussion on the proposed Constitution which was given to
the people pursuant to Sec. 3 of Presidential Decree No. 73, the
opposition of respondents to petitioners' prayer at the plebiscite be
prohibited has now collapsed and that a free plebiscite can no longer
be held."
At about the same time, a similar prayer was made in a "manifestation"
filed by the petitioners in L-35949, "Gerardo Roxas, et al. v.
Commission on Elections, et al.," and L-35942, "Sedfrey A. Ordoñez,
et al. v. The National Treasurer, et al."
The next day, January 13, 1973, which was a Saturday, the Court
issued a resolution requiring the respondents in said three (3) cases to
comment on said "urgent motion" and "manifestation," "not later than
Tuesday noon, January 16, 1973." Prior thereto, or on January 15,
1973, shortly before noon, the petitioners in said Case G.R. No. L-
35948 riled a "supplemental motion for issuance of restraining order
and inclusion of additional respondents," praying —
"... that a restraining order be issued enjoining and restraining
respondent Commission on Elections, as well as the Department of
Local Governments and its head, Secretary Jose Roño; the
Department of Agrarian Reforms and its head, Secretary Conrado
Estrella; the National Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; their deputies, subordinates and
substitutes, and all other officials and persons who may be assigned
such task, from collecting, certifying, and announcing and reporting to
the President or other officials concerned, the so-called Citizens'
Assemblies referendum results allegedly obtained when they were
supposed to have met during the period comprised between January
10 and January 15, 1973, on the two questions quoted in paragraph 1
of this Supplemental Urgent Motion."
In support of this prayer, it was alleged —
"3. That petitioners are now before this Honorable Court in order
to ask further that this Honorable Court issue a restraining order
enjoining herein respondents, particularly respondent Commission on
Elections as well as the Department of Local Governments and its
head, Secretary Jose Roño; the Department of Agrarian Reforms and
its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; and
their deputies, subordinates and/or substitutes, from collecting,
certifying, announcing and reporting to the President the supposed
Citizens' Assemblies referendum results allegedly obtained when they
were supposed to have met during the period between January 10 and
January 15, 1973, particularly on the two questions quoted in
paragraph 1 of this Supplemental Urgent Motion;
"4. That the proceedings of the so-called Citizens' Assemblies
are illegal, null and void particularly insofar as such proceedings are
being made the basis of a supposed consensus for the ratification of
the proposed Constitution because: —
[a] The elections contemplated in the Constitution, Article XV, at
which the proposed constitutional amendments are to be submitted for
ratification, are elections at which only qualified and duly registered
voters are permitted to vote, whereas, the so called Citizens'
67
Assemblies were participated in by persons 15 years of age and older,
regardless of qualifications or lack thereof, as prescribed in the
Election Code;
[b] Elections or plebiscites for the ratification of constitutional
amendments contemplated in Article XV of the Constitution have
provisions for the secrecy of choice and of vote, which is one of the
safeguards of freedom of action, but votes in the Citizens' Assemblies
were open and were cast by raising hands;
[c] The Election Code makes ample provisions for free, orderly
and honest elections, and such provisions are a minimum requirement
for elections or plebiscites for the ratification of constitutional
amendments, but there were no similar provisions to guide and
regulate proceedings of the so called Citizens' Assemblies;
[d] It is seriously to be doubted that, for lack of material time,
more than a handful of the so called Citizens' Assemblies have been
actually formed, because the mechanics of their organization were still
being discussed a day or so before the day they were supposed to
begin functioning: —
"Provincial governors and city and municipal mayors had been meeting
with barrio captains and community leaders since last Monday
[January 8, 1973) to thresh out the mechanics in the formation of the
Citizens Assemblies and the topics for discussion." [Bulletin Today,
January 10, 1973]
"It should be recalled that the Citizens' Assemblies were ordered
formed only at the beginning of the year [Daily Express, January 1,
1973], and considering the lack of experience of the local organizers of
said assemblies, as well as the absence of sufficient guidelines for
organization, it is too much to believe that such assemblies could be
organized at such a short notice.
"5. That for lack of material time, the appropriate amended
petition to include the additional officials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion could
not be completed because, as noted in the Urgent Motion of January
12, 1973, the submission of the proposed Constitution to the Citizens'
Assemblies was not made known to the public until January 11, 1973.
But be that as it may, the said additional officials and agencies may be
properly included in the petition at bar because: —
[a] The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of "any
similar decree, proclamation, order or instruction.
so that Presidential Decree No. 86, insofar at least as it attempts to
submit the proposed Constitution to a plebiscite by the so-called
Citizens' Assemblies, is properly in issue in this case, and those who
enforce, implement, or carry out the said Presidential Decree No. 86.
and the instructions incidental thereto clearly fall within the scope of
this petition;
[b] In their petition, petitioners sought the issuance of a writ of
preliminary injunction restraining not only the respondents named in
the petition but also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar decree, order,
instruction, or proclamation in relation to the holding of a plebiscite on
January 15, 1973 for the purpose of submitting to the Filipino people
for their ratification or rejection the 1972 Draft or proposed Constitution
approved by the Constitutional Convention on November 30, 1972";
and finally,
[c] Petitioners prayed for such other relief which may be just
and equitable. [p. 39, Petition].
"Therefore, viewing the case from all angles, the officials and
government agencies mentioned in paragraph 3 of this Supplemental
Urgent Motion, can lawfully be reached by the processes of this
Honorable Court by reason of this petition, considering, furthermore,
that the Commission on Elections has under our laws the power,
among others, of: —
(a) Direct and immediate supervision and control over national,
provincial, city, municipal and municipal district officials required by law
to perform duties relative to the conduct of elections on matters
pertaining to the enforcement of the provisions of this Code ..."
[Election Code of 1971, Sec. 3].
"6. That unless the petition at bar is decided immediately and
the Commission on Elections, together with the officials and
government agencies mentioned in paragraph 3 of this Supplemental
Urgent Motion are restrained or enjoined from collecting, certifying,
reporting or announcing to the President the results of the alleged
voting of the so-called Citizens' Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the
cause of freedom an democracy, and the petitioners herein because:
[a] After the result of the supposed voting on the questions
mentioned in paragraph 1 hereof shall have been announced, a conflict
will arise between those who maintain that the 1935 Constitution is still
in force, on the one hand, and those who will maintain that it has been
superseded by the proposed Constitution, on the other, thereby
creating confusion, if not chaos;
[b] Even the jurisdiction of this Court will be subject to serious
attack because the advocates of the theory that the proposed
Constitution has been ratified by reason of the announcement of the
results of the proceedings of the so-called Citizens' Assemblies will
argue that, General Order No. 3, which shall also be deemed ratified
pursuant to the Transitory Provisions of the proposed Constitution, has
placed Presidential Decree Nos. 73 and 86 beyond the reach and
jurisdiction of this Honorable Court."
On the same date — January 15, 1973 — the Court passed a
resolution requiring the respondents in said case G.R. No. L-35948 to
file "file an answer to the said motion not later than 4 P.M., Tuesday,
January 16, 1973," and setting the motion for hearing "on January 17,
1973, at 9:30 a.m." While the case was being heard, on the date last
mentioned, at noontime, the Secretary of Justice called on the writer of
this opinion and said that, upon instructions of the President, he (the
Secretary of Justice) was delivering to him (the writer) a copy of
Proclamation No. 1102, which had just been signed by the President.
Thereupon, the writer returned to the Session Hall and announced to
the Court, the parties in G.R. No. L-35948 — inasmuch as the hearing
in connection therewith was still going on — and the public there
present that the President had, according to information conveyed by
the Secretary of Justice, signed said Proclamation No. 1102, earlier
that morning. Thereupon, the writer read Proclamation No. 1102 which
is of the following tenor:
"BY THE PRESIDENT OF THE PHILIPPINES
"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF
THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to ratification by the
Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios, in
municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 86, dated December 31, 1972, composed of
all persons who are residents of the barrio, district or ward for at least
six months, fifteen years of age or over, citizens of the Philippines and
who are registered in the list of Citizen Assembly members kept by the
barrio, district or ward secretary;
"WHEREAS, the said Citizens Assemblies were established precisely
to broaden the base of citizen participation in the democratic process
and to afford ample opportunity for the citizenry to express their views
on important national issues;
"WHEREAS, responding to the clamor of the people and pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before the Citizens Assemblies or Barangays:
Do you approve of the New Constitution? Do you still want a plebiscite
to be called to ratify the new Constitution?
"WHEREAS, fourteen million nine hundred seventy-six thousand five
hundred sixty-one (14,976,561) members of all the Barangays
(Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight
hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to
be called to ratify the new Constitution, fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered
that there was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a vote in a
plebiscite;
"WHEREAS, since the referendum results show that more than ninety-
five (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng Mga
Barangay has strongly recommended that the new Constitution should
already be deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution,
do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
has been ratified by an overwhelming majority of all of the votes cast
by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my hand and caused
the seal of the Republic of the Philippines to be affixed.
"Done in the City of Manila, this 17th day of January, in the year of Our
Lord, nineteen hundred and seventy-three.
68
(Sgd.) FERDINAND E. MARCOS
"President of the Philippines
"By the President:
"ALEJANDRO MELCHOR
"Executive Secretary"
Such is the background of the cases submitted determination. After
admitting some of the allegations made in the petition in L-35948 and
denying the other allegations thereof, respondents therein alleged in
their answer thereto, by way affirmative defenses: 1) that the
"questions raised" in said petition "are political in character"; 2) that
"the Constitutional Convention acted freely and had plenary authority to
propose not only amendments but a Constitution which would
supersede the present Constitution"; 3) that "the President's call for a
plebiscite and the appropriation of funds for this purpose are valid"; 4)
that "there is not an improper submission" and "there can be a
plebiscite under Martial Law"; and 5) that the "argument that the
Proposed Constitution is vague and incomplete, makes an
unconstitutional delegation of power, includes a referendum on the
proclamation of Martial Law and purports to exercise judicial power" is
"not relevant and ... without merit." Identical defenses were set up in
the other cases under consideration.
Immediately after the hearing held on January 17, 1973, or since the
afternoon of that date, the Members of the Court have been
deliberating on the aforementioned cases and, after extensive
discussions on the merits thereof, have deemed it best that each
Member write his own views thereon and that thereafter the Chief
Justice should state the result or the votes thus cast on the points in
issue. Hence, the individual views of my brethren in the Court are set
forth in the opinions attached hereto, except that, instead of writing
their separate opinions, some Members have preferred to merely
concur in the opinion of one of our colleagues.
Then the writer of said decision expressed his own opinion on the
issues involved therein, after which he recapitulated the views of the
Members of the Court, as follows:
1. There is unanimity on the justiciable nature of the issue on
the legality of Presidential Decree No. 73.
2. On the validity of the decree itself, Justices Makalintal,
Castro, Fernando, Teehankee, Esguerra and myself, or six (6)
Members of the Court, are of the opinion that the issue has become
moot and academic, whereas Justices Barredo, Makasiar and Antonio
voted to uphold the validity of said Decree.
3. On the authority of the 1971 Constitutional Convention to
pass the proposed Constitution or to incorporate therein the provisions
contested by the petitioners in L-35948, Justices Makalintal, Castro,
Teehankee and Esguerra opine that the issue has become moot and
academic. Justices Fernando, Barredo, Makasiar, Antonio and myself
have voted to uphold the authority of the Convention.
4. Justice Fernando, likewise, expressed the view that the 1971
Constitutional Convention had authority to continue in the performance
of its functions despite the proclamation of Martial Law. In effect,
Justices Barredo, Makasiar and Antonio hold the same view.
5. On the question whether the proclamation of Martial Law
affected the proper submission of the proposed Constitution to a
plebiscite, insofar as the freedom essential therefor is concerned,
Justice Fernando is of the opinion that there is a repugnancy between
the election contemplated under Art. XV of the 1935 Constitution and
the existence of Martial Law, and would, therefore, grant the petitions
were they not moot and academic. Justices Barredo, Antonio and
Esguerra are of the opinion that issue involves questions of fact which
cannot be predetermined, and that Martial Law per se does not
necessarily preclude the factual possibility of adequate freedom, for the
purposes contemplated.
6. On Presidential Proclamation No. 1102, the following views
were expressed:
a. Justices Makalintal, Castro, Fernando, Teehankee,
Makasiar, Esguerra and myself are of the opinion that the question of
validity of said Proclamation has not been properly raised before the
Court, which, accordingly, should not pass upon such question.
b. Justice Barredo holds that the issue on the constitutionality
of Proclamation No. 1102 has been submitted to and should be
determined by the Court, and that the "purported ratification of the
Proposed Constitution ... based on the referendum among Citizens'
Assemblies falls short of being in strict conformity with the
requirements of Article XV of the 1935 Constitution," but that such
unfortunate drawback notwithstanding, "considering all other related
relevant circumstances, ... the new Constitution is legally recognizable
and should be recognized as legitimately in force."
c. Justice Zaldivar maintains unqualifiedly that the Proposed
Constitution has not been ratified in accordance with Article XV of the
1935 Constitution, and that, accordingly, it has no force and effect
whatsoever.
d. Justice Antonio feels "that the Court is not competent to act"
on the issue whether the Proposed Constitution has been ratified by
the people or not, "in the absence of any judicially discoverable and
manageable standards," since the issue "poses a question of fact.
7. On the question whether or not these cases should be
dismissed, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra voted in the affirmative, for the reasons set forth in their
respective opinions. Justices Fernando, Teehankee, and the writer
similarly voted, except as regards Case No. L-35948 as to which they
voted to grant to the petitioners therein a reasonable period of time
within which to file appropriate pleadings should they wish to contest
the legality of Presidential Proclamation No. 1102. Justice Zaldivar
favors the granting of said period to the petitioners in said Case No. L-
35948 for the aforementioned purpose, but he believes, in effect, that
the Court should go farther and decide on the merits everyone of the
cases under consideration.
Accordingly, the Court — acting in conformity with the position taken by
six (6) of its members,1 with three (3) members dissenting,2 with
respect to G.R. No. L-35948, only and another member3 dissenting, as
regards all of the cases dismissed the same, without special
pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R.
No. L-36142 against the Executive Secretary and the Secretaries of
National Defense, Justice and Finance, to restrain said respondents
"and their subordinates or agents from implementing any of the
provisions of the propose Constitution not found in the present
Constitution" — referring to that of 1935. The petition therein, filed by
Josue Javellana, as a "Filipino citizen, and a qualified and registered
voter" and as "a class suit, for himself, and in behalf of all citizens and
voters similarly situated," was amended on or about January 24, 1973.
After reciting in substance the facts set forth in the decision in the
plebiscite cases, Javellana alleged that the President had announced
"the immediate implementation of the New Constitution, thru his
Cabinet, respondents including," and that the latter "are acting without,
or in excess of jurisdiction in implementing the said proposed
Constitution" upon the ground: "that the President, as Commander-in-
Chief of the Armed Forces of the Philippines, is without authority to
create the Citizens Assemblies"; that the same "are without power to
approve the proposed Constitution ..."; "that the President is without
power to proclaim the ratification by the Filipino people of the proposed
Constitution"; and "that the election held to ratify the proposed
Constitution was not a free election, hence null and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J.
Antonio Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda,
Emilio de Peralta and Lorenzo M. Tañada, against the Executive
Secretary, the Secretaries of Finance, Justice, Land Reform, and
National Defense, the Auditor General, the Budget Commissioner, the
Chairman of the Presidential Commission on Reorganization, the
Treasurer of the Philippines, the Commission on Elections and the
Commissioner of Civil Service4 on February 3, 1973, by Eddie
Monteclaro, personally and as President of the National Press Club of
the Philippines, against the Executive Secretary, the Secretary of
Public Information, the Auditor General, the Budget Commissioner and
the National Treasurer5 and on February 12, 1973, by Napoleon V.
Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M.
Gonzales,6 against the Executive Secretary, the Secretary of National
Defense, the Budget Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla,
Jovito R. Salonga, Salvador H. Laurel,7 Ramon V. Mitra, Jr. and Eva
Estrada-Kalaw, the first as "duly elected Senator and Minority Floor
Leader of the Senate," and others as "duly elected members" thereof,
filed Case G.R. No. L-36165, against the Executive Secretary, the
Secretary National Defense, the Chief of Staff of the Armed Forces of
the Philippines, the Secretary of General Services, the President and
the President Pro Tempore of the Senate. In their petition — as
amended on January 26, 1973 — petitioners Gerardo Roxas, et al.
allege, inter alia, that the term of office of three of the aforementioned
petitioners8 would expire on December 31, 1975, and that of the
others9 on December 31, 1977; that pursuant to our 1935 Constitution,
"which is still in force Congress of the Philippines "must convene for its
8th Session on Monday, January 22, 1973, at 10:00 A.M., which is
regular customary hour of its opening session"; that "on said day, from
10:00 A.M. up to the afternoon," said petitioner "along with their other
colleagues, were unlawfully prevented from using the Senate Session
Hall, the same having been closed by the authorities in physical
possession and control the Legislative Building"; that "(a)t about 5:00
to 6:00 P.M. the said day, the premises of the entire Legislative
Building were ordered cleared by the same authorities, and no one was
allowed to enter and have access to said premises"; that "(r)espondent
Senate President Gil J. Puyat and, in his absence, respondent
President Pro Tempore Jose Roy we asked by petitioning Senators to
69
perform their duties under the law and the Rules of the Senate, but
unlawfully refrained and continue to refrain from doing so"; that the
petitioners ready and willing to perform their duties as duly elected
members of the Senate of the Philippines," but respondent Secretary of
National Defense, Executive Secretary and Chief of Staff, "through
their agents and representatives, are preventing petitioners from
performing their duties as duly elected Senators of the Philippines";
that "the Senate premise in the Congress of the Philippines Building ...
are occupied by and are under the physical control of the elements
military organizations under the direction of said respondents"; that, as
per "official reports, the Department of General Services ... is now the
civilian agency in custody of the premises of the Legislative Building";
that respondents "have unlawfully excluded and prevented, and
continue to so exclude and prevent" the petitioners "from the
performance of their sworn duties, invoking the alleged approval of the
1972 (1973) Constitution of the Philippines by action of the so-called
Citizens' Assemblies on January 10, 1973 to January 15, 1973, as
stated in and by virtue of Proclamation No. 1102 signed and issued by
the President of the Philippines"; that "the alleged creation of the
Citizens' Assemblies as instrumentalities for the ratification of the
Constitution of the Republic of the Philippines" is inherently illegal and
palpably unconstitutional; that respondents Senate President and
Senate President Pro Tempore "have unlawfully refrained and continue
to refrain from and/or unlawfully neglected and continue to neglect the
performance of their duties and functions as such officers under the
law and the Rules of the Senate" quoted in the petition; that because of
events supervening the institution of the plebiscite cases, to which
reference has been made in the preceding pages, the Supreme Court
dismissed said cases on January 22, 1973, by a majority vote, upon
the ground that the petitions therein had become moot and academic;
that the alleged ratification of the 1972 (1973) Constitution "is illegal,
unconstitutional and void and ... can not have superseded and revoked
the 1935 Constitution," for the reasons specified in the petition as
amended; that, by acting as they did, the respondents and their
"agents, representatives and subordinates ...have excluded the
petitioners from an office to which" they "are lawfully entitled"; that
"respondents Gil J. Puyat and Jose Roy have unlawfully refrained from
convening the Senate for its 8th session, assuming general jurisdiction
over the Session Hall and the premises of the Senate and ... continue
such inaction up to this time and ... a writ of mandamus is warranted in
order to compel them to comply with the duties and functions
specifically enjoined by law"; and that "against the above mentioned
unlawful acts of the respondents, the petitioners have no appeal nor
other speedy and adequate remedy in the ordinary course of law
except by invoking the equitable remedies of mandamus and
prohibition with the provisional remedy of preliminary mandatory
injunction."
Premised upon the foregoing allegations, said petitioners prayed that,
"pending hearing on the merits, a writ of preliminary mandatory
injunction be issued ordering respondents Executive Secretary, the
Secretary of National Defense, the Chief of Staff of the Armed Forces
of the Philippines, and the ... Secretary of General Service, as well as
all their agents, representatives and subordinates to vacate the
premises of the Senate of the Philippines and to deliver physical
possession of the same to the President of the Senate or his
authorized representative"; and that hearing, judgment be rendered
declaring null and Proclamation No. 1102 ... and any order, decree,
proclamation having the same import and objective, issuing writs of
prohibition and mandamus, as prayed for against above-mentioned
respondents, and making the writ injunction permanent; and that a writ
of mandamus be issued against the respondents Gil J. Puyat and Jose
Roy directing them to comply with their duties and functions as
President and President Pro Tempore, respectively, of the Senate of
Philippines, as provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or
amended petitions, respondents filed, with the leave Court first had and
obtained, a consolidated comment on said petitions and/or amended
petitions, alleging that the same ought to have been dismissed outright;
controverting petitioners' allegations concerning the alleged lack
impairment of the freedom of the 1971 Constitution Convention to
approve the proposed Constitution, its alleged lack of authority to
incorporate certain contested provisions thereof, the alleged lack of
authority of the President to create and establish Citizens' Assemblies
"for the purpose submitting to them the matter of ratification of the new
Constitution," the alleged "improper or inadequate submiss of the
proposed constitution," the "procedure for ratification adopted ...
through the Citizens Assemblies"; a maintaining that: 1) "(t)he Court is
without jurisdiction to act on these petitions"; 2) the questions raised
therein are "political in character and therefore nonjusticiable"; 3) "there
substantial compliance with Article XV of the 1 Constitution"; 4) "(t)he
Constitution was properly submitted the people in a free, orderly and
honest election; 5) "Proclamation No. 1102, certifying the results of the
election, is conclusive upon the courts"; and 6) "(t)he amending
process outlined in Article XV of the 1935 Constitution is not exclusive
of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their
separate comment therein, alleging that "(t)he subject matter" of said
case "is a highly political question which, under the circumstances, this
...Court would not be in a position to act upon judicially," and that, in
view of the opinions expressed by three members of this Court in its
decision in the plebiscite cases, in effect upholding the validity of
Proclamation No. 1102, "further proceedings in this case may only be
an academic exercise in futility."
On February 5, 1973, the Court issued a resolution requiring
respondents in L-36236 to comment on the petition therein not later
than Saturday, February 10, 1973, and setting the case for hearing on
February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973,
this Court resolved to consider the comments of the respondents in
cases G.R. Nos. L-36142, L-36164, and L-36165, as motions to
dismiss the petitions therein, and to set said cases for hearing on the
same date and time as L-36236. On that date, the parties in G.R. No.
L-36283 10 agreed that the same be, likewise, heard, as it was, in fact,
heard jointly with the aforementioned cases G.R. Nos. L-36142, L-
36164, L-36165 and L-36236. The hearing, which began on February
12, 1973, shortly after 9:30 a.m., was continued not only that
afternoon, but, also, on February 13, 14, 15 and 16, morning and
afternoon, after which the parties were granted up to February 24,
1973, noon, within which to submit their notes of oral arguments and
additional arguments, as well as the documents required of them or
whose presentation was reserved by them. The same resolution
granted the parties until March 1, 1973, to reply to the notes filed by
their respective opponents. Counsel for the petitioners in G.R. Nos. L-
36164 and L-36165 filed their aforementioned notes on February 24,
1973, on which date the Solicitor General sought an extension of time
up to March 3, 1973, within which to file his notes, which was granted,
with the understanding that said notes shall include his reply to the
notes already filed by the petitioners in G.R. Nos. L-36164 a L-36165.
Counsel for the petitioners, likewise, moved and were granted an
extension of time, to expire on March 10, 1973, within which to file, as
they did, their notes in reply to those submitted by the Solicitor General
on March 3, 1973. On March 21, 1973, petitioners in L-36165 filed a
"Manifestation a Supplemental Rejoinder," whereas the Office of the
Solicitor General submitted in all these cases a "Rejoinder Petitioners'
Replies."
After deliberating on these cases, the members of the Court agreed
that each would write his own opinion and serve a copy thereof on his
colleagues, and this they did. Subsequently, the Court discussed said
opinions and votes were cast thereon. Such individual opinions are
appended hereto.
Accordingly, the writer will first express his person opinion on the
issues before the Court. After the exposition his aforesaid opinion, the
writer will make, concurrently with his colleagues in the Court, a
resume of summary of the votes cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat
and Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General,
is predicated upon the fact that, in Our decision in the plebiscite cases,
Mr. Justice Barredo had expressed the view that the 1935 Constitution
had "pro tanto passed into history" and "been legitimately supplanted
by the Constitution now in force by virtue of Proclamation No. 1102 ...";
that Mr. Justice Antonio did not feel "that this Court competent to act"
in said cases "in the absence of any judicially discoverable and
manageable standards" and because "the access to relevant
information is insufficient to assure the correct determination of the
issue," apart from the circumstance that "the new constitution has been
promulgated and great interests have already arisen under it" and that
the political organ of the Government has recognized its provisions;
whereas, Mr. Justice Esguerra had postulated that "(w)ithout any
competent evidence ... about the circumstances attending the holding"
of the "referendum or plebiscite" thru the Citizens' Assemblies, he
"cannot say that it was not lawfully held" and that, accordingly, he
assumed "that what the proclamation (No. 1102) says on its face is
true and until overcome by satisfactory evidence" he could not
"subscribe to the claim that such plebiscite was not held accordingly";
and that he accepted "as a fait accompli that the Constitution adopted
(by the 1971 Constitutional Convention) on November 30, 1972, has
been duly ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say
that, under these circumstances, "it seems remote or improbable that
the necessary eight (8) votes under the 1935 Constitution, and much
less the ten (10) votes required by the 1972 (1973) Constitution, can
be obtained for the relief sought in the Amended Petition" in G.R. No.
L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo
announced publicly, in open court, during the hearing of these cases,
that he was and is willing to be convinced that his aforementioned
opinion in the plebiscite cases should be reconsidered and changed. In
effect, he thus declared that he had an open mind in connection with
the cases at bar, and that in deciding the same he would not
necessarily adhere to said opinion if the petitioners herein succeeded
in convincing him that their view should be sustained.
70
Secondly, counsel for the aforesaid respondents had apparently
assumed that, under the 1935 Constitution, eight (8) votes are
necessary to declare invalid the contested Proclamation No. 1102. I do
not believe that this assumption is borne out by any provision of said
Constitution. Section 10 of Article VIII thereof reads:
All cases involving the constitutionality of a treaty or law shall be heard
and decided by the Supreme Court in banc, and no treaty or law may
be declared unconstitutional without the concurrence of two thirds of all
the members of the Court.
Pursuant to this section, the concurrence of two-thirds of all the
Members of the Supreme Court is required only to declare "treaty or
law" unconstitutional. Construing said provision, in a resolution dated
September 16, 1949, then Chief Justice Moran, voicing the unanimous
view of the Members of this Court, postulated:
... There is nothing either in the Constitution or in the Judiciary Act
requiring the vote of eight Justices to nullify a rule or regulation or an
executive order issued by the President. It is very significant that in the
previous drafts of section 10, Article VIII of the Constitution, "executive
order" and "regulation" were included among those that required for
their nullification the vote of two-thirds of all the members of the Court.
But "executive order" and "regulation" were later deleted from the final
draft (Aruego, The Framing of the Philippine Constitution, Vol. I, pp.
495, 496), and thus a mere majority of six members of this Court is
enough to nullify them. 11
The distinction is not without reasonable foundation. The two thirds
vote (eight [8] votes) requirement, indeed, was made to apply only to
treaty and law, because, in these cases, the participation of the two
other departments of the government — the Executive and the
Legislative — is present, which circumstance is absent in the case of
rules, regulations and executive orders. Indeed, a law (statute) passed
by Congress is subject to the approval or veto of the President, whose
disapproval cannot be overridden except by the vote of two-thirds (2/3)
of all members of each House of Congress. 12 A treaty is entered into
by the President with the concurrence of the Senate, 13 which is not
required in the case of rules, regulations or executive orders which are
exclusive acts of the President. Hence, to nullify the same, a lesser
number of votes is necessary in the Supreme Court than that required
to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive orders
issued by the President, the dictum applies with equal force to
executive proclamation, like said Proclamation No. 1102, inasmuch as
the authority to issue the same is governed by section 63 of the
Revised Administrative Code, which provides:
Administrative acts and commands of the (Governor-General)
President of the Philippines touching the organization or mode of
operation of the Government or rearranging or readjusting any of the
districts, divisions, parts or ports of the (Philippine Islands) Philippines
and all acts and commands governing the general performance of
duties by public employees or disposing of issues of general concern
shall be made effective in executive orders.
Executive orders fixing the dates when specific laws, resolutions, or
orders are to have or cease to (have) effect and any information
concerning matters of public moment determined by law, resolution, or
executive orders, may be promulgated in an executive proclamation,
with all the force of an executive order. 14
In fact, while executive order embody administrative acts or commands
of the President, executive proclamations are mainly informative and
declaratory in character, and so does counsel for respondents Gil J.
Puyat and Jose Roy maintain in G.R. No.
L-36165. 15 As consequence, an executive proclamation has no more
than "the force of an executive order," so that, for the Supreme Court
to declare such proclamation unconstitutional, under the 1935
Constitution, the same number of votes needed to invalidate an
executive order, rule or regulation — namely, six (6) votes — would
suffice.
As regards the applicability of the provisions of the proposed new
Constitution, approved by the 1971 Constitutional Convention, in the
determination of the question whether or not it is now in force, it is
obvious that such question depends upon whether or not the said new
Constitution has been ratified in accordance with the requirements of
the 1935 Constitution, upon the authority of which said Constitutional
Convention was called and approved the proposed Constitution. It is
well settled that the matter of ratification of an amendment to the
Constitution should be settled by applying the provisions of the
Constitution in force at the time of the alleged ratification, or the old
Constitution. 16
II
Does the issue on the validity of Proclamation No. 1102 partake of the
nature of a political, and, hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative view
and this is his main defense. In support thereof, he alleges that
"petitioners would have this Court declare as invalid the New
Constitution of the Republic" from which — he claims — "this Court
now derives its authority"; that "nearly 15 million of our body politic
from the age of 15 years have mandated this Constitution to be the
New Constitution and the prospect of unsettling acts done in reliance
on it caution against interposition of the power of judicial review"; that
"in the case of the New Constitution, the government has been
recognized in accordance with the New Constitution"; that "the
country's foreign relations are now being conducted in accordance with
the new charter"; that "foreign governments have taken note of it"; that
the "plebiscite cases" are "not precedents for holding questions
regarding proposal and ratification justiciable"; and that "to abstain
from judgment on the ultimate issue of constitutionality is not to
abdicate duty."
At the outset, it is obvious to me that We are not being asked to
"declare" the new Constitution invalid. What petitioners dispute is the
theory that it has been validly ratified by the people, especially that
they have done so in accordance with Article XV of the 1935
Constitution. The petitioners maintain that the conclusion reached by
the Chief Executive in the dispositive portion of Proclamation No. 1102
is not borne out by the whereases preceding the same, as the
predicates from which said conclusion was drawn; that the plebiscite or
"election" required in said Article XV has not been held; that the Chief
Executive has no authority, under the 1935 Constitution, to dispense
with said election or plebiscite; that the proceedings before the
Citizens' Assemblies did not constitute and may not be considered as
such plebiscite; that the facts of record abundantly show that the
aforementioned Assemblies could not have been held throughout the
Philippines from January 10 to January 15, 1973; and that, in any
event, the proceedings in said Assemblies are null and void as an
alleged ratification of the new Constitution proposed by the 1971
Constitutional Convention, not only because of the circumstances
under which said Assemblies had been created and held, but, also,
because persons disqualified to vote under Article V of the Constitution
were allowed to participate therein, because the provisions of our
Election Code were not observed in said Assemblies, because the
same were not held under the supervision of the Commission on
Elections, in violation of section 2 of Article X of the 1935 Constitution,
and because the existence of Martial Law and General Order No. 20,
withdrawing or suspending the limited freedom to discuss the merits
and demerits of said proposed Constitution, impaired the people's
freedom in voting thereon, particularly a viva voce, as it was done in
many instances, as well as their ability to have a reasonable
knowledge of the contents of the document on which they were
allegedly called upon to express their views.
Referring now more specifically to the issue on whether the new
Constitution proposed by the 1971 Constitutional Convention has been
ratified in accordance with the provisions of Article XV of the 1935
Constitution is a political question or not, I do not hesitate to state that
the answer must be in the negative. Indeed, such is the position taken
by this Court, 17 in an endless line of decisions, too long to leave any
room for possible doubt that said issue is inherently and essentially
justiciable. Such, also, has been the consistent position of the courts of
the United States of America, whose decisions have a persuasive
effect in this jurisdiction, our constitutional system in the 1935
Constitution being patterned after that of the United States. Besides,
no plausible reason has, to my mind, been advanced to warrant a
departure from said position, consistently with the form of government
established under said Constitution..
Thus, in the aforementioned plebiscite cases, 18 We rejected the
theory of the respondents therein that the question whether
Presidential Decree No. 73 calling a plebiscite to be held on January
15, 1973, for the ratification or rejection of the proposed new
Constitution, was valid or not, was not a proper subject of judicial
inquiry because, they claimed, it partook of a political nature, and We
unanimously declared that the issue was a justiciable one. With
identical unanimity, We overruled the respondents' contention in the
1971 habeas corpus cases, 19 questioning Our authority to determine
the constitutional sufficiency of the factual bases of the Presidential
proclamation suspending the privilege of the writ of habeas corpus on
August 21, 1971, despite the opposite view taken by this Court in
Barcelona v. Baker 20 and Montenegro v. Castañeda, 21 insofar as it
adhered to the former case, which view We, accordingly, abandoned
and refused to apply. For the same reason, We did not apply and
expressly modified, in Gonzales v. Commission on Elections, 22 the
political-question theory adopted in Mabanag v. Lopez Vito. 23 Hence,
respondents herein urge Us to reconsider the action thus taken by the
Court and to revert to and follow the views expressed in Barcelon v.
Baker and Mabanag v. Lopez Vito. 24
The reasons adduced in support thereof are, however, substantially the
same as those given in support of the political-question theory
advanced in said habeas corpus and plebiscite cases, which were
carefully considered by this Court and found by it to be legally unsound
and constitutionally untenable. As a consequence, Our decision in the
aforementioned habeas corpus cases partakes of the nature and effect
of a stare decisis, which gained added weight by its virtual reiteration in
the plebiscite cases.
71
The reason why the issue under consideration and other issues of
similar character are justiciable, not political, is plain and simple. One
of the principal bases of the non-justiciability of so-called political
questions is the principle of separation of powers — characteristic of
the Presidential system of government — the functions of which are
classified or divided, by reason of their nature, into three (3) categories,
namely: 1) those involving the making of laws, which are allocated to
the legislative department; 2) those concerned mainly with the
enforcement of such laws and of judicial decisions applying and/or
interpreting the same, which belong to the executive department; and
3) those dealing with the settlement of disputes, controversies or
conflicts involving rights, duties or prerogatives that are legally
demandable and enforceable, which are apportioned to courts of
justice. Within its own sphere — but only within such sphere — each
department is supreme and independent of the others, and each is
devoid of authority, not only to encroach upon the powers or field of
action assigned to any of the other departments, but, also, to inquire
into or pass upon the advisability or wisdom of the acts performed,
measures taken or decisions made by the other departments —
provided that such acts, measures or decisions are within the area
allocated thereto by the Constitution. 25
This principle of separation of powers under the presidential system
goes hand in hand with the system of checks and balances, under
which each department is vested by the Fundamental Law with some
powers to forestall, restrain or arrest a possible or actual misuse or
abuse of powers by the other departments. Hence, the appointing
power of the Executive, his pardoning power, his veto power, his
authority to call the Legislature or Congress to special sessions and
even to prescribe or limit the object or objects of legislation that may be
taken up in such sessions, etc. Conversely, Congress or an agency or
arm thereof — such as the commission on Appointments — may
approve or disapprove some appointments made by the President. It,
also, has the power of appropriation, to "define, prescribe, and
apportion the jurisdiction of the various courts," as well as that of
impeachment. Upon the other hand, under the judicial power vested by
the Constitution, the "Supreme Court and ... such inferior courts as
may be established by law," may settle or decide with finality, not only
justiciable controversies between private individuals or entities, but,
also, disputes or conflicts between a private individual or entity, on the
one hand, and an officer or branch of the government, on the other, or
between two (2) officers or branches of service, when the latter officer
or branch is charged with acting without jurisdiction or in excess
thereof or in violation of law. And so, when a power vested in said
officer or branch of the government is absolute or unqualified, the acts
in the exercise of such power are said to be political in nature, and,
consequently, non-justiciable or beyond judicial review. Otherwise,
courts of justice would be arrogating upon themselves a power
conferred by the Constitution upon another branch of the service to the
exclusion of the others. Hence, in Tañada v. Cuenco, 26 this Court
quoted with approval from In re McConaughy, 27 the following:
"At the threshold of the case we are met with the assertion that the
questions involved are political, and not judicial. If this is correct, the
court has no jurisdiction as the certificate of the state canvassing board
would then be final, regardless of the actual vote upon the amendment.
The question thus raised is a fundamental one; but it has been so often
decided contrary to the view contended for by the Attorney General
that it would seem to be finally settled.
xxx xxx xxx
"... What is generally meant, when it is said that a question is political,
and not judicial, is that it is a matter which is to be exercised by the
people in their primary political capacity, or that it has been specifically
delegated to some other department or particular officer of the
government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50
Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed.
852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37
N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature
may in its discretion determine whether it will pass law or submit a
proposed constitutional amendment to the people. The courts have no
judicial control over such matters, not merely because they involve
political questions, but because they are matters which the people
have by the Constitution delegated to the Legislature. The Governor
may exercise the powers delegated him, free from judicial control, so
long as he observes the laws act within the limits of the power
conferred. His discretionary acts cannot be controllable, not primarily
because they are of a politics nature, but because the Constitution and
laws have placed the particular matter under his control. But every
officer under constitutional government must act accordingly to law and
subject its restrictions, and every departure therefrom or disregard
thereof must subject him to that restraining and controlling power of the
people, acting through the agency of the judiciary; for it must be
remembered that the people act through courts, as well as through the
executive or the Legislature. One department is just as representative
as the other, and the judiciary is the department which is charged with
the special duty of determining the limitations which the law places
upon all official action. The recognition of this principle, unknown
except in Great Britain and America, is necessary, to "the end that the
government may be one of laws and not of men" — words which
Webster said were the greatest contained in any written constitutional
document." (Emphasis supplied.)
and, in an attempt to describe the nature of a political question in
terms, it was hoped, understandable to the laymen, We added that "...
the term "political question" connotes, in legal parlance, what it means
in ordinary parlance, namely, a question of policy" in matters
concerning the government of a State, as a body politic. "In other
words, in the language of Corpus Juris Secundum (supra), it refers to
"those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure."
Accordingly, when the grant of power is qualified, conditional or subject
to limitations, the issue on whether or not the prescribed qualifications
or conditions have been met, or the limitations respected, is justiciable
or non-political, the crux of the problem being one of legality or validity
of the contested act, not its wisdom. Otherwise, said qualifications,
conditions or limitations — particularly those prescribed or imposed by
the Constitution — would be set at naught. What is more, the judicial
inquiry into such issue and the settlement thereof are the main
functions of courts of justice under the Presidential form of government
adopted in our 1935 Constitution, and the system of checks and
balances, one of its basic predicates. As a consequence, We have
neither the authority nor the discretion to decline passing upon said
issue, but are under the ineluctable obligation — made particularly
more exacting and peremptory by our oath, as members of the highest
Court of the land, to support and defend the Constitution — to settle it.
This explains why, in Miller v. Johnson, 28 it was held that courts have
a "duty, rather than a power", to determine whether another branch of
the government has "kept within constitutional limits." Not satisfied with
this postulate, the court went farther and stressed that, if the
Constitution provides how it may be amended — as it is in our 1935
Constitution — "then, unless the manner is followed, the judiciary as
the interpreter of that constitution, will declare the amendment invalid."
29 In fact, this very Court — speaking through Justice Laurel, an
outstanding authority on Philippine Constitutional Law, as well as one
of the highly respected and foremost leaders of the Convention that
drafted the 1935 Constitution — declared, as early as July 15, 1936,
that "(i)n times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is the
only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments" of the
government. 30
The Solicitor General has invoked Luther v. Borden 31 in support of his
stand that the issue under consideration is non-justiciable in nature.
Neither the factual background of that case nor the action taken therein
by the Federal Supreme Court has any similarity with or bearing on the
cases under consideration.
Luther v. Borden was an action for trespass filed by Luther with the
Circuit Court of the United States against Borden and others for having
forcibly entered into Luther's house, in Rhode Island, sometime in
1842. The defendants who were in the military service of said former
colony of England, alleged in their defense that they had acted in
obedience to the commands of a superior officer, because Luther and
others were engaged in a conspiracy to overthrow the government by
force and the state had been placed by competent authority under
Martial Law. Such authority was the charter government of Rhode
Island at the time of the Declaration of Independence, for — unlike
other states which adopted a new Constitution upon secession from
England — Rhode Island retained its form of government under a
British Charter, making only such alterations, by acts of the Legislature,
as were necessary to adapt it to its subsequent condition as an
independent state. It was under this form of government when Rhode
Island joined other American states in the Declaration of Independence
and, by subsequently ratifying the Constitution of the United States,
became a member of the Union. In 1843, it adopted a new
Constitution.
Prior thereto, however, many citizens had become dissatisfied with the
charter government. Memorials addressed by them to the Legislature
having failed to bring about the desired effect, meetings were held and
associations formed — by those who belonged to this segment of the
population — which eventually resulted in a convention called for the
drafting of a new Constitution to be submitted to the people for their
adoption or rejection. The convention was not authorized by any law of
the existing government. The delegates to such convention framed a
new Constitution which was submitted to the people. Upon the return
of the votes cast by them, the convention declared that said
Constitution had been adopted and ratified by a majority of the people
and became the paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of
citizens of the state, contested, however, the validity of said
proceedings. This notwithstanding, one Thomas W. Dorr, who had
been elected governor under the new Constitution of the rebels,
prepared to assert authority by force of arms, and many citizens
assembled to support him. Thereupon, the charter government passed
72
an Act declaring the state under Martial Law and adopted measures to
repel the threatened attack and subdue the rebels. This was the state
of affairs when the defendants, who were in the military service of the
charter government and were to arrest Luther, for engaging in the
support of the rebel government — which was never able to exercise
any authority in the state — broke into his house.
Meanwhile, the charter government had taken measures to call its own
convention to revise the existing form of government. Eventually, a
new constitution was drafted by a convention held under the authority
of the charter government, and thereafter was adopted and ratified by
the people. "(T)he times and places at which the votes were to be
given, the persons who were to receive and return them, and the
qualifications of the voters having all been previously authorized and
provided for by law passed by the charter government," the latter
formally surrendered all of its powers to the new government,
established under its authority, in May 1843, which had been in
operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military
force, had made an unsuccessful attempt to take possession of the
state arsenal in Providence, but he was repulsed, and, after an
"assemblage of some hundreds of armed men under his command at
Chepatchet in the June following, which dispersed upon approach of
the troops of the old government, no further effort was made to
establish" his government. "... until the Constitution of 1843" —
adopted under the auspices of the charter government — "went into
operation, the charter government continued to assert its authority and
exercise its powers and to enforce obedience throughout the state ... ."
Having offered to introduce evidence to prove that the constitution of
the rebels had been ratified by the majority of the people, which the
Circuit Court rejected, apart from rendering judgment for the
defendants, the plaintiff took the case for review to the Federal
Supreme Court which affirmed the action of the Circuit Court, stating:
It is worthy of remark, however, when we are referring to the authority
of State decisions, that the trial of Thomas W. Dorr took place after the
constitution of 1843 went into operation. The judges who decided that
case held their authority under that constitution and it is admitted on all
hands that it was adopted by the people of the State, and is the lawful
and established government. It is the decision, therefore, of a State
court, whose judicial authority to decide upon the constitution and laws
of Rhode Island is not questioned by either party to this controversy,
although the government under which it acted was framed and adopted
under the sanction and laws of the charter government.
The point, then, raised here has been already decided by the courts of
Rhode Island. The question relates, altogether, to the constitution and
laws of that State, and the well settled rule in this court is, that the
courts of the United States adopt and follow the decisions of the State
courts in questions which concern merely the constitution and laws of
the State.
Upon what ground could the Circuit Court of the United States which
tried this case have departed from this rule, and disregarded and
overruled the decisions of the courts of Rhode Island? Undoubtedly the
courts of the United States have certain powers under the Constitution
and laws of the United States which do not belong to the State courts.
But the power of determining that a State government has been
lawfully established, which the courts of the State disown and
repudiate, is not one of them. Upon such a question the courts of the
United States are bound to follow the decisions of the State tribunals,
and must therefore regard the charter government as the lawful and
established government during the time of this contest. 32
It is thus apparent that the context within which the case of Luther v.
Borden was decided is basically and fundamentally different from that
of the cases at bar. To begin with, the case did not involve a federal
question, but one purely municipal in nature. Hence, the Federal
Supreme Court was "bound to follow the decisions of the State
tribunals" of Rhode Island upholding the constitution adopted under the
authority of the charter government. Whatever else was said in that
case constitutes, therefore, an obiter dictum. Besides, no decision
analogous to that rendered by the State Court of Rhode Island exists in
the cases at bar. Secondly, the states of the Union have a measure of
internal sovereignty upon which the Federal Government may not
encroach, whereas ours is a unitary form of government, under which
our local governments derive their authority from the national
government. Again, unlike our 1935 Constitution, the charter or organic
law of Rhode Island contained no provision on the manner, procedure
or conditions for its amendment.
Then, too, the case of Luther v. Borden hinged more on the question of
recognition of government, than on recognition of constitution, and
there is a fundamental difference between these two (2) types of
recognition, the first being generally conceded to be a political
question, whereas the nature of the latter depends upon a number of
factors, one of them being whether the new Constitution has been
adopted in the manner prescribed in the Constitution in force at the
time of the purported ratification of the former, which is essentially a
justiciable question. There was, in Luther v. Borden, a conflict between
two (2) rival governments, antagonistic to each other, which is absent
in the present cases. Here, the Government established under the
1935 Constitution is the very same government whose Executive
Department has urged the adoption of the new or revised Constitution
proposed by the 1971 Constitutional Convention and now alleges that
it has been ratified by the people.
In short, the views expressed by the Federal Supreme Court in Luther
v. Borden, decided in 1849, on matters other than those referring to its
power to review decisions of a state court concerning the constitution
and government of that state, not the Federal Constitution or
Government, are manifestly neither, controlling, nor even persuasive in
the present cases, having as the Federal Supreme Court admitted —
no authority whatsoever to pass upon such matters or to review
decisions of said state court thereon. In fact, referring to that case, the
Supreme Court of Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those
who assert that the courts have no power to determine questions of a
political character. It is interesting historically, but it has not the
slightest application to the case at bar. When carefully analyzed, it
appears that it merely determines that the federal courts will accept as
final and controlling a decision of the highest court of a state upon a
question of the construction of the Constitution of the state. ... . 33
Baker v. Carr, 34 cited by respondents, involved an action to annul a
Tennessee statute apportioning the seats in the General Assembly
among the counties of the State, upon the theory that the legislation
violated the equal protection clause. A district court dismissed the case
upon the ground, among others, that the issue was a political one, but,
after a painstaking review of the jurisprudence on the matter, the
Federal Supreme Court reversed the appealed decision and held that
said issue was justiciable and non-political, inasmuch as:"... (d)eciding
whether a matter has in any measure been committed by the
Constitution to another branch of government, or whether the action of
that branch exceeds whatever authority has been committed, is itself a
delicate exercise in constitutional interpretation, and is a responsibility
of this Court as ultimate interpreter of the Constitution ... ."
Similarly, in Powell v. McCormack, 35 the same Court, speaking
through then Chief Justice Warren, reversed a decision of the Court of
Appeals of New York affirming that of a Federal District Court,
dismissing Powell's action for a declaratory judgment declaring
thereunder that he — whose qualifications were uncontested — had
been unlawfully excluded from the 90th Congress of the U.S. Said
dismissal was predicated upon the ground, inter alia, that the issue
was political, but the Federal Supreme Court held that it was clearly a
justiciable one.
The Supreme Court of Minnessota undertook a careful review of
American jurisprudence on the matter. Owing to the lucidity of its
appraisal thereof, We append the same to this opinion as Annex A
thereof.
After an, exhaustive analysis of the cases on this subject, the Court
concluded:
The authorities are thus practically uniform in holding that whether a
constitutional amendment has been properly adopted according to the
requirements of an existing Constitution is a judicial question. There
can be little doubt that the consensus of judicial opinion is to the effect
that it is the absolute duty of the judiciary to determine whether the
Constitution has been amended in the manner required by the
Constitution, unless a special tribunal has been created to determine
the question; and even then many of the courts hold that the tribunal
cannot be permitted to illegally amend the organic law. ... . 36
In the light of the foregoing, and considering that Art. XV of our 1935
Constitution prescribes the method or procedure for its amendment, it
is clear to my mind that the question whether or not the revised
Constitution drafted by the 1971 Constitutional Convention has been
ratified in accordance with said Art. XV is a justiciable one and non-
political in nature, and that it is not only subject to judicial inquiry, but,
also, that it is the Court's bounden duty to decide such question.
The Supreme Court of the United States has meaningfully postulated
that "the courts cannot reject as 'no law suit' " — because it allegedly
involves a political question — "a bona fide controversy as to whether
some action denominated "political" exceeds constitutional authority."
37
III
Has the proposed new or revised Constitution been ratified
conformably to said Art. XV of the 1935 Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that
the President "is without authority to create the Citizens' Assemblies"
through which, respondents maintain, the proposed new Constitution
has been ratified; that said Assemblies "are without power to approve
the proposed Constitution"; 3) that the President "is without power to
proclaim the ratification by the Filipino people of the proposed
Constitution"; and 4) that "the election held (in the Citizens'
73
Assemblies) to ratify the proposed Constitution was not a free election,
hence null and void."
Apart from substantially reiterating these grounds support of said
negative view, the petitioners in L-36164 contend: 1) that the President
"has no power to call a plebiscite for the ratification or rejection" of the
proposed new Constitution or "to appropriate funds for the holding of
the said plebiscite"; 2) that the proposed new or revised Constitution "is
vague and incomplete," as well as "contains provisions which are
beyond the powers of the 1971 Convention to enact," thereby
rendering it "unfit for ... submission the people;" 3) that "(t)he period of
time between November 1972 when the 1972 draft was approved and
January 11-15, 1973," when the Citizens' Assemblies supposedly
ratified said draft, "was too short, worse still, there was practically no
time for the Citizens' Assemblies to discuss the merits of the
Constitution which the majority of them have not read a which they
never knew would be submitted to them ratification until they were
asked the question — "do you approve of the New Constitution?"
during the said days of the voting"; and that "(t)here was altogether no
freedom discussion and no opportunity to concentrate on the matter
submitted to them when the 1972 draft was supposedly submitted to
the Citizens' Assemblies for ratification."
Petitioner in L-36236 added, as arguments in support of the negative
view, that : 1) "(w)ith a government-controlled press, there can never
be a fair and proper submission of the proposed Constitution to the
people"; and 2) Proclamation No. 1102 is null and void "(i)nasmuch as
the ratification process" prescribed "in the 1935 Constitution was not
followed."
Besides adopting substantially some of the grounds relied upon by the
petitioners in the above-mentioned cases, the petitioners in L-36283
argue that "(t)he creation of the Citizens' Assemblies as the vehicle for
the ratification of the Constitution was a deception upon the people
since the President announced the postponement of the January 15,
1973 plebiscite to either February 19 or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the
negative view have already been set forth earlier in this opinion.
Hence, it is unnecessary to reproduce them here. So it is, with respect
to the positions taken in L-36165 by counsel for therein respondents
Gil J. Puyat and Jose Roy — although more will be said later about
them — and by the Solicitor General, on behalf of the other
respondents in that case and the respondents in the other cases.
1. What is the procedure prescribed by the 1935 Constitution
for its amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are
essential, namely:
1. That the amendments to the Constitution be proposed either
by Congress or by a convention called for that purpose, "by a vote of
three-fourths of all the Members of the Senate and the House of
Representatives voting separately," but "in joint session assembled";
2. That such amendments be "submitted to the people for their
ratification" at an "election"; and
3. That such amendments be "approved by a majority of the
votes cast" in said election.
Compliance with the first requirement is virtually conceded, although
the petitioners in L-36164 question the authority of the 1971
Constitutional Convention to incorporate certain provisions into the
draft of the new or revised Constitution. The main issue in these five
(5) cases hinges, therefore, on whether or not the last two (2)
requirements have been complied with.
2. Has the contested draft of the new or revised Constitution
been submitted to the people for their ratification conformably to Art.
XV of the Constitution?
In this connection, other provisions of the 1935 Constitution concerning
"elections" must, also, be taken into account, namely, section I of Art. V
and Art. X of said Constitution. The former reads:
Section 1. Suffrage may be exercised by male citizens of the
Philippines not otherwise disqualified by law, who are twenty-one years
of age or over and are able to read and write, and who shall have
resided in the Philippines for one year and in the municipality wherein
they propose to vote for at least six months preceding the election. The
National Assembly shall extend the right of suffrage to women, if in a
plebiscite which shall be held for that purpose within two years after the
adoption of this Constitution, not less than three hundred thousand
women possessing the necessary qualifications shall vote affirmatively
on the question.
Sections 1 and 2 of Art. X of the Constitution ordain in part:
Section 1. There shall be an independent Commission on Elections
composed of a Chairman and two other Members to be appointed by
the President with the consent of the Commission on Appointments,
who shall hold office for a term of nine years and may not be
reappointed. ...
xxx xxx xxx
Sec. 2. The Commission on Elections shall have exclusive charge of
the enforcement and administration of all laws relative to the conduct of
elections and shall exercise all other functions which may be conferred
upon it by law. It shall decide, save those involving the right to vote, all
administrative questions, affecting elections, including the
determination of the number and location of polling places, and the
appointment of election inspectors and of other election officials. All
law enforcement agencies and instrumentalities of the Government,
when so required by the Commission, shall act as its deputies for the
purpose of insuring fee, orderly, and honest elections. The decisions,
orders, and rulings of the Commission shall be subject to review by the
Supreme Court.
xxx xxx xxx 39
a. Who may vote in a plebiscite under Art. V of the
Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a
limitation upon the exercise of the right of suffrage. They claim that no
other persons than "citizens of the Philippines not otherwise
disqualified by law, who are twenty-one years of age or over and are
able to read and write, and who shall have resided in the Philippines
for one year and in the municipality wherein they propose to vote for at
least six months preceding the election," may exercise the right of
suffrage in the Philippines. Upon the other hand, the Solicitor General
contends that said provision merely guarantees the right of suffrage to
persons possessing the aforementioned qualifications and none of the
disqualifications, prescribed by law, and that said right may be vested
by competent authorities in persons lacking some or all of the
aforementioned qualifications, and possessing some of the aforesaid
disqualifications. In support of this view, he invokes the permissive
nature of the language — "(s)uffrage may be exercised" — used in
section 1 of Art. V of the Constitution, and the provisions of the
Revised Barrio Charter, Republic Act No. 3590, particularly sections 4
and 6 thereof, providing that citizens of the Philippines "eighteen years
of age or over," who are registered in the list of barrio assembly
members, shall be members thereof and may participate as such in the
plebiscites prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the Constitution
declares who may exercise the right of suffrage, so that those lacking
the qualifications therein prescribed may not exercise such right. This
view is borne out by the records of the Constitutional Convention that
drafted the 1935 Constitution. Indeed, section 1 of Art. V of the 1935
Constitution was largely based on the report of the committee on
suffrage of the Convention that drafted said Constitution which report
was, in turn, "strongly influenced by the election laws then in force in
the Philippines ... ." 40 " Said committee had recommended: 1) "That
the right of suffrage should exercised only by male citizens of the
Philippines." 2) "That should be limited to those who could read and
write." 3) "That the duty to vote should be made obligatory." It appears
that the first recommendation was discussed extensively in the
Convention, and that, by way of compromise, it was eventually agreed
to include, in section 1 of Art. V of the Constitution, the second
sentence thereof imposing upon the National Assembly established by
the original Constitution — instead of the bicameral Congress
subsequently created by amendment said Constitution — the duty to
"extend the right of suffrage women, if in a plebiscite to, be held for that
purpose within two years after the adoption of this Constitution, not
less than three hundred thousand women possessing the necessary
qualifications shall vote affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also debated
upon rather extensively, after which it was rejected by the Convention.
42 This accounts, in my opinion, for the permissive language used in
the first sentence of said Art. V. Despite some debates on the age
qualification — amendment having been proposed to reduce the same
to 18 or 20, which were rejected, and the residence qualification, as
well as the disqualifications to the exercise of the right of suffrage —
the second recommendation limiting the right of suffrage to those who
could "read and write" was — in the language of Dr. Jose M. Aruego,
one of the Delegates to said Convention — "readily approved in the
Convention without any dissenting vote," although there was some
debate on whether the Fundamental Law should specify the language
or dialect that the voter could read and write, which was decided in the
negative. 43
What is relevant to the issue before Us is the fact that the constitutional
provision under consideration was meant to be and is a grant or
conferment of a right to persons possessing the qualifications and
none of the disqualifications therein mentioned, which in turn,
constitute a limitation of or restriction to said right, and cannot,
accordingly, be dispensed with, except by constitutional amendment.
Obviously, every such constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of any other
branch of the Government to deny said right to the subject of the grant
— and, in this sense only, may the same partake of the nature of a
74
guarantee. But, this does not imply not even remotely, that the
Fundamental Law allows Congress or anybody else to vest in those
lacking the qualifications and having the disqualifications mentioned in
the Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage
responsible for the adoption of section 1 of Art. V of the Constitution
was "strongly influenced by the election laws then in force in the
Philippines." Our first Election Law was Act 1582, passed on January
9, 1907, which was partly amended by Acts 1669, 1709, 1726 and
1768, and incorporated into the Administrative Code of 1916 — Act
2657 — as chapter 20 thereof, and then in the Administrative Code of
1917 — Act 2711 — as chapter 18 thereof, which, in turn, was
amended by Act 3387, approved on December 3, 1927. Sections 431
and 432 of said Code of 1917, prescribing, respectively, the
qualifications for and disqualifications from voting, are quoted below.
44 In all of these legislative acts, the provisions concerning the
qualifications of voters partook of the nature of a grant or recognition of
the right of suffrage, and, hence, of a denial thereof to those who
lacked the requisite qualification and possessed any of the statutory
disqualifications. In short, the history of section 1, Art. V of the
Constitution, shows beyond doubt than the same conferred — not
guaranteed — the authority to persons having the qualifications
prescribed therein and none of disqualifications to be specified in
ordinary laws and, necessary implication, denied such right to those
lacking any said qualifications, or having any of the aforementioned
disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional
Convention sought the submission to a plebiscite of a "partial
amendment" to said section 1 of Art. V of the 1935 Constitution, by
reducing the voting age from twenty-one (21) years to eighteen (18)
years, which, however, did not materialize on account of the decision
of this Court in Tolentino v. Commission on Elections, 45 granting the
writs, of prohibition and injunction therein applied for, upon the ground
that, under the Constitution, all of the amendments adopted by the
Convention should be submitted in "an election" or a single election,
not separately or in several or distinct elections, and that the proposed
amendment sought to be submitted to a plebiscite was not even a
complete amendment, but a "partial amendment" of said section 1,
which could be amended further, after its ratification, had the same
taken place, so that the aforementioned partial amendment was, for
legal purposes, no more than a provisional or temporary amendment.
Said partial amendment was predicated upon the generally accepted
contemporary construction that, under the 1935 Constitution, persons
below twenty-one (21) years of age could not exercise the right of
suffrage, without a previous amendment of the Constitution.
Upon the other hand, the question, whether 18-year-old members of
barrio assemblies may vote in barrio assembly plebiscites is, to say the
least, a debatable one. Indeed, there seems to be a conflict between
the last paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant
to which the "majority vote of all the barrio assembly members" (which
include all barrio residents 18 years of age or over, duly registered in
the list of barrio assembly members) is necessary for the approval, in
an assembly plebiscite, of "any budgetary, supplemental appropriations
or special tax ordinances," whereas, according to the paragraph
preceding the penultimate one of said section, 47 "(a)ll duly registered
barrio assembly members qualified to vote" — who, pursuant to section
10 of the same Act, must be citizens "of the Philippines, twenty-one
years of age or over, able to read and write," and residents the barrio
"during the six months immediately preceding election, duly registered
in the list of voters" and " otherwise disqualified ..." — just like the
provisions of present and past election codes of the Philippines and
Art. V of the 1935 Constitution — "may vote in the plebiscite."
I believe, however, that the apparent conflict should resolved in favor of
the 21-year-old members of the assembly, not only because this
interpretation is in accord with Art. V the Constitution, but, also,
because provisions of a Constitution — particularly of a written and
rigid one, like ours generally accorded a mandatory status — unless
the intention to the contrary is manifest, which is not so as regards said
Art. V — for otherwise they would not have been considered
sufficiently important to be included in the Fundamental Law of the
land. 48 Besides, it would be illogical, if not absurd, believe that
Republic Act No. 3590 requires, for the most important measures for
which it demands — in addition to favorable action of the barrio council
— the approval of barrio assembly through a plebiscite, lesser
qualifications than those prescribed in dealing with ordinary measures
for which such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935
Constitution intended section 1 of Art. V thereof to apply only to
elections of public officers, not to plebiscites for the ratification of
amendments to the Fundamental Law or revision thereof, or of an
entirely new Constitution, and permit the legislature to require lesser
qualifications for such ratification, notwithstanding the fact that the
object thereof much more important — if not fundamental, such as the
basic changes introduced in the draft of the revised Constitution
adopted by the 1971 Constitutional Convention, which a intended to be
in force permanently, or, at least, for many decades, and to affect the
way of life of the nation — and, accordingly, demands greater
experience and maturity on the part of the electorate than that required
for the election of public officers, 49 whose average term ranges from 2
to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years,
regardless of whether or not they possessed the other qualifications
laid down in both the Constitution and the present Election Code, 50
and of whether or not they are disqualified under the provisions of said
Constitution and Code, 51 or those of Republic Act No. 3590, 52 have
participated and voted in the Citizens' Assemblies that have allegedly
ratified the new or revised Constitution drafted by the 1971
Constitutional Convention.
In fact, according to the latest official data, the total number of
registered voters 21 years of age or over in the entire Philippines,
available in January 1973, was less than 12 million. Yet, Proclamation
No. 1102 states that 14,976,56 "members of all the Barangays
(Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against ... 743,869 who voted for its rejection,"
whereas, on the question whether or not the people still wanted a
plebiscite to be called to ratify the new Constitution, "... 14,298,814
answered that there was no need for a plebiscite and that the vote of
the Barangays (Citizens Assemblies) should be considered as a vote in
a plebiscite." In other words, it is conceded that the number of people
who allegedly voted at the Citizens' Assemblies for exceeded the
number of registered voters under the Election Code in force in
January 1973.
It is thus clear that the proceedings held in such Citizens' Assemblies
— and We have more to say on this point in subsequent pages —
were fundamentally irregular, in that persons lacking the qualifications
prescribed in section 1 of Art. V of the Constitution were allowed to
vote in said Assemblies. And, since there is no means by which the
invalid votes of those less than 21 years of age can be separated or
segregated from those of the qualified voters, the proceedings in the
Citizens' Assemblies must be considered null and void. 53
It has been held that "(t)he power to reject an entire poll ... should be
exercised ... in a case where it is impossible to ascertain with
reasonable certainty the true vote," as where "it is impossible to
separate the legal votes from the illegal or spurious ... ." 54
In Usman v. Commission on Elections, et al., 55 We held:
Several circumstances, defying exact description and dependent
mainly on the factual milieu of the particular controversy, have the
effect of destroying the integrity and authenticity of disputed election
returns and of avoiding their prima facie value and character. If
satisfactorily proven, although in a summary proceeding, such
circumstances as alleged by the affected or interested parties, stamp
the election returns with the indelible mark of falsity and irregularity,
and, consequently, of unreliability, and justify their exclusion from the
canvass.
Then, too, the 1935 Constitution requires "a majority of the votes cast"
for a proposed amendment to the Fundamental Law to be "valid" as
part thereof, and the term "votes cast" has a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville County
Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an
equivalent of "ballots cast." 56
The word "cast" is defined as "to deposit formally or officially." 57
It seems to us that a vote is cast when a ballot is deposited indicating a
"choice." ... The word "cast" means "deposit (a ballot) formally or
officially ... .
... In simple words, we would define a "vote cast" as the exercise on a
ballot of the choice of the voter on the measure proposed. 58
In short, said Art. XV envisages — with the term "votes cast" —
choices made on ballots — not orally or by raising — by the persons
taking part in plebiscites. This is but natural and logical, for, since the
early years of the American regime, we had adopted the Australian
Ballot System, with its major characteristics, namely, uniform official
ballots prepared and furnished by the Government and secrecy in the
voting, with the advantage of keeping records that permit judicial
inquiry, when necessary, into the accuracy of the election returns. And
the 1935 Constitution has been consistently interpreted in all
plebiscites for the ratification rejection of proposed amendments
thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens'
Assemblies was and is null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision
indispensable; essential requisites)
Just as essential as compliance with said Art. V of the 19 Constitution
is that of Art. X thereof, particularly its sections 1 and 2. Indeed, section
1 provides that "(t)here shall be an independent Commission on
Elections ... ." The point to be stressed here is the term "independent."
Indeed, why was the term used?
75
In the absence of said constitutional provision as to the independence
of the Commission, would it have been depends upon either Congress
or the Judiciary? The answer must be the negative, because the
functions of the Commission — "enforcement and administration" of
election laws — are neither legislative nor judicial in nature, and,
hence, beyond the field allocated to either Congress or courts of
justice. Said functions are by their nature essentially executive, for
which reason, the Commission would be under the "control" of the
President, pursuant to section 10, paragraph (1) of Art. VII of the
Constitution, if Art. X thereof did not explicitly declare that it (the
Commission) is an "independent" body. In other words, in amending
the original 1935 Constitution, by inserting therein said Art. X, on the
Commission on Elections, the purpose was to make said Commission
independent principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the
Commission on Elections as a constitutional organ, election laws in the
Philippines were enforced by the then Department of the Interior,
through its Executive Bureau, one of the offices under the supervision
and control of said Department. The same — like other departments of
the Executive Branch of the Government — was, in turn, under the
control of the Chief Executive, before the adoption of the 1935
Constitution, and had been — until the abolition of said Department,
sometime ago — under the control of the President of the Philippines,
since the effectivity of said Fundamental Law. Under the provisions
thereof, the Executive could so use his power of control over the
Department of the Interior and its Executive Bureau as to place the
minority party at such a great, if not decisive, disadvantage, as to
deprive it, in effect, of the opportunity to defeat the political party in
power, and, hence, to enable the same to perpetuate itself therein. To
forestall this possibility, the original 1935 Constitution was amended by
the establishment of the Commission on Elections as a constitutional
body independent primarily of the President of the Philippines.
The independence of the Commission was sought to be strengthened
by the long term of office of its members — nine (9) years, except
those first appointed 59 — the longest under the Constitution, second
only to that of the Auditor General 60; by providing that they may not
be removed from office except by impeachment, placing them, in this
respect, on the same plane as the President, the Vice-President, the
Justices of the Supreme Court and the Auditor General; that they may
not be reappointed; that their salaries, "shall be neither increased nor
diminished during their term of office"; that the decisions the
Commission "shall be subject to review by the Supreme Court" only 61;
that "(n)o pardon, parole, or suspension sentence for the violation of
any election law may be granted without the favorable
recommendation of the Commission"62; and, that its chairman and
members "shall not, during the continuance in office, engage in the
practice of any profession or intervene, directly or indirectly, in the
management or control of any private enterprise which in anyway may
affected by the functions of their office; nor shall they, directly or
indirectly, be financially interested in any contract with the Government
or any subdivision or instrumentality thereof." 63 Thus, the framers of
the amendment to the original Constitution of 1935 endeavored to do
everything possible protect and insure the independence of each
member of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X
ordains that "(t)he Commission on Elections shall have exclusive
charge of the enforcement and administration all laws relative to the
conduct of elections," apart from such other "functions which may be
conferred upon it by law." It further provides that the Commission "shall
decide, save those involving the right to vote, all administrative
question affecting elections, including the determination of the number
and location of polling places, and the appointment of election
inspectors and of other election officials." And, to forests possible
conflicts or frictions between the Commission, on one hand, and the
other offices or agencies of the executive department, on the other,
said section 2 postulates that "(a)ll law enforcement agencies and
instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring free,
orderly, and honest elections." Not satisfied with this, it declares, in
effect, that "(t)he decisions, orders, and ruling of the Commission" shall
not be subject to review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution,
Rep. Act No. 6388, otherwise known as the Election Code of 1971,
implements the constitutional powers of the Commission on Elections
and grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act
contains, inter alia, detailed provisions regulating contributions and
other (corrupt) practices; the establishment of election precincts; the
designation and arrangement of polling places, including voting booths,
to protect the secrecy of the ballot; formation of lists of voters, the
identification and registration of voters, the proceedings therefor, as
well as for the inclusion in, or exclusion or cancellation from said list
and the publication thereof; the establishment of municipal, provincial
and files of registered voters; the composition and appointment of
board of election inspectors; the particulars of the official ballots to be
used and the precautions to be taken to insure authenticity thereof; the
procedure for the casting of votes; the counting of votes by boards of
inspectors; the rules for the appreciation of ballots and the preparation
and disposition of election returns; the constitution and operation of
municipal, provincials and national boards of canvassers; the
presentation of the political parties and/or their candidates in each
election precinct; the proclamation of the results, including, in the case
of election of public officers, election contests; and the jurisdiction of
courts of justice in cases of violation of the provisions of said Election
Code and the penalties for such violations.
Few laws may be found with such meticulous and elaborate set of
provisions aimed at "insuring free, orderly, and honest election," as
envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the
so-called Barangays or Citizens' Assemblies. And no reasons have
been given, or even sought to be given therefor. In many, if not most,
instances, the election were held a viva voce, thus depriving the
electorate of the right to vote secretly — one of the most, fundamental
and critical features of our election laws from time immemorial —
particularly at a time when the same was of utmost importance, owing
to the existence of Martial Law.
In Glen v. Gnau, 65 involving the casting of many votes, openly,
without complying with the requirements of the law pertinent thereto, it
was held that the "election officers" involved "cannot be too strongly
condemned" therefor and that if they "could legally dispense with such
requirement ... they could with equal propriety dispense with all of
them, including the one that the vote shall be by secret ballot, or even
by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the
proposed Constitution drafted by the 1971 Constitutional Convention,
or on December 1, 1972, Presidential Decree No. 73 (on the validity of
which — which was contested in the plebiscite cases, as well as in the
1972 habeas corpus cases 66 — We need not, in the case of bar,
express any opinion) was issued, calling a plebiscite, to be held on
January 15, 1973, at which the proposed Constitution would be
submitted to the people for ratification or rejection; directing the
publication of said proposed Constitution; and declaring, inter alia, that
"(t)he provision of the Election Code of 1971, insofar as they are not
inconsistent" with said decree — excepting those "regarding right and
obligations of political parties and candidates" — "shall apply to the
conduct of the plebiscite." Indeed, section 2 of said Election Code of
1971 provides that "(a)ll elections of public officers except barrio
officials and plebiscites shall be conducted in the manner provided by
this Code." General Order No. 20, dated January 7, 1973, postponing
until further notice, "the plebiscite scheduled to be held on January 15,
1973," said nothing about the procedure to be followed in plebiscite to
take place at such notice, and no other order or decree has been
brought to Our attention, expressly or impliedly repealing the provisions
of Presidential Decree 73, insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended
"the provisions of Section 3 of Presidential Decree No. 73 insofar as
they allow free public discussion of proposed Constitution ...
temporarily suspending effects of Proclamation No. 1081 for the
purposes of free open dabate on the proposed Constitution ... ." This
specific mention of the portions of the decrees or orders or instructions
suspended by General Order No. 20 necessarily implies that all other
portions of said decrees, orders or instructions — and, hence, the
provisions of Presidential Decree No. 73 outlining the procedure to be
followed in the plebiscite for ratification or rejection of the proposed
Constitution — remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A — the text
of which is quoted below 67 — the Executive declared, inter alia, that
the collective views expressed in the Citizens' Assemblies "shall be
considered in the formulation of national policies or programs and,
wherever practicable, shall be translated into concrete and specific
decision"; that such Citizens' Assemblies "shall consider vital national
issues ... like the holding of the plebiscite on the new Constitution ...
and others in the future, which shall serve as guide or basis for action
or decision by the national government"; and that the Citizens'
Assemblies "shall conduct between January 10 and 15, 1973, a
referendum on important national issues, including those specified in
paragraph 2 hereof, and submit the results thereof to the Department
of Local Governments and Community Development immediately
thereafter, ... ." As in Presidential Decree No. 86, this Decree No. 86-A
does not and cannot exclude the exercise of the constitutional
supervisory power of the Commission on Elections or its participation
in the proceedings in said Assemblies, if the same had been intended
to constitute the "election" or Plebiscite required Art. V of the 1935
Constitution. The provision of Decree No. 86-A directing the immediate
submission of the result thereof to the Department of Local
Governments Community Development is not necessarily inconsistent
with, and must be subordinate to the constitutional power of the
Commission on Elections to exercise its "exclusive authority over the
enforcement and administration of all laws to the conduct of elections,"
if the proceedings in the Assemblies would partake of the nature of an
"election" or plebiscite for the ratification or rejection of the proposed
Constitution.
We are told that Presidential Decree No. 86 was further amended by
Presidential Decree No. 86-B, dated 1973, ordering "that important
national issues shall from time to time; be referred to the Barangays
76
(Citizens Assemblies) for resolution in accordance with Presidential
Decree No. 86-A dated January 5, 1973 and that the initial referendum
include the matter of ratification of the Constitution by the 1971
Constitutional Convention" and that "(t)he Secretary of the Department
of Local Governments and Community Development shall insure the
implementation of this order." As in the case of Presidential Decrees
Nos. 86 and 86-A, the foregoing directives do not necessarily exclude
exercise of the powers vested by the 1935 Constitution in the
Commission on Elections, even if the Executive had the authority to
repeal Art. X of our Fundamental Law — which he does not possess.
Copy of Presidential Decree No. 86-B is appended hereto as Annex B
hereof.
The point is that, such of the Barrio Assemblies as were held took
place without the intervention of the Commission on Elections, and
without complying with the provisions of the Election Code of 1971 or
even of those of Presidential Decree No. 73. What is more, they were
held under the supervision of the very officers and agencies of the
Executive Department sought to be excluded therefrom by Art. X of the
1935 Constitution. Worse still, said officers and agencies of the 1935
Constitution would be favored thereby, owing to the practical indefinite
extension of their respective terms of office in consequence of section
9 of the Transitory Provisions, found in Art. XVII of the proposed
Constitution, without any elections therefor. And the procedure therein
mostly followed is such that there is no reasonable means of checking
the accuracy of the returns files by the officers who conducted said
plebiscites. This is another patent violation of Art. of the Constitution
which can hardly be sanctioned. And, since the provisions of this article
form part of the fundamental scheme set forth in the 1935 Constitution,
as amended, to insure the "free, orderly, and honest" expression of the
people's will, the aforementioned violation thereof renders null and void
the contested proceedings or alleged plebiscite in the Citizens'
Assemblies, insofar as the same are claimed to have ratified the
revised Constitution proposed by the 1971 Constitutional Convention.
"... (a)ll the authorities agree that the legal definition of an election, as
well as that which is usually and ordinarily understood by the term, is a
choosing or as election by those having a right to participate (in the
selection) of those who shall fill the offices, or of the adoption or
rejection of any public measure affecting the territory involved. 15 Cyc.
279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v.
Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W.
1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9
L.R.A. 170; Bouvier's Law Dictionary. 68
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No.
1102, the validity of which is precisely being contested by petitioners
herein. Respondents claim that said proclamation is "conclusive" upon
this Court, or is, at least, entitled to full faith and credence, as an
enrolled bill; that the proposed Constitution has been, in fact, ratified,
approved or adopted by the "overwhelming" majority of the people; that
Art. XV of the 1935 Constitution has thus been "substancially"
complied with; and that the Court refrain from passing upon the validity
of Proclamation No. 1102, not only because such question is political in
nature, but, also, because should the Court invalidate the
proclamation, the former would, in effect, veto the action of the people
in whom sovereignty resides and from its power are derived.
The major flaw in this process of rationalization is that it assumes, as a
fact, the very premise on which it is predicated, and which, moreover,
is contested by the petitioners. As the Supreme Court of Minnessota
has aptly put it —
... every officer under a constitutional government must act according
to law and subject to its restrictions, and every departure therefrom or
disregard thereof must subject him to the restraining and controlling of
the people, acting through the agency of the judiciary; for it must be
remembered that the people act through courts, as well as through the
executive or the Legislature. One department is just as representative
as the other, and the judiciary is the department which is charged with
the special duty of determining the limitations which the law places
upon all official action. ... .
Accordingly, the issue boils downs to whether or not the Executive
acted within the limits of his authority when he certified in Proclamation
No. 1102 "that the Constitution proposed by the nineteen hundred and
seventy-one (1971) Constitutional Convention has been ratified by an
overwhelming majority of all of the votes cast by the members of all the
Barangays (Citizens Assemblies) throughout the Philippines and has
thereby come into effect."
In this connection, it is not claimed that the Chief Executive had
personal knowledge of the data he certified in said proclamation.
Moreover, Art. X of the 1935 Constitution was precisely inserted to
place beyond the Executive the power to supervise or even exercise
any authority whatsoever over "all laws relative to the conduct of
elections," and, hence, whether the elections are for the choice or
selection of public officers or for the ratification or rejection of any
proposed amendment, or revision of the Fundamental Law, since the
proceedings for the latter are, also, referred to in said Art. XV as
"elections".
The Solicitor General stated, in his argument before this Court, that he
had been informed that there was in each municipality a municipal
association of presidents of the citizens' assemblies for each barrio of
the municipality; that the president of each such municipal association
formed part of a provincial or city association of presidents of such
municipal associations; that the president of each one of these
provincial or city associations in turn formed part of a National
Association or Federation of Presidents of such Provincial or City
Associations; and that one Francisco Cruz from Pasig, Rizal, as
President of said National Association or Federation, reported to the
President of the Philippines, in the morning of January 17, 1973, the
total result of the voting in the citizens' assemblies all over the country
from January 10 to January 15, 1973. The Solicitor General further
intimated that the said municipal associations had reported the results
of the citizens' assemblies in their respective municipalities to the
corresponding Provincial Association, which, in turn, transmitted the
results of the voting in the to the Department of Local Governments
and Community Development, which tabulated the results of the voting
in the citizens' assemblies throughout the Philippines and then turned
them over to Mr. Franciso Cruz, as President or acting President of the
National Association or Federation, whereupon Mr. Cruz, acting in a
ceremonial capacity, reported said results (tabulated by the
Department of Governments and Community Development) to the
Chief Executive, who, accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of
any barrio council since 1972, so that he could possibly have been a
member on January 17, 1973, of a municipal association of presidents
of barrio or ward citizens' assemblies, much less of a Provincial, City or
National Association or Federation of Presidents of any such provincial
or city associations.
Secondly, at the conclusion of the hearing of these cases February 16,
1973, and in the resolution of this Court of same date, the Solicitor
General was asked to submit, together with his notes on his oral
argument, a true copy of aforementioned report of Mr. Cruz to the
President and of "(p)roclamation, decree, instruction, order, regulation
or circular, if any, creating or directing or authorizing creation,
establishment or organization" of said municipal, provincial and
national associations, but neither a copy of alleged report to the
President, nor a copy of any "(p)roclamation, decree, instruction, order,
regulation or circular," has been submitted to this Court. In the absence
of said report, "(p)roclamation, decree, instruction," etc., Proclamation
No. 1102 is devoid of any factual and legal foundation. Hence, the
conclusion set forth in the dispositive portion of said Proclamation No.
1102, to the effect that the proposed new or revised Constitution had
been ratified by majority of the votes cast by the people, can not
possibly have any legal effect or value.
The theory that said proclamation is "conclusive upon Court is clearly
untenable. If it were, acts of the Executive and those of Congress could
not possibly be annulled or invalidated by courts of justice. Yet, such is
not the case. In fact, even a resolution of Congress declaring that a
given person has been elected President or Vice-President of the
Philippines as provided in the Constitution, 69 is not conclusive upon
the courts. It is no more than prima facie evidence of what is attested
to by said resolution. 70 If assailed directly in appropriate proceedings,
such as an election protest, if and when authorized by law, as it is in
the Philippines, the Court may receive evidence and declare, in
accordance therewith, who was duly elected to the office involved. 71 If
prior to the creation of the Presidential Electoral Tribunal, no such
protest could be filed, it was not because the resolution of Congress
declaring who had been elected President or Vice-President was
conclusive upon courts of justice, but because there was no law
permitting the filing of such protest and declaring what court or body
would hear and decide the same. So, too, a declaration to the effect
that a given amendment to the Constitution or revised or new
Constitution has been ratified by a majority of the votes cast therefor,
may be duly assailed in court and be the object of judicial inquiry, in
direct proceedings therefor — such as the cases at bar — and the
issue raised therein may and should be decided in accordance with the
evidence presented.
The case of In re McConaughy 72 is squarely in point. "As the
Constitution stood from the organization of the state" — of Minnessota
— "all taxes were required to be raised under the system known as the
'general property tax.' Dissatisfaction with the results of this method
and the development of more scientific and satisfactory methods of
raising revenue induced the Legislature to submit to the people an
amendment to the Constitution which provided merely that taxes shall
be uniform upon the same class of subjects. This proposed
amendment was submitted at the general election held in November,
1906, and in due time it was certified by the state canvassing board
and proclaimed by the Governor as having been legally adopted.
Acting upon the assumption that the amendment had become a part of
the Constitution, the Legislature enacted statutes providing for a State
Tax Commission and a mortgage registry tax, and the latter statute,
upon the same theory, was held constitutional" by said Court. "The
77
district court found that the amendment had no in fact been adopted,
and on this appeal" the Supreme Court was "required to determine the
correctness of that conclusion."
Referring to the effect of the certification of the State Board of
Canvassers created by the Legislature and of the proclamation made
by the Governor based thereon, the Court held: "It will be noted that
this board does no more than tabulate the reports received from the
various county board and add up and certify the results. State v.
Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled
law that the decisions of election officers, and canvassing boards are
not conclusive and that the final decision must rest with the courts,
unless the law declares that the decisions of the board shall be final" —
and there is no such law in the cases at bar. "... The correctness of the
conclusion of the state board rests upon the correctness of the returns
made by the county boards and it is inconceivable that it was intended
that this statement of result should be final and conclusive regardless
of the actual facts. The proclamation of the Governor adds nothing in
the way of conclusiveness to the legal effect of the action of the
canvassing board. Its purpose is to formally notify the people of the
state of the result of the voting as found by the canvassing board.
James on Const. Conv. (4th Ed.) sec. 523."
In Bott v. Wartz, 73 the Court reviewed the statement of results of the
election made by the canvassing board, in order that the true results
could be judicially determined. And so did the court in Rice v. Palmer.
74
Inasmuch as Art. X of the 1935 Constitution places under the
"exclusive" charge of the Commission on Elections, "the enforcement
and administration of all laws relative to the conduct of elections,"
independently of the Executive, and there is not even a certification by
the Commission in support of the alleged results of the citizens'
assemblies relied upon in Proclamation No. 1102 — apart from the fact
that on January 17, 1973 neither the alleged president of the
Federation of Provincial or City Barangays nor the Department of Local
Governments had certified to the President the alleged result of the
citizens' assemblies all over the Philippines — it follows necessarily
that, from a constitutional and legal viewpoint, Proclamation No. 1102
is not even prima facie evidence of the alleged ratification of the
proposed Constitution.
Referring particularly to the cases before Us, it will be noted that, as
pointed out in the discussion of the preceding topic, the new or revised
Constitution proposed by the 1971 Constitutional Convention was not
ratified in accordance with the provisions of the 1935 Constitution. In
fact, it has not even been, ratified in accordance with said proposed
Constitution, the minimum age requirement therein for the exercise of
the right of suffrage being eighteen (18) years, apart from the fact that
Art. VI of the proposed Constitution requires "secret" voting, which was
not observed in many, if not most, Citizens' Assemblies. Besides, both
the 1935 Constitution and the proposed Constitution require a "majority
of the votes cast" in an election or plebiscite called for the ratification of
an amendment or revision of the first Constitution or the effectivity of
the proposed Constitution, and the phrase "votes cast" has been
construed to mean "votes made in writing not orally, as it was in many
Citizens' Assemblies. 75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-
36165, asserts openly that Art. XV of the Constitution has not been
complied with, and since the alleged substantial compliance with the
requirements thereof partakes of the nature of a defense set up by the
other respondents in these cases, the burden of proving such defense
— which, if true, should be within their peculiar knowledge — is clearly
on such respondents. Accordingly, if despite the extensive notes and
documents submitted by the parties herein, the members of the Court
do not know or are not prepared to say whether or not the majority of
the people or of those who took part in the Citizens' Assemblies have
assented to the proposed Constitution, the logical step would be to
give due course to these cases, require the respondents to file their
answers, and the plaintiffs their reply, and, thereafter, to receive the
pertinent evidence and then proceed to the determination of the issues
raised thereby. Otherwise, we would be placing upon the petitioners
the burden of disproving a defense set up by the respondents, who
have not so far established the truth of such defense.
Even more important, and decisive, than the foregoing is the
circumstance that there is ample reason to believe that many, if not
most, of the people did not know that the Citizens' Assemblies were, at
the time they were held, plebiscites for the ratification or rejection of the
proposed Constitution. Hence, in Our decision in the plebiscite cases,
We said, inter alia:
Meanwhile, or on December 17, 1972, the President had issued an
order temporarily suspending the effects of Proclamation No. 1081, for
the purpose of free and open debate on the Proposed Constitution. On
December 23, the President announced the postponement of the
plebiscite for the ratification or rejection of the Proposed Constitution.
No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite
scheduled to be held on January 15, 1973, be postponed until further
notice." Said General Order No. 20, moreover, "suspended in the
meantime" the "order of December 17, 1972, temporarily suspending
the effects of Proclamation No. 1081 for purposes of free and open
debate on the proposed Constitution.
In view of these events relative to the postponement of the
aforementioned plebiscite, the Court deemed it fit to refrain, for the
time being, from deciding the aforementioned cases, for neither the
date nor the conditions under which said plebiscite would be held were
known or announced officially. Then again, Congress was, pursuant to
the 1935 Constitution, scheduled to meet in regular session on January
22, 1973, and since the main objection to Presidential Decree No. 73
was that the President does not have the legislative authority to call a
plebiscite and appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the formal
postponement of the plebiscite by the President — reportedly after
consultation with, among others, the leaders of Congress and the
Commission on Elections — the Court deemed it more imperative to
defer its final action on these cases.
And, apparently, the parties in said cases entertained the same belief,
for, on December 23, 1972 — four (4) days after the last hearing of
said cases 76 — the President announced the postponement of the
plebiscite scheduled by Presidential Decree No. 73 to be held on
January 15, 1973, after consultation with the Commission on Elections
and the leaders of Congress, owing to doubts on the sufficiency of the
time available to translate the proposed Constitution into some local
dialects and to comply with some pre-electoral requirements, as well
as to afford the people a reasonable opportunity to be posted on the
contents and implications of said transcendental document. On
January 7, 1973, General Order No. 20 was issued formally,
postponing said plebiscite "until further notice." How can said
postponement be reconciled with the theory that the proceedings in the
Citizens' Assemblies scheduled to be held from January 10 to January
15, 1973, were "plebiscites," in effect, accelerated, according to the
theory of the Solicitor General, for the ratification of the proposed
Constitution? If said Assemblies were meant to be the plebiscites or
elections envisaged in Art. XV of the Constitution, what, then, was the
"plebiscite" postponed by General Order No. 20? Under these
circumstances, it was only reasonable for the people who attended
such assemblies to believe that the same were not an "election" or
plebiscite for the ratification or adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in
the Citizens' Assemblies, namely:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos is running the affairs
of the government? [Bulletin Today, January 10, 1973; emphasis an
additional question.]
[6] Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new
Constitution?
[9] Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
[10] If the elections would not be held, when do you want the next
elections to be called?
[11] Do you want martial law to continue? [Bulletin Today,
January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not
proper in a plebiscite for the ratification of a proposed Constitution or of
a proposed amendment thereto. Secondly, neither is the language of
question No. 7 — "Do you approve the new Constitution?" One
approves "of" the act of another which does not need such approval for
the effectivity of said act, which the first person, however, finds to be
good, wise satisfactory. The approval of the majority of the votes cast
in plebiscite is, however, essential for an amendment to the
Constitution to be valid as part thereof. Thirdly, if the proceedings in
the Citizens' Assemblies constituted a plebiscite question No. 8 would
have been unnecessary and improper, regardless of whether question
No. 7 were answered affirmatively or negatively. If the majority of the
answers to question No. 7 were in the affirmative, the proposed
Constitution would have become effective and no other plebiscite could
be held thereafter in connection therewith, even if the majority of the
answers to question No. 8 were, also, in the affirmative. If the majority
of the answers to question No. 7 were in the negative, neither may
another plebiscite be held, even if the majority of the answers to
question No. 8 were in the affirmative. In either case, not more than
one plebiscite could be held for the ratification or rejection of the
78
proposed Constitution. In short, the insertion of said two (2) questions
— apart from the other questions adverted to above — indicates
strongly that the proceedings therein did not partake of the nature of a
plebiscite or election for the ratification or rejection of the proposed
Constitution.
Indeed, I can not, in good conscience, declare that the proposed
Constitution has been approved or adopted by the people in the
citizens' assemblies all over the Philippines, when it is, to my mind, a
matter of judicial knowledge that there have been no such citizens'
assemblies in many parts of Manila and suburbs, not to say, also, in
other parts of the Philippines. In a letter of Governor Efren B. Pascual
of Bataan, dated January 15, 1973, to the Chief Executive, the former
reported:
... This report includes a resumee (sic) of the activities we undertook in
effecting the referendum on the eleven questions you wanted our
people consulted on and the Summary of Results thereof for each
municipality and for the whole province.
xxx xxx xxx
... Our initial plans and preparations, however, dealt only on the original
five questions. Consequently, when we received an instruction on
January 10 to change the questions, we urgently suspended all
scheduled Citizens Assembly meetings on that day and called all
Mayors, Chiefs of Offices and other government officials to another
conference to discuss with them the new set of guidelines and
materials to be used.
On January 11, ... another instruction from the top was received to
include the original five questions among those to be discussed and
asked in the Citizens' Assembly meetings. With this latest order, we
again had to make modifications in our instructions to all those
managing and supervising the holding of the Citizens' Assembly
meetings throughout the province. ... Aside from the coordinators we
had from the Office of the Governor, the splendid cooperation and
support extended by almost all government officials and employees in
the province, particularly of the Department of Education, PC and
PACD personnel, provided us with enough hands to trouble shoot and
implement sudden changes in the instructions anytime and anywhere
needed. ...
... As to our people, in general, their enthusiastic participation showed
their preference and readiness to accept this new method of
government to people consultation in shaping up government policies.
Thus, as late as January 10, 1973, the Bataan officials had to suspend
"all scheduled Citizens' Assembly meetings ..." and call all available
officials "... to discuss with them the new set of guidelines and
materials to be used ... ." Then, "on January 11 ... another instruction
from the top was received to include the original five questions among
those be discussed and asked in the Citizens' Assembly meetings.
With this latest order, we again had to make modifications in our
instructions to all those managing and supervising holding of the
Citizens' Assembly meetings throughout province. ... As to our people,
in general, their enthusiastic participation showed their preference and
readiness to accept the new method of government to people
consultation in shaping up government policies."
This communication manifestly shows: 1) that, as late a January 11,
1973, the Bataan officials had still to discuss — not put into operation
— means and ways to carry out the changing instructions from the top
on how to organize the citizens' assemblies, what to do therein and
even what questions or topics to propound or touch in said assemblies;
2) that the assemblies would involve no more than consultations or
dialogues between people and government — not decisions be made
by the people; and 3) that said consultations were aimed only at
"shaping up government policies" and, hence could not, and did not,
partake of the nature of a plebiscite for the ratification or rejection of a
proposed amendment of a new or revised Constitution for the latter
does not entail the formulation of a policy of the Government, but the
making of decision by the people on the new way of life, as a nation,
they wish to have, once the proposed Constitution shall have been
ratified.
If this was the situation in Bataan — one of the provinces nearest to
Manila — as late as January 11, 1973, one can easily imagine the
predicament of the local officials and people in the remote barrios in
northern and southern Luzon, in the Bicol region, in the Visayan
Islands and Mindanao. In fact, several members of the Court, including
those of their immediate families and their household, although duly
registered voters in the area of Greater Manila, were not even notified
that citizens' assemblies would be held in the places where their
respective residences were located. In the Prohibition and Amendment
case, 77 attention was called to the "duty cast upon the court of taking
judicial cognizance of anything affecting the existence and validity of
any law or portion of the
Constitution ... ." In line with its own pronouncement in another case,
the Federal Supreme Court of the United States stressed, in Baker v.
Carr, 78 that "a court is not at liberty to shut its eyes to an obvious
mistake, when the validity of the law depends upon the truth of what is
declared."

In the light of the foregoing, I cannot see how the question under
consideration can be answered or resolved otherwise than in the
negative.
V 5.
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and
has been run, since January 17, 1971, under the Constitution drafted
by the 1971 Constitutional Convention; that the political department of
the Government has recognized said revised Constitution; that our
foreign relations are being conducted under such new or revised
Constitution; that the Legislative Department has recognized the same;
and that the people, in general, have, by their acts or omissions,
indicated their conformity thereto.
As regards the so-called political organs of the Government, gather
that respondents refer mainly to the offices under the Executive
Department. In a sense, the latter performs some functions which, from
a constitutional viewpoint, are politics in nature, such as in recognizing
a new state or government, in accepting diplomatic representatives
accredited to our Government, and even in devising administrative
means and ways to better carry into effect. Acts of Congress which
define the goals or objectives thereof, but are either imprecise or silent
on the particular measures to be resorted to in order to achieve the
said goals or delegate the power to do so, expressly or impliedly, to the
Executive. This, notwithstanding, the political organ of a government
that purports to be republican is essentially the Congress or Legislative
Department. Whatever may be the functions allocated to the Executive
Department — specially under a written, rigid Constitution with a
republican system of Government like ours — the role of that
Department is inherently, basically and fundamentally executive in
nature — to "take care that the laws be faithfully executed," in the
language of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts the officers
and offices of the Executive Department, in line with Proclamation No.
1102, connote a recognition thereof o an acquiescence thereto.
Whether they recognized the proposed Constitution or acquiesce
thereto or not is something that cannot legally, much less necessarily
or even normally, be deduced from their acts in accordance therewith,
because the are bound to obey and act in conformity with the orders of
the President, under whose "control" they are, pursuant to the 1935
Constitution. They have absolutely no other choice, specially in view of
Proclamation No. 1081 placing the Philippines under Martial Law.
Besides, by virtue of the very decrees, orders and instructions issued
by the President thereafter, he had assumed all powers of Government
— although some question his authority to do so — and, consequently,
there is hardly anything he has done since the issuance of
Proclamation No. 1102, on January 17, 1973 — declaring that the
Constitution proposed by the 1971 Constitutional Convention has been
ratified by the overwhelming majority of the people — that he could not
do under the authority he claimed to have under Martial Law, since
September 21, 1972, except the power of supervision over inferior
courts and its personnel, which said proposed Constitution would place
under the Supreme Court, and which the President has not ostensibly
exercised, except as to some minor routine matters, which the
Department of Justice has continued to handle, this Court having
preferred to maintain the status quo in connection therewith pending
final determination of these cases, in which the effectivity of the
aforementioned Constitution is disputed.
Then, again, a given department of the Government cannot generally
be said to have "recognized" its own acts. Recognition normally
connotes the acknowledgment by a party of the acts of another.
Accordingly, when a subordinate officer or office of the Government
complies with the commands of a superior officer or office, under
whose supervision and control he or it is, the former merely obeys the
latter. Strictly speaking, and from a legal and constitutional viewpoint,
there is no act of recognition involved therein. Indeed, the lower officer
or office, if he or it acted otherwise, would just be guilty of
insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 80 — cited by
respondents herein in support of the theory of the people's
acquiescence — involved a constitution ordained in 1902 and
"proclaimed by a convention duly called by a direct vote of the people
of the state to revise and amend the Constitution of 1869. The result of
the work of that Convention has been recognized, accepted and acted
upon as the only valid Constitution of the State" by —
1. The "Governor of the State in swearing fidelity to it and
proclaiming it, as directed thereby";
2. The "Legislature in its formal official act adopting a joint
resolution, July 15, 1902, recognizing the Constitution ordained by the
Convention ...";
3. The "individual oaths of its members to support it, and by its
having been engaged for nearly a year, in legislating under it and
putting its provisions into
79
operation ...";
4. The "judiciary in taking the oath prescribed thereby to
support it and by enforcing its provisions ..."; and
The "people in their primary capacity by peacefully accepting
it and acquiescing in it, by registering as voters under it to the extent of
thousands throughout the State, and by voting, under its provisions, at
a general election for their representatives in the Congress of the
United States."
Note that the New Constitution of Virginia, drafted by a convention
whose members were elected directly by the people, was not
submitted to the people for ratification or rejection thereof. But, it was
recognized, not by the convention itself, but by other sectors of the
Government, namely, the Governor; the Legislature — not merely by
individual acts of its members, but by formal joint resolution of its two
(2) chambers; by the judiciary; and by the people, in the various ways
specified above. What is more, there was no martial law. In the present
cases, none of the foregoing acts of acquiescence was present. Worse
still, there is martial law, the strict enforcement of which was
announced shortly before the alleged citizens' assemblies. To top it all,
in the Taylor case, the effectivity of the contested amendment was not
contested judicially until about one (1) year after the amendment had
been put into operation in all branches of the Government, and
complied with by the people who participated in the elections held
pursuant to the provisions of the new Constitution. In the cases under
consideration, the legality of Presidential Decree No. 73 calling a
plebiscite to be held on January 15, 1973, was impugned as early as
December 7, 1972, or five (5) weeks before the scheduled plebiscite,
whereas the validity of Proclamation No. 1102 declaring on January
17, 1973, that the proposed Constitution had been ratified — despite
General Order No. 20, issued on January 7, 1972, formally and
officially suspending the plebiscite until further notice — was impugned
as early as January 20, 1973, when L-36142 was filed, or three (3)
days after the issuance of Proclamation No. 1102.
It is further alleged that a majority of the members of our House of
Representatives and Senate have acquiesced in the new or revised
Constitution, by filing written statements opting to serve in the Ad
Interim Assembly established in the Transitory Provisions of said
Constitution. Individual acts of recognition by members of our
legislature, as well as of other collegiate bodies under the government,
are invalid as acts of said legislature or bodies, unless its members
have performed said acts in session duly assembled, or unless the law
provides otherwise, and there is no such law in the Philippines. This is
a well-established principle of Administrative Law and of the Law of
Public Officers, and no plausible reason has been adduced to warrant
departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the
proposed Constitution, why did it become necessary to padlock its
premises to prevent its meeting in session on January 22, 1973, and
thereafter as provided in the 1935 Constitution? It is true that,
theoretically, the members of Congress, if bent on discharging their
functions under said Constitution, could have met in any other place,
the building in which they perform their duties being immaterial to the
legality of their official acts. The force of this argument is, however,
offset or dissipated by the fact that, on or about December 27, 1972,
immediately after a conference between the Executive, on the one
hand, and members of Congress, on the other, some of whom
expressed the wish to meet in session on January 22, 1973, as
provided in the 1935 Constitution, a Daily Express columnist (Primitivo
Mijares) attributed to Presidential Assistant Guillermo de Vega a
statement to the effect that "'certain members of the Senate appear to
be missing the point in issue' when they reportedly insisted on taking
up first the question of convening Congress." The Daily Express of that
date, 82 likewise, headlined, on its front page, a "Senatorial Plot
Against 'Martial Law Government' Disclosed". Then, in its issue of
December 29, 1972, the same paper imputed to the Executive an
appeal "to diverse groups involved in a conspiracy to undermine" his
powers" under martial law to desist from provoking a constitutional
crisis ... which may result in the exercise by me of authority I have not
exercised."
No matter how good the intention behind these statement may have
been, the idea implied therein was too clear an ominous for any
member of Congress who thought of organizing, holding or taking part
in a session of Congress, not to get the impression that he could hardly
do so without inviting or risking the application of Martial Law to him.
Under these conditions, I do not feel justified in holding that the failure
of the members of Congress to meet since January 22, 1973, was due
to their recognition, acquiescence in or conformity with the provisions
of the aforementioned Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081,
placing the entire Philippines under Martial Law, neither am I prepared
to declare that the people's inaction as regards Proclamation No. 1102,
and their compliance with a number of Presidential orders, decrees
and/or instructions — some or many of which have admittedly had
salutary effects — issued subsequently thereto amounts, constitutes or
attests to a ratification, adoption or approval of said Proclamation No.
1102. In the words of the Chief Executive, "martial law connotes power
of the gun, meant coercion by the military, and compulsion and
intimidation." 83 The failure to use the gun against those who comply
with the orders of the party wielding the weapon does not detract from
the intimidation that Martial Law necessarily connotes. It may reflect
the good, reasonable and wholesome attitude of the person who has
the gun, either pointed at others, without pulling the trigger, or merely
kept in its holster, but not without warning that he may or would use it if
he deemed it necessary. Still, the intimidation is there, and inaction or
obedience of the people, under these conditions, is not necessarily an
act of conformity or acquiescence. This is specially so when we
consider that the masses are, by and large, unfamiliar with the
parliamentary system, the new form of government introduced in the
proposed Constitution, with the particularity that it is not even identical
to that existing in England and other parts of the world, and that even
experienced lawyers and social scientists find it difficult to grasp the full
implications of some provisions incorporated therein.
As regards the applicability to these cases of the "enrolled bill" rule, it is
well to remember that the same refers to a document certified to the
President — for his action under the Constitution — by the Senate
President and the Speaker of the House of Representatives, and
attested to by the Secretary of the Senate and the Secretary of the
House of Representatives, concerning legislative measures approved
by the two Houses of Congress. The argument of the Solicitor General
is, roughly, this: If the enrolled bill is entitled to full faith and credence
and, to this extent, it is conclusive upon the President and the judicial
branch of the Government, why should Proclamation No. 1102 merit
less consideration than in enrolled bill?
Before answering this question, I would like to ask the following: If,
instead of being certified by the aforementioned officers of Congress,
the so-called enrolled bill were certified by, say, the President of the
Association of Sugar Planters and/or Millers of the Philippines, and the
measure in question were a proposed legislation concerning Sugar
Plantations and Mills sponsored by said Association, which even
prepared the draft of said legislation, as well as lobbied actually for its
approval, for which reason the officers of the Association, particularly,
its aforementioned president — whose honesty and integrity are
unquestionable — were present at the deliberations in Congress when
the same approved the proposed legislation, would the enrolled bill rule
apply thereto? Surely, the answer would have to be in the negative.
Why? Simply, because said Association President has absolutely no
official authority to perform in connection therewith, and, hence, his
certification is legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of
Local Governments and Community Development about the tabulated
results of the voting in the Citizens Assemblies allegedly held all over
the Philippines — and the records do not show that any such
certification, to the President of the Philippines or to the President
Federation or National Association of presidents of Provincial
Associations of presidents of municipal association presidents of barrio
or ward assemblies of citizens — would not, legally and
constitutionally, be worth the paper on which it is written. Why?
Because said Department Secretary is not the officer designated by
law to superintend plebiscites or elections held for the ratification or
rejection of a proposed amendment or revision of the Constitution and,
hence, to tabulate the results thereof. Worse still, it is the department
which, according to Article X of the Constitution, should not and must
not be all participate in said plebiscite — if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 84 the
Highest Court of the United States that courts "will not stand impotent
before an obvious instance of a manifestly unauthorized exercise of
power." 85
I cannot honestly say, therefore, that the people impliedly or expressly
indicated their conformity to the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about
the procedure followed in these five (5) cases. In this connection, it
should be noted that the Court has not decided whether or not to give
due course to the petitions herein or to require the respondents to
answer thereto. Instead, it has required the respondents to comment
on the respective petitions — with three (3) members of the voting to
dismiss them outright — and then considers comments thus submitted
by the respondents as motions to dismiss, as well as set the same for
hearing. This was due to the transcendental nature of the main issue
raised, the necessity of deciding the same with utmost dispatch, and
the main defense set up by respondents herein, namely, the alleged
political nature of said issue, placing the same, according to
respondents, beyond the ambit of judicial inquiry and determination. If
this defense was sustained, the cases could readily be dismissed; but,
owing to the importance of the questions involved, a reasoned
resolution was demanded by public interest. At the same time,
respondents had cautioned against a judicial inquiry into the merits of
the issues posed on account of the magnitude of the evil
consequences, it was claimed, which would result from a decision
thereon, if adverse to the Government.
80
As a matter of fact, some of those issues had been raised in the
plebiscite cases, which were dismissed as moot and academic, owing
to the issuance of Proclamation No. 1102 subsequently to the filing of
said cases, although before the rendition of judgment therein. Still one
of the members of the Court (Justice Zaldivar) was of the opinion that
the aforementioned issues should be settled in said cases, and he,
accordingly, filed an opinion passing upon the merits thereof. On the
other hand, three (3) members of the Court — Justices Barredo,
Antonio and Esguerra — filed separate opinions favorable to the
respondents in the plebiscite cases, Justice Barredo holding "that the
1935 Constitution has pro tanto passed into history and has been
legitimately supplanted by the Constitution in force by virtue of
Proclamation 1102." 86 When the petitions at bar were filed, the same
three (3) members of the Court, consequently, voted for the dismissal
of said petitions. The majority of the members of the Court did not
share, however, either view, believing that the main question that arose
before the rendition of said judgment had not been sufficiently
discussed and argued as the nature and importance thereof
demanded.
The parties in the cases at bar were accordingly given every possible
opportunity to do so and to elucidate on and discuss said question.
Thus, apart from hearing the parties in oral argument for five (5)
consecutive days — morning and afternoon, or a total of exactly 26
hours and 31 minutes — the respective counsel filed extensive notes
on their or arguments, as well as on such additional arguments as they
wished to submit, and reply notes or memoranda, in addition to
rejoinders thereto, aside from a sizeable number of document in
support of their respective contentions, or as required by the Court.
The arguments, oral and written, submitted have been so extensive
and exhaustive, and the documents filed in support thereof so
numerous and bulky, that, for all intents and purposes, the situation is
as if — disregarding forms — the petitions had been given due course
and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they
should express their views on the aforementioned issues as if the
same were being decided on the merits, and they have done so in their
individual opinion attached hereto. Hence, the resume of the votes cast
and the tenor of the resolution, in the last pages hereof, despite the
fact that technically the Court has not, as yet, formally given due
course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ of mandamus
prayed for against Gil J. Puyat and Jose Roy, President and President
Pro Tempore respectively of the Senate, it being settled in our
jurisdiction, based upon the theory of separation of powers, that the
judiciary will not issue such writ to the head of a co-equal department,
like the aforementioned officers of the Senate.
In all other respects and with regard to the other respondent in said
case, as well as in cases L-36142, L-36164, L-36236 and L-36283, my
vote is that the petitions therein should be given due course, there
being more than prima facie showing that the proposed Constitution
has not been ratified in accordance with Article XV of the 1935
Constitution, either strictly, substantially, or has been acquiesced in by
the people or majority thereof; that said proposed Constitution is not in
force and effect; and that the 1935 Constitution is still the Fundamental
Law of the Land, without prejudice to the submission of said proposed
Constitution to the people at a plebiscite for its ratification or rejection
in accordance with Articles V, X and XV of the 1935 Constitution and
the provisions of the Revised Election Code in force at the time of such
plebiscite.
Perhaps others would feel that my position in these cases overlooks
what they might consider to be the demands of "judicial
statesmanship," whatever may be the meaning of such phrase. I am
aware of this possibility, if not probability; but "judicial statesmanship,"
though consistent with Rule of Law, cannot prevail over the latter.
Among consistent ends or consistent values, there always is a
hierarchy, a rule of priority.
We must realize that the New Society has many achievements which
would have been very difficult, if not impossible, to accomplish under
the old dispensation. But, in and for the judiciary, statesmanship should
not prevail over the Rule of Law. Indeed, the primacy of the law or of
the Rule of Law and faithful adherence thereto are basic, fundamental
and essential parts of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of
their individual opinions and/or concurrences as appended hereto, the
writer will now make, with the concurrence of his colleagues, a resume
or summary of the votes cast by each of them.
It should be stated that by virtue of the various approaches and views
expressed during the deliberations, it was agreed to synthesize the
basic issues at bar in broad general terms in five questions for
purposes of taking the votes. It was further agreed of course that each
member of the Court would expound in his individual opinion and/or
concurrence his own approach to the stated issues and deal with them
and state (or not) his opinion thereon singly or jointly and with such
priority, qualifications and modifications as he may deem proper, as
well as discuss thereon other related issues which he may consider
vital and relevant to the cases at bar.
The five questions thus agreed upon as reflecting the basic issues
herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a
justiciable, or political and therefore non-justiciable, question?
2. Has the Constitution proposed by the 1971 Constitutional
Convention been ratified validly (with substantial, if not strict,
compliance) conformably to the applicable constitutional and statutory
provisions?
3. Has the aforementioned proposed Constitution acquiesced
in (with or without valid ratification) by the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed
by the members of the Court in their respect opinions and/or
concurrences, are as follows:
1. On the first issue involving the political-question doctrine
Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and
myself, or six (6) members of the Court, hold that the issue of the
validity of Proclamation No. 1102 presents a justiciable and non-
political question. Justices Makalintal and Castro did not vote squarely
on this question, but, only inferentially, in their discussion of the second
question. Justice Barredo qualified his vote, stating that "inasmuch as it
is claimed there has been approval by the people, the Court may
inquire into the question of whether or not there has actually been such
an approval, and, in the affirmative, the Court should keep hands-off
out of respect to the people's will, but, in negative, the Court may
determine from both factual and legal angles whether or not Article XV
of the 1935 Constitution been complied with." Justices Makasiar,
Antonio, Esguerra, or three (3) members of the Court hold that the
issue is political and "beyond the ambit of judicial inquiry."
2. On the second question of validity of the ratification, Justices
Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six
(6) members of the Court also hold that the Constitution proposed by
the 1971 Constitutional Convention was not validly ratified in
accordance with Article XV, section 1 of the 1935 Constitution, which
provides only one way for ratification, i.e., "in an election or plebiscite
held in accordance with law and participated in only by qualified and
duly registered voters. 87
Justice Barredo qualified his vote, stating that "(A)s to whether or not
the 1973 Constitution has been validly ratified pursuant to Article XV, I
still maintain that in the light of traditional concepts regarding the
meaning and intent of said Article, the referendum in the Citizens'
Assemblies, specially in the manner the votes therein were cast,
reported and canvassed, falls short of the requirements thereof. In
view, however, of the fact that I have no means of refusing to
recognize as a judge that factually there was voting and that the
majority of the votes were for considering as approved the 1973
Constitution without the necessity of the usual form of plebiscite
followed in past ratifications, I am constrained to hold that, in the
political sense, if not in the orthodox legal sense, the people may be
deemed to have cast their favorable votes in the belief that in doing so
they did the part required of them by Article XV, hence, it may be said
that in its political aspect, which is what counts most, after all, said
Article has been substantially complied with, and, in effect, the 1973
Constitution has been constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the
Court hold that under their view there has been in effect substantial
compliance with the constitutional requirements for valid ratification.
3. On the third question of acquiescence by the Filipino people
in the aforementioned proposed Constitution, no majority vote has
been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio
and Esguerra hold that "the people have already accepted the 1973
Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself
hold that there can be no free expression, and there has even been no
expression, by the people qualified to vote all over the Philippines, of
their acceptance or repudiation of the proposed Constitution under
Martial Law. Justice Fernando states that "(I)f it is conceded that the
doctrine stated in some American decisions to the effect that
independently of the validity of the ratification, a new Constitution once
accepted acquiesced in by the people must be accorded recognition by
81
the Court, I am not at this stage prepared to state that such doctrine
calls for application in view of the shortness of time that has elapsed
and the difficulty of ascertaining what is the mind of the people in the
absence of the freedom of debate that is a concomitant feature of
martial law." 88
Three (3) members of the Court express their lack of knowledge and/or
competence to rule on the question. Justices Makalintal and Castro are
joined by Justice Teehankee in their statement that "Under a regime of
martial law, with the free expression of opinions through the usual
media vehicle restricted, (they) have no means of knowing, to the point
of judicial certainty, whether the people have accepted the
Constitution." 89
4. On the fourth question of relief, six (6) members of the Court,
namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra voted to DISMISS the petition. Justice Makalintal and Castro
so voted on the strength of their view that "(T)he effectivity of the said
Constitution, in the final analysis, is the basic and ultimate question
posed by these cases to resolve which considerations other than
judicial, an therefore beyond the competence of this Court, 90 are
relevant and unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando,
Teehankee and myself voted to deny respondents' motion to dismiss
and to give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973
is in force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar,
Antonio and Esguerra hold that it is in force by virtue of the people's
acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro,
Fernando and Teehankee cast no vote thereon on the premise stated
in their votes on the third question that they could not state with judicial
certainty whether the people have accepted or not accepted the
Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself
voted that the Constitution proposed by the 1971 Constitutional
Convention is not in force;
with the result that there are not enough votes to declare that the new
Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the
four (4) dissenting votes of the Chief Justice and Justices Zaldivar,
Fernando and Teehankee, all the aforementioned cases are hereby
dismissed. This being the vote of the majority, there is no further
judicial obstacle to the new Constitution being considered in force and
effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ.,
concur.
ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have
almost uniformly exercised the authority to determine the validity of the
proposal, submission, or ratification of constitutional amendments. It
has been judicially determined whether a proposed amendment
received the constitutional majority of votes (Dayton v. St. Paul, 22
Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63
N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46
Ohio St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh National Bank V.
Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State Board, 5 Idaho,
130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156 Ind. 104, 59
N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423);
whether a proposed amendment is a single amendment, within the
constitutional requirement that every amendment must be separately
submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v.
Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54
Wis. 318, 11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51
L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People
v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v.
Board, 34 Mont. 426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W.
1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the resolution
of submission upon the legislative journals invalidates the amendment
(Koehler v. Hill, 60 Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland
Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v. State, 50 Fla.
154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State
v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the
description of the amendment and the form of the ballot are sufficient
(Russell v. Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110
N.W. 1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General
[Mich.] 112 N.W. 127); whether the method of submission sufficient
(Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164
Mo. 69, 63 S.W. 849); whether the publication of the amendment or of
a notice relative to it is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl.
505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849);
whether the submission may be well by resolution as by a legislative
act approved by the executive (Com. v. Griest, 196 Pa. 396, 46 Atl.
505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78, 60 Atl. 538;
Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v.
Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418,
34 L.R.A. 97); at what election the amendment be submitted (People v.
Curry, 130 Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court
said: "It is contended that the determination of the question whether an
amendment to the Constitution has been carried involves the exercise
of political, and not judicial, power. If this be so, it follows that the
promulgation of any purported amendment by the executive or any
executive department is final, and that the action cannot be questioned
by the judiciary; but, with reference to the conditions precedent to
submitting a proposed amendment to a vote of the people, it has been
repeatedly held, by courts of the highest respectability, that it is within
the power of the judiciary to inquire into the question, even in a
collateral proceeding. ... It is to be noted that under section 1 of article
20 of the Constitution of the state no amendment can become a part of
the Constitution until ratified by a vote of the people. One prerequisite
is equally as essential as the other. The amendment must first receive
the requisite majority in the Legislature, and afterwards be adopted by
the requisite vote. ... It is the fact of a majority vote which makes the
amendment a part of the Constitution."
"In considering the cases it is necessary to note whether in the
particular case the court was called upon to determine between rival
governments, or whether the Legislature, or some board or official, had
legally performed the duty imposed by the Constitution or statutes. In
re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the
General Assembly, under the power granted by the Constitution, could
change the Constitution only in the manner prescribed by it, and that it
was the duty of the court to determine whether all prerequisites had
been complied with. In Collier v. Frierson, 24 Ala. 100, it was held that
a Constitution can be changes only by the people in convention or in a
mode described by the Constitution itself, and that if the latter mode is
adopted every requisite of the Constitution must be observed. 'It has
been said," says the court, "that certain acts are to be done, certain
requisitions are to be observed, before a change can be effected; but
to what purpose are these acts required, or these requisitions enjoined,
if the Legislature or any other department of the government can
dispense with them. To do so would be to violate the instrument which
they are sworn to support; and every principle of public law and sound
constitutional policy requires the court to pronounce against every
amendment which is shown not to have been made in accordance with
the rules prescribed by the fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state
may form an original Constitution, or abrogate an old one and form a
new one, at any time, without any political restriction, except the
Constitution of the United States, but if they undertake to add an
amendment, by the authority of legislation to a Constitution already in
existence, they can do it only by the method pointed out by the
Constitution to which the amendment is added. The power to amend a
Constitution by legislative action does not confer the power to break it,
any more than it confers the power to legislate on any other subject
contrary to its prohibitions.' So, in State v. Timme, 54 Wis. 318, 11
N.W. 785, it was held that no amendments can be made to the
Constitution of the state without a compliance with the provisions
thereof, both in the passage of such amendment by the Legislature
and the manner of submitting it to the people. The courts have not all
agreed as to the strictness of compliance which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the court
determined judicially whether an amendment to the Constitution had
been legally adopted. After approving the statement quoted from
Collier v. Frierson, supra, that 'we entertain no doubt that, to change
the Constitution in an other mode than by a convention, every requisite
which is demanded by the instrument itself must be observed, and the
omission of any one is fatal to the amendment,' the court held that, 'as
substance of right is grander and more potent than methods of form,'
there had been substantial compliance with the constitutional
requirement that a proposed amendment to the Constitution must be
entered at length on the legislative journal. It appears that the joint
resolution making submission simply provided that a proposition should
be submitted to the electors at the general election of 1880. It did not
declare that the machinery of the general election law should control,
or that any particular officers or board would receive, count, or canvass
82
the votes cast. But the existing election machinery was adequate, and
the votes were received, counted, and canvassed, and the result
declared as fully as though it had been in terms so ordered. These
methods had been followed in the adoption of previous amendments,
and was held that, conceding the irregularity of the proceedings the
Legislature and the doubtful scope of the provisions for the election,
yet in view of the very uncertainty of such provision the past legislative
history of similar propositions, the universal prior acquiescence in the
same forms of procedure and the popular and unchallenged
acceptance of the legal pendency before the people of the question of
the amendment for decision, and in view of the duty cast upon the
court taking judicial knowledge of anything affecting the existence and
validity of any law or portion of the Constitution, it must be adjudged
that the proposed amendment became part of the Constitution. The
effect was to hold that a provision of the Constitution requiring the
proposed amendment to be entered in full on the journals was
directory, and not mandatory. This liberal view was approved in State
v. Winnett (Neb.) 110 N. 1113, 10 L.R.A. (N.S.) 149, and People v.
Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep. 34. But it has not
been universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in
commenting upon the Kansas case said: 'The reasoning by which the
learned court reached the conclusion it did is not based on any sound
legal principles, but contrary to them. Neither the argument nor the
conclusion can command our assent or approval. The argument is
illogical, and based on premises which are without any sound
foundation, and rests merely on assumption.' See, also, the well-
considered case of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75
Pac. 222. All these cases concede the jurisdiction of the court to
determine whether, in submitting a proposed amendment to the
people, the Legislature legally observed the constitutional provisions as
to the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36
Pac. 424, 25 L.R.A. 312, the court, at the instance of a citizen and a
taxpayer, restrained the Secretary of State from taking steps to submit
to the people a proposed amendment to the Constitution agreed to by
the Legislature on the ground that the Legislature had not acted in
conformity with the Constitution and that the proposed amendment was
of such a character that it could not properly become a part of the
Constitution. The Supreme Court of Colorado, in People v. Sours,
supra, refused to exercise this authority.
"The entire question received elaborate consideration in Koehler v. Hill,
60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, which
concededly had been adopted by the people, had not, before its
submission, been entered in full upon the legislative journals, as
required by the Constitution, and it was held that this was a material
variance in both form and substance from the constitutional
requirements, and that the amendment did not, therefore, become a
part of the Constitution. As to the claim that the question was political,
and not judicial, it was said that, while it is not competent for courts to
inquire into the validity of the Constitution and the form of government
under which they themselves exist, and from which they derive their
powers, yet, where the existing Constitution prescribes a method for its
own amendment, an amendment thereto, to be valid, must be adopted
in strict conformity to that method; and it is the duty of the courts in a
proper case, when an amendment does not relate to their own power
or functions, to inquire whether, in the adoption of the amendment, the
provisions of the existing Constitution have been observed, and, if not,
to declare the amendment invalid and of no force. This case was
followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. 76, the question whether a proposed
amendment to the Constitution had been legally adopted was treated
as a judicial question. By the Constitution a proposed amendment was
required to be approved by Legislatures before its submission to the
people. In this instance a bill was passed which contained 17
amendments. The next Legislature rejected 9 and adopted 8 of the
amendments, and submitted them to the people. The majority of the
people voted for their adoption; but it was contended that the
Constitution contemplated and required that the same bill and the
same amendments, without change, should approved by both
Legislatures, and that it did not follow because the second Legislature
adopted separately 8 out of 17 amendments adopted by the first
Legislature, it would have adopted the 17, or any of them, if they had
been voted upon the second in the form adopted by the first body. The
substance of the contention was that there had not been a concurrence
of the two Legislatures on the same amendments, according to the
letter and spirit of the Constitution. The court held that the power of the
Legislature in submitting amendments could not be distinguished from
the powers of convention, and that, as the people had spoken and
ratified the amendments, they became a part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held
that prior to 1876 a proposed amendment to Constitution could not be
submitted to the people at any other than a general election; but, as
the amendment under consideration had been submitted after the
Constitution been changed, it had been legally submitted and adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether
an amendment to the Constitution had been legally submitted and
adopted by the people was held to be judicial, and not political, in its
nature. The amendment under consideration changed the Constitution
by providing for an elective, instead of an appointive, judiciary. It was
contented that the amendments had been improperly submitted and
adopted by a majority of the qualified voters voting at election, as
required by the Constitution. The law did direct how the result of the
election should be determined. The Legislature by joint resolution
recited that the election had been duly held throughout the state, and,
as it appeared from the returns made to the Secretary of State, that
21,169 votes were cast in favor of, and 8,643 votes against, the
amendment, it resolved 'that said amendment be, and hereby is,
inserted into the Constitution of the state of Mississippi as a part of the
Constitution.' In fact, the amendment was not submitted in the manner
prescribed by the Constitution, and it did not receive a majority of all
the qualified voters voting at the election. It was argued that the rules
prescribed by the Constitution "are all for the guidance of the
Legislature, and from the very nature of the thing the Legislature must
be the exclusive judge of all questions to be measured or determined
by these rules. Whether the question be political, and certainly a
legislative one, or judicial, to be determined by the courts, this section
of rules, not only of procedure, but of final judgment as well, confides to
the separate magistracy of the legislative department full power to
hear, consider, and adjudge that question. The Legislature puts the
question to the qualified electors. The qualified electors answer back to
the Legislature. "If it shall appear" to the Legislature that its question
has been answered in the affirmative, the amendment is inserted and
made a part of the Constitution. The Governor and the courts have no
authority to speak at any stage of the proceedings between the
sovereign and the Legislature, and when the matter is thus concluded
it is closed, and the judiciary is as powerless to interfere as the
executive.' But it was held that the question whether the proposition
submitted to the voters constituted one, or more than one, amendment,
whether the submission was according to the requirements of the
Constitution, and whether the proposition was in fact adopted, were all
judicial, and not political, questions. 'We do not,' said Chief Justice
Whitfield, 'seek a jurisdiction not imposed upon us by the Constitution.
We could not, if we would, escape the exercise of that jurisdiction
which the Constitution has imposed upon us. In the particular instance
in which we are now acting, our duty to know what the Constitution of
the state is, and in accordance with our oaths to support and maintain
it in its integrity, imposed on us a most difficult and embarrassing duty,
one which we have not sought, but one which, like all others, must be
discharged."
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it
was held that it was the duty of the judicial department of the
government to determine whether the legislative department or its
officers had observed the constitutional injunctions in attempting to
amend the Constitution, and to annul their acts if they had not done so.
The case is an interesting and well-considered one. The Constitution
provided the manner in which proposed amendments should be
submitted to the people, but did not provide a method for canvassing
the votes. The Legislature having agreed to certain proposed
amendments, passed an act for submitting the same to the people.
This statute provided for the transmission to the Secretary of State of
certificate showing the result of the voting throughout the state, and
made it the duty of the Governor at the designated time summon four
or more Senators, who, with the Governor, should constitute a board of
state canvassers to canvass and estimate the votes for and against
each amendment. This board was to determine and declare which of
the proposed amendments had been adopted and to deliver a
statement of the results to the Secretary of State, and "any proposed
amendment, which by said certificate and determination of the board of
canvassers shall appear to have received in its favor the majority of all
the votes cast in the state for and against said proposed amendment,
shall from the time of filing such certificate be and become an
amendment to and a part of the Constitution of the state; and it shall be
the duty of the Governor of the state forthwith, after such a
determination, to issue a proclamation declaring which of the said
proposed amendments have been adopted by the people." This board
was required to file a statement of the result of the election, and the
Governor to issue his proclamation declaring that the amendment had
been adopted and become a part of the Constitution. At the instance of
a taxpayer the Supreme Court allowed a writ of certiorari to remove
into the court for review the statement of the results of the election
made by the canvassing board, in order that it might be judicially
determined whether on the facts shown in that statement the board
had legally determined that the proposed amendment had been
adopted. The Supreme Court decided that the concurrence of the
board of state canvassers and the executive department of the
government in their respective official functions placed the subject-
matter beyond the cognizance of the judicial department of the state.
The Court of Appeals, after a full review of the authorities, reversed this
decision, and held that the questions were of a judicial nature, and
properly determinable by the court on their merits. Mr. Justice Dixon,
after stating the facts, said: 'It thus becomes manifest that there was
present in the Supreme Court, and is now pending in this court, every
element tending to maintain jurisdiction over the subject-matter, unless
it be true, as insisted, that the judicial department of the government
has not the right to consider whether the legislative department and its
agencies have observed constitutional injunctions in attempting to
amend the Constitution, and to annul their acts in case that they have
not done so. That such a proposition is not true seems to be indicated
by the whole history of jurisprudence in this country.' The court, after
considering the case on the merits, held that the proper conclusion had
83
been drawn therefrom, and that the amendment in question was legally
submitted and adopted.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396,
presented the identical question which we have under consideration. In
reference to the contention that the Constitution intended to delegate to
the Speaker of the House of Representatives the power to determine
whether an amendment had been adopted, and that the question was
political, and not judicial, the court observed: "The argument has often
been made in similar cases to the courts, and it is found in many
dissenting opinions; but, with probably a few exceptions, it is not found
in any prevailing opinion."
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held
that the constitutional requirement of publication of a proposed
constitutional provision for three months prior to the election at which it
is to be submitted to the people is mandatory and that noncompliance
therewith renders the adoption of an amendment of no effect."
ANNEX B
MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86
dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit to them for resolution
important national issues;
WHEREAS, one of the questions persistently mention refers to the
ratification of the Constitution proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said petitions, it is evident that the
people believe that the submission of the proposed Constitution to the
Citizens Assemblies or Barangays should taken as a plebiscite in itself
in view of the fact that freedom of debate has always been limited to
the leadership in political, economic and social fields, and that it is now
necessary to bring this down to the level of the people themselves
through the Barangays or Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution,
do hereby order that important national issues shall from time to time
be referred to the Barangays (Citizens Assemblies) for resolution in
accordance with Presidential Decree No. 86-A dated January 5, 1973
an that the initial referendum shall include the matter of ratification of
the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Government and Community
Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our
Lord, nineteen hundred and seventy-three.
(SGD.) FERDINAND E. MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR
Executive Secretary
Separate Opinions
MAKALINTAL, J., concurring:
CASTRO, J., concurring:
The preliminary question before this Court was whether or not the
petitioners had made out a sufficient prima facie case in their petitions
to justify their being given due course. Considering on the one hand
the urgency of the matter and on the other hand its transcendental
importance, which suggested the need for hearing the side of the
respondents before that preliminary question was resolved, We
required them to submit their comments on the petitions. After the
comments were filed We considered them as motions to dismiss so
that they could be orally argued. As it turned out, the hearing lasted
five days, morning and afternoon, and could not have been more
exhaustive if the petitions had been given due course from the
beginning.
The major thrust of the petitions is that the act of the Citizens
Assemblies as certified and proclaimed by the President on January
17, 1973 (Proclamation No. 1102) was not an act of ratification, let
alone a valid one, of the proposed Constitution, because it was not in
accordance with the existing Constitution (of 1935) and the Election
Code of 1971. Other grounds are relied upon by the petitioners in
support of their basic proposition, but to our mind they are merely
subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that
amendments (proposed either by Congress in joint session or by a
Convention called by it for the purpose) "shall be valid part of this
Constitution when approved by a majority of votes cast at an election
at which the amendments submitted to the people for their ratification."
At the time Constitution was approved by the Constitutional Convention
on February 8, 1935, and ratified in a plebiscite held on following May
14, the word "election" had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept, but a
procedure prescribed by statute ascertaining the people's choices
among candidates for public offices, or their will on important matters
submitted to the pursuant to law, for approval. It was in this sense that
word was used by the framers in Article XV (also in Articles VI and VII),
and in accordance with such procedure that plebiscites were held to
ratify the very same Constitution in 1935 as well as the subsequent
amendments thereto, thus: in 1939 (Ordinance appended to the
Constitution); 1940 (establishment of a bicameral legislature; eligibility
of the President and the Vice President for re election; creation of the
Commission of Elections); 1947 (Parity Amendment); and 1967
(increase in membership of the House of Representatives and eligibility
of members of Congress to run for the Constitutional Convention
without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that "all elections of
public officers except barrio officials and plebiscites shall be conducted
in the manner provided by this Code." This is a statutory requirement
designed, as were the other election laws previously in force, to carry
out the constitutional mandate relative to the exercise of the right
suffrage, and with specific reference to the term "plebiscites," the
provision of Article XV regarding ratification of constitutional
amendments.
The manner of conducting elections and plebiscites provided by the
Code is spelled out in other sections thereof. Section 99 requires that
qualified voters be registered in a permanent list, the qualifications
being those set forth in Article V, Section 1, of the 1935 Constitution on
the basis of age (21), literacy and residence. These qualifications are
reiterated in Section 101 of the Election Code. Section 102 enumerates
the classes of persons disqualified to vote. Succeeding sections
prescribe the election paraphernalia to be used, the procedure for
registering voters, the records, of registration and the custody thereof,
the description and printing of official ballots, the actual casting of votes
and their subsequent counting by the boards of inspectors, the rules for
appreciation of ballots, and then the canvass and proclamation of the
results.
With specific reference to the ratification of the 1972 draft Constitution,
several additional circumstances should be considered:
(1) This draft was prepared and approved by a Convention
which had been convened pursuant to Resolution No. 2 passed by
Congress on March 16, 1967, which provides:
Sec. 7. The amendments proposed by the Convention shall be valid
and considered part of the Constitution when approved by a majority of
the votes cast in an election at which they are submitted to the people
for their ratification pursuant to Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
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.
The same procedure is prescribed in Article XVI, Section 2, for the
ratification of any future amendment to or revision of the said
Constitution.
(3) After the draft Constitution was approved by the
Constitutional Convention on November 30, 1972 the said body
adopted Resolution No. 5843, proposing "to President Ferdinand E.
Marcos that a decree be issued calling a plebiscite for the ratification of
the proposed New Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor." Pursuant to
said Resolution the President issued Decree No. 73 on the same day,
calling a plebiscite to be held on January 15, 1973, at which the
proposed Constitution "shall be submitted to the people for ratification
or rejection." The Decree had eighteen (18) sections in all, prescribing
in detail the different steps to be taken to carry out the process of
84
ratification, such as: (a) publication of the proposed Constitution in
English and Pilipino; (b) freedom of information and discussion; (c)
registration of voters: (d) appointment of boards of election inspectors
and designation of watchers in each precinct; (e) printing of official
ballots; (f) manner of voting to insure freedom and secrecy thereof; (g)
canvass of plebiscite returns; and (h) in general, compliance with the
provisions of the Election Code of 1971, with the Commission on
Elections exercising its constitutional and statutory powers of
supervision of the entire process.
There can hardly be any doubt that in everybody's view — from the
framers of the 1935 Constitution through all the Congresses since then
to the 1971 Constitutional Convention — amendments to the
Constitution should be ratified in only one way, that is, in an election or
plebiscite held in accordance with law and participated in only by
qualified and duly registered voters. Indeed, so concerned was this
Court with the importance and indispensability of complying with the
mandate of the (1935) Constitution in this respect that in the recent
case of Tolentino vs. Commission on Elections, No. L-34150, October
16, 1971 (41 SCRA 702), a resolution of the (1971) Constitutional
Convention submitting a proposed amendment for ratification to a
plebiscite to be held in November 1971 was declared null and void.
The amendment sought to reduce the voting age from twenty-one to
eighteen years and was approved by the Convention for submission to
a plebiscite ahead of and separately from other amendments still being
or to be considered by it, so as to enable the youth to be thus
enfranchised to participate in the plebiscite for the ratification of such
other amendments later. This Court held that such separate
submission was violative of Article XV, Section 1, of the Constitution,
which contemplated that "all the amendments to be proposed by the
same Convention must be submitted to the people in a single "election"
or plebiscite." * Thus a grammatical construction based on a singular,
instead of plural, rendition of the word "election" was considered a
sufficient ground to rule out the plebiscite which had been called to
ratify a proposed amendment in accordance with the procedure and
under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the
ratification of just one amendment, as in Tolentino vs. COMELEC, but
the ratification of an entire charter setting up a new form of
government; and the issue has arisen not because of a disputed
construction of one word or one provision in the 1935 Constitution but
because no election or plebiscite in accordance with that Constitution
and with the Election Code of 1971 was held for the purpose of such
ratification.
The Citizens Assemblies which purportedly ratified the draft
Constitution were created by Presidential Decree No. 86 dated
December 31, 1972, "to broaden the base of citizen participation in the
democratic process and to afford ample opportunities for the citizenry
to express their views on important national issues." The Assemblies
"shall consist of all persons who are residents of the barrio, district or
ward for at least six months, fifteen years of age or over, citizens of the
Philippines and who are registered in the lists of Citizen Assembly
members kept by the barrio, district or ward secretary." By Presidential
Decree No. 86-A, dated January 5, 1973, the Assemblies were
convened for a referendum between January 10 and 15, to "consider
vital national issues now confronting the country, like the holding of the
plebiscite on the new Constitution, the continuation of martial rule, the
convening of Congress on January 22, 1973, and the holding of
elections in November 1973."
On January 5, 1973 the newspapers came out with a list of four
questions to be submitted to the Citizens Assemblies, the fourth one
being as follows: "How soon would you like plebiscite on the new
Constitution to be held?" It should be noted in this connection that the
President had previously announced that he had ordered the
postponement of plebiscite which he had called for January 15, 1973
(Presidential Decree No. 73) for the ratification of the Constitution, and
that he was considering two new dates for the purpose — February 19
or March 5; that he had ordered that the registration of voters (pursuant
to Decree No. 73) be extended to accommodate new voters; and that
copies of the new Constitution would be distributed in eight dialects the
people. (Bulletin Today, December 24, 1972.)
On January 10, 1973 it was reported that one more question would be
added to the original four which were to be submitted to the Citizens
Assemblies. The question concerning plebiscite was reworded as
follows: "Do you like the plebiscite to be held later?" The implication, it
may likewise be noted, was that the Assemblies should express their
views as to the plebiscite should be held, not as to whether or not it
should be held at all.
The next day, January 11, it was reported that six additional questions
would be submitted, namely:
(1) Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interest?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify the new
Constitution?

(4) Do you want the elections to be held in November, 1973
accordance with the provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want the next
elections to be called?
(6) Do you want martial law to continue? [Bulletin Today,
January 11, 1973; emphasis supplied].
Appended to the six additional questions above quoted were the
suggested answers, thus:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it is
to be convened at all, it should not be done so until after at least seven
(7) years from the approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
The vote of the Citizens Assemblies should already be considered the
plebiscite on the New Constitution.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections
will be enough for stability to be established in the country, for reforms
to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him
to exercise his powers with more authority. We want him to be strong
and firm so that he can accomplish all his reform program and
establish normalcy in the country. If all other measures fail, we want
President Marcos to declare a revolutionary government along the
lines of the new Constitution without the ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported
referendum, the suggestion was broached, for the first time, that the
plebiscite should be done away with and a favorable vote by the
Assemblies deemed equivalent ratification. This was done, not in the
questionnaire itself, but in the suggested answer to question No. 3.
Strangely, however, it was not similarly suggested that an unfavorable
vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in
which the voting was conducted in the Citizen Assemblies, assuming
that such voting was held, was not within the intendment of Article XV,
Section 1, of the 1935 Constitution nor in accordance with the Election
Code of 1971. The referendum can by no means be considered as the
plebiscite contemplated in Section 2 of said Code and in Article XVII,
Section 16, of the draft Constitution itself, or as the election intended
by Congress when it passed Resolution No. 2 on March 16, 1967
calling a Convention for the revision of the 1935 Constitution. The
Citizens Assemblies were not limited to qualified, let alone registered
voters, but included all citizens from the age of fifteen, and regardless
of whether or not they were illiterates, feeble-minded, or ex convicts *
— these being the classes of persons expressly disqualified from
voting by Section 102 of the Election Code. In short, the constitutional
and statutory qualifications were not considered in the determination of
who should participate. No official ballots were used in the voting; it
was done mostly by acclamation or open show of hands. Secrecy,
which is one of the essential features of the election process, was not
therefore observed. No set of rules for counting the votes or of
tabulating them and reporting the figures was prescribed or followed.
The Commission on Elections, which is the constitutional body charged
with the enforcement and administration of all laws relative to the
conduct of elections, took no part at all, either by way of supervision or
in the assessment of the results.
It has been suggested that since according to Proclamation No. 1102
the overwhelming majority of all the members of the Citizens
Assemblies had voted for the adoption of the proposed Constitution
there was a substantial compliance with Article XV, Section 1, of the
1935 Constitution and with the Election Code of 1971. The suggestion
misses the point entirely. It is of the essence of a valid exercise of the
85
right of suffrage that not only must a majority or plurality of the voters
carry the day but that the same must be duly ascertained in
accordance with the procedure prescribed by law. In other words the
very existence of such majority or plurality depends upon the manner
of its ascertainment, and to conclude that it exists even if it has not
been ascertained according to law is simply to beg the issue, or to
assume the very fact to be established. Otherwise no election or
plebiscite could be questioned for non-compliance with the provisions
of the Election Law as long as it is certified that a majority of the
citizens had voted favorably or adversely on whatever it was that was
submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the
Citizens Assemblies, as certified by the President in Proclamation No.
1102, was not in accordance with the constitutional and statutory
procedure laid down for the purpose does not quite resolve the
questions raised in these cases. Such a finding, in our opinion, is on a
matter which is essentially justiciable, that is, within the power of this
Court to inquire into. It imports nothing more than a simple reading and
application of the pertinent provisions of the 1935 Constitution, of the
Election Code and of other related laws and official acts. No question
of wisdom or of policy is involved. But from this finding it does not
necessarily follow that this Court may justifiably declare that the
Constitution has not become effective, and for that reason give due
course to these petitions or grant the writs herein prayed for. The
effectivity of the said Constitution, in the final analysis, is the basic and
ultimate question posed by these cases, to resolve which
considerations other than judicial, and therefore beyond the
competence of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The
petitioners lay stress on the invalidity of the ratification process
adopted by the Citizens Assemblies and on that premise would have
this Court grant the reliefs they seek. The respondents represented by
the Solicitor General, whose theory may be taken as the official
position of the Government, challenge the jurisdiction of this Court on
the ground that the questions raised in the petitions are political and
therefore non-justiciable, and that in any case popular acquiescence in
the new Constitution and the prospect of unsettling acts done in
reliance thereon should caution against interposition of the power of
judicial review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in
their respective capacities as President and President Pro Tempore of
the Senate of the Philippines, and through their counsel, Senator
Arturo Tolentino, likewise invoke the political question doctrine, but on
a ground not concurred in by the Solicitor General, namely, that
approval of the 1973 Constitution by the people was made under a
revolutionary government, in the course of a successful political
revolution, which was converted by act of the people to the present de
jure government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court
for adjudication proceeded on the assumption, conceded by all, that
the Constitution was in full force and effect, with the power and
authority of the entire Government behind it; and the task of this Court
was simply to determine whether or not the particular act or statute that
was being challenged contravened some rule or mandate of that
Constitution. The process employed was one of interpretation and
synthesis. In the cases at bar there is no such assumption: the
Constitution (1935) has been derogated and its continued existence as
well as the validity of the act of derogation is issue. The legal problem
posed by the situation is aggravated by the fact that the political arms
of the Government — the Executive Departments and the two Houses
of Congress — have accepted the new Constitution as effective: the
former by organizing themselves and discharging their functions under
it, and the latter by not convening on January 22, 1973 or at any time
thereafter, as ordained by the 1935 Constitution, and in the case of a
majority of the members by expressing their option to serve in the
Interim National Assembly in accordance with Article XVIII, Section 2,
of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents
Puyat and Roy, may be taken up and restated at same length if only
because it would constitute, if sustained, the most convenient ground
for the invocation of the political-question doctrine. In support of his
theory, Senator Tolentino contends that after President Marcos
declared martial law on September 21, 1972 (Proclamation No. 1081)
he established a revolutionary government when he issued General
Order No. 1 the next day, wherein he proclaimed "that I shall govern
the nation and direct the operation of the entire government, including
all its agencies and instrumentalities, in my capacity, and shall exercise
all the powers and prerogatives appurtenant and incident to my
position as such Commander-in-Chief of all the Armed Forces of the
Philippines." By this order, it is pointed out, the Commander-in-Chief of
the Armed Forces assumed all the powers of government — executive,
legislative, and judicial; and thereafter proceeded to exercise such
powers by a series of Orders and Decrees which amounted to
legislative enactments not justified under martial law and, in some
instances, trenched upon the domain of the judiciary, by removing from
its jurisdiction certain classes of cases, such as "those involving the
validity, legality, or constitutionality of Proclamation No. 1081, or of any
decree, order or act issued, promulgated or performed by me or by my
duly designated representative pursuant thereto." (General Order No. 3
as amended by General Order No. 3-A, dated September 24, 1972.)
The ratification by the Citizens Assemblies, it is averred, was the
culminating act of the revolution, which thereupon converted the
government into a de jure one under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the
1973 Constitution and that such ratification as well as the
establishment of the government thereunder formed part of a
revolution, albeit peaceful, then the issue of whether or not that
Constitution has become effective and, as necessary corollary,
whether or not the government legitimately functions under it instead of
under the 1935 Constitution, is political and therefore non-judicial in
nature. Under such a postulate what the people did in the Citizen
Assemblies should be taken as an exercise of the ultimate sovereign
power. If they had risen up in arms and by force deposed the then
existing government and set up a new government in its place, there
could not be the least doubt that their act would be political and not
subject to judicial review but only to the judgment of the same body
politic act, in the context just set forth, is based on realities. If a new
government gains authority and dominance through force, it can be
effectively challenged only by a stronger force; judicial dictum can
prevail against it. We do not see that situation would be any different,
as far as the doctrine of judicial review is concerned, if no force had
been resorted to and the people, in defiance of the existing
Constitution but peacefully because of the absence of any appreciable
opposition, ordained a new Constitution and succeeded in having the
government operate under it. Against such a reality there can be no
adequate judicial relief; and so courts forbear to take cognizance of the
question but leave it to be decided through political means.
The logic of the political-question doctrine is illustrated in statement of
the U.S. Supreme Court in a case * relied upon, curiously enough, by
the Solicitor General, who disagrees with the revolutionary government
theory of Senator Tolentino. The case involved the issue of which of
two opposing governments struggling for supremacy in the State of
Rhode Island was the lawful one. The issue had previously come up in
several other cases before the courts of the State, which uniformly held
that the inquiry belonged to the political power and not to the judicial.
Commenting on the ruling thus arrived at, the U.S. Supreme Court
said: "And if a State court should enter upon the inquiry proposed in
this case, and should come to the conclusion that the government
under which it acted had been put aside and displaced by an opposing
government, it would cease to be a court, and incapable of
pronouncing a judicial decision upon the question it undertook to try. If
it decides at all as a court, it necessarily affirms the existence and
authority of the government under which it is exercising judicial power."
In other words, since the court would have no choice but to decide in
one way alone in order to be able to decide at all, the question could
not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden
would be applicable in the cases at bar only on the premise that the
ratification of the Constitution was a revolutionary act and that the
government now functioning it is the product of such revolution.
However, we are not prepared to agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification,
several significant circumstances may be noted. (1) The Citizens
Assemblies were created, according to Presidential Decree No. 86, "to
broaden the base of citizen participation in the democratic process and
to afford ample opportunities for the citizenry to express their views on
important national issues." (2) The President announced, according to
the Daily Express of January 2, 1973, that "the referendum will be in
the nature of a loose consultation with the people." (3) The question, as
submitted to them on the particular point at issue here, was "Do you a
approve of the Constitution?" (4) President Marcos, in proclaiming that
the Constitution had been ratified, stated as follows: "(S)ince the
referendum results show that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies) are in favor of the
new Constitution, the Katipunan ng mga Barangay has strongly
recommended that the new Constitution should already be deemed
ratified by the Filipino people." (5) There was not enough time for the
Citizens Assemblies to really familiarize themselves with the
Constitution, much less with the many other subjects that were
submitted to them. In fact the plebiscite planned for January 15, 1973
under Presidential Decree No. 73 had been postponed to an indefinite
date, the reasons for the postponement being, as attributed to the
President in the newspapers, that "there was little time to campaign for
or against ratification" (Daily Express, Dec. 22, 1972); that he would
base his decision (as to the date, of the plebiscite) on the compliance
by the Commission (on Elections) on the publication requirement of the
new Charter and on the position taken by national leaders" (Daily
Express, Dec. 23, 1972); and that "the postponement would give us
more time to debate on the merits of the Charter." (Bulletin Today, Dec.
24, 1972.)
The circumstances above enumerated lead us to the conclusion that
the Citizens Assemblies could not have understood the referendum to
be for the ratification of the Constitution, but only for the expression of
their views on a consultative basis. Indeed, if the expression of those
views had been intended as an act of ratification (or of rejection as a
logical corollary) — there would have been no need for the Katipunan
ng mga Barangay to recommend that the Constitution should already
86
be deemed ratified, for recommendation imports recognition of some
higher authority in whom the final decision rests.
But then the President, pursuant to such recommendation, did proclaim
that the Constitution had been ratified and had come into effect. The
more relevant consideration, therefore, as far as we can see, should be
as to what the President had in mind in convening the Citizens
Assemblies, submitting the Constitution to them and proclaiming that
the favorable expression of their views was an act of ratification. In this
respect subjective factors, which defy judicial analysis and
adjudication, are necessarily involved.
In positing the problem within an identifiable frame of reference we find
no need to consider whether or not the regime established by
President Marcos since he declared martial law and under which the
new Constitution was submitted to the Citizens Assemblies was a
revolutionary one. The pivotal question is rather whether or not the
effectivity of the said Constitution by virtue of Presidential Proclamation
No. 1102, upon the recommendation of the Katipunan ng mga
Barangay, was intended to be definite and irrevocable, regardless of
non-compliance with the pertinent constitutional and statutory
provisions prescribing the procedure for ratification. We must confess
that after considering all the available evidence and all the relevant
circumstances we have found no reasonably reliable answer to the
question. On one hand we read, for instance, the following public
statements of the President:
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no turning back for our
people.
We have committed ourselves to this revolution. We have pledged to it
our future, our fortunes, our lives, our destiny. We have burned our
bridges behind us. Let no man misunderstand the strength of our
resolution. (A Report to the Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January
17, 1973, the President said the following, among other things:
... We can, perhaps delimit the power of the people to speak on legal
matters, on justiciable matters, on matters that may come before the
experts and interpreters of the law. But we cannot disqualify the people
from speaking on what we and the people consider purely political
matters especially those that affect the fundamental law of the land.
... The political questions that were presented to the people are exactly
those that refer to the form of government which the people want ...
The implications of disregarding the people's will are too awesome to
be even considered. For if any power in government should even dare
to disregard the people's will there would be valid ground for revolt.
... Let it be known to everybody that the people have spoken and they
will no longer tolerate any attempt to undermine the stability of their
Republic; they will rise up in arms not in revolt against the Republic but
in protection of the Republic which they have installed. It is quite clear
when the people say, we ratify the Constitution, that they mean they
will not discard, the Constitution.
On January 19, 1973 the Daily Express published statement of the
President made the day before, from which the following portion is
quoted:
... the times are too grave and the stakes too high for us permit the
customary concessions to traditional democratic process to hold back
our people's clear and unequivocal resolve and mandate to meet and
overcome the extraordinary challenges presented by these
extraordinary times.
On the same occasion of the signing of Proclamation No. 1102 the
President made pointed reference to "the demand of some of our
citizens ... that when all other measures should fail, that the President
be directed to organize and establish a Revolutionary Government,"
but in the next breath added: "... if we do ratify the Constitution, how
can we speak of Revolutionary Government? They cannot be
compatible ..." "(I)t is my feeling," he said, "that the Citizens'
Assemblies which submitted this recommendation merely sought
articulate their impatience with the status quo that has brought about
anarchy, confusion and misery to the masses ..." The only alternatives
which the President clearly implied by the foregoing statements were
the ratification of the new Constitution and the establishment of a
revolutionary government, the latter being unnecessary, in his opinion,
because precisely the Constitution had been ratified. The third obvious
alternative was entirely ruled out, namely, a return to the 1935
Constitution, for it was the status quo under that Constitution that had
caused "anarchy, confusion and misery." The message seems clear:
rather than return to such status quo, he would heed the
recommendation of the Citizens' Assemblies to establish a
revolutionary government, because that would be the only other way to
carry out the reforms he had envisioned and initiated — reforms which,
in all fairness and honesty, must be given credit for the improved
quality of life in its many aspects, except only in the field of civil
liberties.

If there is any significance, both explicit and implicit, and certainly
unmistakable, in the foregoing pronouncements, it is that the step
taken in connection with the ratification of the Constitution was meant
to be irreversible, and that nothing anyone could say would make the
least difference. And if this is a correct and accurate assessment of the
situation, then we would say that since it has been brought about by
political action and is now maintained by the government that is in
undisputed authority and dominance, the matter lies beyond the power
of judicial review.
On the other hand, by avowals no less significant if not so emphatic in
terms, President Marcos has professed fealty to the Constitution. In
"Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution as an instrument of
individual and social change ... but that in a democratic society,
revolution is of necessity, constitutional, peaceful, and legal.
In his TV address of September 23, 1972, President Marcos told the
nation:
I have proclaimed martial law in accordance with the powers vested in
the President by the Constitution of the Philippines.
xxx xxx xxx
I repeat, this is not a military takeover of civil government functions.
The Government of the Republic of the Philippines which was
established by our people in 1946 continues.
xxx xxx xxx
I assure you that I am utilizing this power vested in me by the
Constitution to save the Republic and reform our society...
I have had to use this constitutional power in order that we may not
completely lose the civil rights and freedom which we cherish...
... We are against the wall. We must now defend the Republic with the
stronger powers of the Constitution.
(Vital Documents, pp. 1-12; emphasis supplied).
In the report of an interview granted by the President to the Newsweek
Magazine (published in the issue of January 29, 1973), the following
appears:
xxx xxx xxx
Q. Now that you have gotten off the constitutional track, won't
you be in serious trouble if you run into critical problems with your
programs?
R. I have never gotten off the constitutional track. Everything I
am doing is in accordance with the 1935 Constitution. The only thing is
that instead of 18-year-olds voting, we have allowed 15-year-olds the
right to vote. But the 15-year-olds of today are high-school students, if
not graduates, and they are better informed than my contemporaries at
that age. On the matter of whether it is constitutional to proclaim
martial law, it is constitutional because the Constitution provides for it
in the event of invasion, insurrection, rebellion or immediate danger
thereof. We may quarrel about whether what we have gone through is
sufficient cause to proclaim martial law but at the very least there is a
danger of rebellion because so many of our soldiers have been killed.
You must remember this (martial law provision) was lifted from the
American legislation that was the fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of
action to pursue belongs to the President. We have earlier made
reference to subjective factors on which this Court, to our mind, is in no
position to pass judgment. Among them is the President's own
assessment of the will of the people as expressed through the Citizens
Assemblies and of the importance of the 1973 Constitution to the
successful implementation of the social and economic reforms he has
started or envisioned. If he should decide that there is no turning back,
that what the people recommended through the Citizens Assemblies,
as they were reported to him, demand that the action he took pursuant
thereto be final and irrevocable, then judicial review is out of the
question.
In articulating our view that the procedure of ratification that was
followed was not in accordance with the 1935 Constitution and related
statutes, we have discharged our sworn duty as we conceive it to be.
The President should now perhaps decide, if he has not already
decided, whether adherence to such procedure is weighty enough a
consideration, if only to dispel any cloud of doubt that may now and in
the future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated for
resolution is whether or not the new Constitution, since its submission
87
to the Citizens Assemblies, has found acceptance among the people,
such issue being related to the political question theory propounded by
the respondents. We have not tarried on the point at all since we find
no reliable basis on which to form a judgment. Under a regime of
martial law, with the free expression of opinions through the usual
media vehicles restricted, we have no means of knowing, to the point
of judicial certainty, whether the people have accepted the
Constitution. In any event, we do not find the issue decisive insofar as
our vote in these cases is concerned. To interpret the Constitution —
that is judicial. That the Constitution should be deemed in effect
because of popular acquiescence — that is political, and therefore
beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more
than mere reiterations of the Supplemental Petitions filed by Counsel
Lorenzo M. Tañada on January 15, 1973 in the so called Plebiscite
Cases decided by this Court on January 22, 1978. Of course, there are
amplifications of some of the grounds previously alleged and in the
course of the unprecedented five-day hearing that was held from
February 12 to 16 last, more extensive and illuminating arguments
were heard by Us, but, in my estimation, and with due recognition of
the sincerety, brilliance and eloquence of counsels, nothing more
cogent and compelling than what had already been previously
presented by Counsel Tañada is before Us now. Accordingly, I cannot
see any reason why I should change the position I took in regard to the
earlier cases. I reiterate, therefore, the vote I cast when these petitions
were initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues
before the Court and the significance to our people and in history of the
individual stands of the members of the Court in relation to said issues
and to the final outcome of these cases, and considering that I
reserved before the filing of a more extended opinion, I will take this
opportunity to explain further why I hold that the 1973 Constitution is
already in force, if only to clarify that apart from the people's right of
revolution to which I made pointed reference in my previous opinion, I
can see now, after further reflection, that the vote of the people in the
referendum in the Citizens Assemblies held on January 10 to 15, 1973,
upon the result of which Proclamation 1102 is based, may be viewed
more importantly as a political act than as a purely legal one with the
result that such vote to consider the 1973 Constitution as ratified
without the necessity of holding a plebiscite in the form followed in the
previous ratification plebiscites in 1935 of the Constitution itself, 1937
of women's suffrage, 1939 of the amendments to the Ordinance
Appended to the Constitution, 1940 of the re-election of the President,
the bicameral legislature and the Commission on Elections, 1947 of the
parity amendment and 1967, rejecting the proposed increase in the
members of the House of Representatives and eligibility of members of
Congress to the Constitutional Convention, may be deemed as a valid
ratification substantially in compliance with the basic intent of Article
XV of the 1935 Constitution. If indeed this explanation may be
considered as a modification of my rationalization then, I wish to
emphasize that my position as to the fundamental issue regarding the
enforceability of the new Constitution is even firmer now than ever
before. As I shall elucidate anon, paramount considerations of national
import have led me to the conviction that the best interests of all
concerned would be best served by the Supreme Court holding that
the 1973 Constitution is now in force, not necessarily as a
consequence of the revolutionary concept previously suggested by me,
but upon the ground that as a political, more than as a legal, act of the
people, the result of the referendum may be construed as a
compliance with the substantiality of Article XV of the 1935
Constitution.
I
The facts that gave rise to these proceedings are historical and well
known. Generally, they may be taken judicial notice of. They revolve
around the purported ratification of the Constitution of 1973 declared in
Proclamation 1102 issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent
assembly approved on March 16, 1967, delegates to a constitutional
convention to propose amendments to the Constitution of 1935 were
elected in accordance with the implementing law, Republic Act 6132,
on November 10, 1970. Known as the Constitutional Convention of
1971, the assembly began its sessions on June 1, 1971. After
encountering a lot of difficulties, due to bitter rivalries over important
positions and committees and an incomprehensible fear of
overconcentrating powers in their officers, the delegates went about
their work in comparatively slow pace, and by the third quarter of 1972
had finished deliberations and second-reading voting only on an
insignificant number of proposals — until September 21, 1972, when
the President, not altogether unexpectedly, yet abruptly, issued
Proclamation 1081 declaring martial law throughout the country. An
attempt was made to have the Convention recessed until after the
lifting of martial law, and not long after the motion of Delegate Kalaw to
such effect was turned down, the activities within the assembly shifted
to high gear. As if unmindful of the arrest and continued detention of
several of its members, the convention gathered swift momentum in its
work, and on November 30, 1972, it approved by overwhelming vote
the draft of a complete constitution, instead of mere specific
amendments of particular portions of the Constitution of 1935.
Needless to say, before martial law was declared, there was full and
unlimited coverage of the workings in the convention by the mass
media. At the same time, public debates and discussions on various
aspects of proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No.
5843 proposing "to President Ferdinand Marcos that a decree be
issued calling a plebiscite for ratification of the proposed new
Constitution on appropriate date as he shall determine and providing
for necessary funds therefor." Acting under this authority, December 1,
1972, the President issued Presidential Decree No. 73 submitting the
draft constitution for ratification by the people at a plebiscite set for
January 15, 1973. This order contained provisions more or less similar
to the plebiscite laws passed by Congress relative to the past
plebiscites held in connection with previous proposed amendments.
In connection with the plebiscite thus contemplated, General Order No.
17 was issued ordering and enjoining the authorities to allow and
encourage public and free discussions on proposed constitution. Not
only this, subsequently, under date of December 17, 1972, the
President ordered the suspension the effects of martial law and lifted
the suspension of privilege of the writ of habeas corpus insofar as
activities connected with the ratification of the draft constitution were
concerned. These two orders were not, however, to last very long. On
January 7, 1973, the President, invoking information related to him that
the area of public debate and discussion had opened by his previous
orders was being taken advantage of by subversive elements to defeat
the purposes for which they were issued and to foment public
confusion, withdrew said orders and enjoined full and stricter
implementation of martial law.
In the meantime, the President had issued on December 3, 1972
Presidential Decree No. 86 creating Citizens Assemblies "so as to
afford ample opportunities for the citizenry to express their views on
important national issues" and one of the questions presented to said
assemblies was: "Do you like the plebiscite on the proposed
Constitution to be held later" So, the same order of January 7, 1973,
General Order No. 20, the President ordered, "that the plebiscite
scheduled to be held January 15, 1973, be postponed until further
notice".
In the meanwhile also, on January 5, 1973, the President issued
Presidential Decree, No. 86-A providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field
as gathered from barangays (citizens assemblies) that have so far
been established, the people would like to decide for themselves
questions or issues, both local and national, affecting their day-to-day
lives and their future;
WHEREAS, the barangays (citizens assemblies) would like themselves
to be the vehicle for expressing the views of the people on important
national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be
given legal status and due recognition as constituting the genuine,
legitimate and valid expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to conduct
immediately a referendum on certain specified questions such as the
ratification of the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the elections in
November 1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution as
Commander-in-Chief of all Armed Forces of the Philippines, do hereby
declare as part of the law of the land the following:
1. The present barangays (citizens assemblies) are created
under Presidential Decree No. 86 dated December 31, 1972, shall
constitute the base for citizen participation in governmental affairs and
their collective views shall be considered in the formulation of national
policies or programs and, wherever practicable, shall be translated into
concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider vital
national issues now confronting the country, like the holding of the
plebiscite on the new Constitution, the continuation of martial rule, the
convening of Congress on January 22, 1973, and the holding of
elections in November 1973, and others in the future, which shall serve
as guide or basis for action or decision by the national government;
88
3. The barangays (citizens assemblies) shall conduct between
January 10 and 15, 1973, a referendum on important national issues,
including those specified in paragraph 2 hereof, and submit results
thereof to the Department of Local Governments Community
Development immediately thereafter, pursuant to express will of the
people as reflected in the reports gathered from the many thousands of
barangays (citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our
Lord, nineteen hundred and seventy three.
And on January 7, 1973, this was followed by Presidential Decree No.
86-B reading thus:
PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86
dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit them for resolution
important national issues;
WHEREAS, one of the questions persistently mentioned refers to the
ratification of the Constitution proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said petitions, it is evident that the
people believe that the submission of the proposed Constitution to the
Citizens Assemblies or Barangays should be taken as a plebiscite in
itself in view of the fact that freedom of debate has always been limited
to the leadership in political, economic and social fields, and that it is
now necessary to bring this down to the level of the people themselves
through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution,
do hereby order that important national issues shall from time to time
be referred to the Barangays (Citizens Assemblies) for resolution in
accordance with Presidential Decree No. 86-A dated January 5, 1973
and that the initial referendum shall include the matter of ratification of
the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments and
Community Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our
Lord, nineteen hundred and seventy-three.
And so it was that by January 10, 1973, when the Citizens Assemblies
thus created started the referendum which was held from said date to
January 15, 1973, the following questions were submitted to them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the affairs
of the government?.
but on January 11, 1973, six questions were added as follows:
(1) Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interests?
(2) Do you approve of the New Constitution?
(3) Do you want a plebiscite to be called to ratify the new
Constitution?
(4) Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want it to be
called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were
furnished "comments" on the said questions more or less suggestive of
the answer desired. It may assumed that the said "comments" came
from official sources, albeit specifically unidentified. As petitioners point
out, the most relevant of these "comments" were the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoke. Or if it is to
be convened at all, it should not be done so until after at least seven
(7) years from the approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve of the new Constitution then the
new Constitution should be deemed ratified.
The Solicitor General claims, and there seems to be showing
otherwise, that the results of the referendum were determined in the
following manner:
Thereafter, the results of the voting were collated and sent to the
Department of Local Governments. The transmission of the results was
made by telegram, telephone, the provincial government SSB System
in each province connecting all towns; the SSB communication of the
PACD connecting most provinces; the Department of Public
Information Network System; the Weather Bureau Communication
System connecting all provincial capitals and the National Civil
Defense Network connecting all provincial capitals. The certificates of
results were then flown to Manila to confirm the previous figures
received by the aforementioned means of transmission. The
certificates of results tallied with the previous figures taken with the
exception of few cases of clerical errors.
The Department adopted a system of regionalizing the receiving
section of the Citizens Assemblies operation at the Department
wherein the identity of the barrio and the province was immediately
given to a staff in charge of each region. Every afternoon at 2:00
o'clock, the 11 regions submitted the figures they received from the
field to the central committee to tabulate the returns. The last figures
were tabulated at 12 midnight of January 16, 1973 and early morning
of January 17, 1973 and were then communicated to the President by
the Department of Local Governments.
The development culminated in the issuance by the President of
Proclamation 1102 on January 17, 1973. Said proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY
THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY
THE 1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to ratification by the
Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in
municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 6, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or ward for at least six
months, fifteen years of age or over, citizens of the Philippines and
who are registered in the list of Citizen Assembly members kept by the
barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to
broaden the base of citizen participation in the democratic process and
to afford ample opportunity for the citizen to express their views on
important national issues;
WHEREAS, responding to the clamor of the people an pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before Citizens' Assemblies or Barangays: Do
you approve of the New Constitution? Do you still want a plebiscite to
be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five
hundred sixty one (14,976,561) members of all the Barangays
(Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight
hundred sixty nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to
be called to ratify the new Constitution fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered
that there was no need for plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a vote in a
plebiscite;
WHEREAS, since the referendum results show that more than ninety-
five (95) percent of the members of the Barangays (Citizen
Assemblies) are in favor of the New Constitution, the Katipunan ng
Mga Barangay has strongly recommended that the new Constitution
should already be deemed ratified by the Filipino people;
89
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution,
do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
has been ratified by an overwhelmingly majority of all of the votes cast
by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused
the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our
Lord, nineteen hundred and seventy-three.
The first attempt to question the steps just enumerated taken by the
President was in the so-called Plebiscite Cases, ten in number, which
were filed by different petitioners during the first half of December
1972.1 Their common target then was Presidential Decree No. 73, but
before the said cases could be decided, the series of moves tending in
effect to make them moot and academic insofar as they referred
exclusively to the said Presidential Decree began to take shape upon
the issuance of Presidential Decree No. 86-A, quoted above. And
when Presidential Decree No. 86-B, also above quoted, was issued
and the six additional questions which were first publicized on January
11, 1973 were known, together with the "comments", petitioners
sensed that a new and unorthodox procedure was being adopted to
secure approval by the people of the new Constitution, hence Counsel
Tañada, not being satisfied with the fate of his urgent motion for early
decision of the above ten cases dated January 12, 1973, filed on
January 15, 1973, his supplemental motion seeking the prohibition
against and injunction of the proceedings going on. Principal objective
was to prevent that the President be furnished the report of the results
of the referendum and thereby disable him from carrying out what
petitioners were apprehensively foreseeing would be done — the
issuance of some kind of proclamation, order or decree, declaring that
the new Constitution had been ratified. Reacting swiftly, the Court
resolved on the same day, January 15, which was Monday, to consider
the supplemental motion as a supplemental petition and to require the
respondents to answer the same the next Wednesday, January 17th,
before the hour of the hearing of the petition which set for 9:30 o'clock
in the morning of that day. The details what happened that morning
form part of the recital of facts the decision rendered by this Court in
the ten cases on January 22, 1973 and need not be repeated here.
Suffice it to state no that before the hearing could be closed and while
Counsel Tañada was still insisting on his prayer for preliminary
injunction or restraining order, the Secretary of Justice arrived and
personally handed to the Chief Justice a copy Proclamation 1102
which had been issued at about 11:00 o'clock that same morning. In
other words, the valiant and persistent efforts of petitioners and their
counsels were overtaken by adverse developments, and in the mind of
the majority of the members of the Court, the cases had become
academic. For my part, I took the view that even on the basis of the
supplemental petition and the answer thereto filed by respondents, the
Court could already decide on the fundamental issue of the validity
Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also
believed, inasmuch as Counsel Tañada's pleading and argument had
anticipated its issuance, but the majority felt it was not ready to resolve
the matter, for lack, according them, of full ventilation, and so, the
decision reserved petitioners the filing of the "appropriate" cases,
evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although
believed to be inconsequential by my learned brethren, I strongly feel
needs special attention. I refer to the point raised by Counsel Arturo M.
Tolentino for respondent Gil J. Puyat and Jose Roy, who have been
sued as President and President Pro Tempore of the Senate, to the
effect that change in the composition of the Supreme Court provided
for the 1973 Constitution, from the 11-man tribunal under the 1935
Constitution to a 15-man Court, makes of these cases which were filed
after January 17, 1973 the date when Proclamation 1102 declared the
new Constitution as ratified, political nature and beyond our jurisdiction.
The main consideration submitted in this connection is that inasmuch
as the number votes needed for a decision of this Court has been
increased from six to eight in ordinary cases and from eight to ten for
the declaration of unconstitutionality of a treaty, executive agreement2
or law, the Court would have to resolve first as a prejudicial question
whether the Court is acting in these cases as the 15-man or the 11-
man Court, in which event, it would be faced with the dilemma that if it
acts either as the former or as the latter, it would be prejudging the
very matter in issue one way or the other, and, in effect, it would be
choosing between two constitutions, which is a political determination
not within the Court's competence.
While I agree that the problem is at first blush rather involved, I do not
share the view that the premises laid down by counsel necessarily
preclude this Court from taking a definite stand on whether the Court is
acting in these cases as the 15-Man or the 11-man Court. I feel very
strongly that the issue should not be ignored or dodged, if only to make
the world know that the Supreme Court of the Philippines is never
incognizant of the capacity in which it is acting, much less lacking in
courage or wisdom to resolve an issue that relates directly to its own
composition. What a disgrace it would be to admit that this Supreme
Court does not know, to use a common apt expression, whether it is
fish or fowl. Withal, scholars and researchers who might go over our
records in the future will inevitably examine minutely how each of us
voted and upon what considerations we have individually acted, and,
indeed, doubts may arise as to whether or not, despite the general
result we might announce, there had been the requisite number of
votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an
issue of unconstitutionality, hence, if we are acting as the 11-man
Court, only six votes would suffice to declare Proclamation 1102
ineffective, and if upon analysis of our respective opinions it should be
inferable therefrom that six of us have considered the matter before the
Court as justiciable and at the same time have found the procedure of
ratification adopted in Presidential Decrees 86-A and 86-B and related
orders of the President as not being in conformity with Article XV of the
old Constitution, a cloud would exist as to efficacy of the dispositive
portion of Our decision dismiss these cases, even if we have it
understood that by the vote of justices in favor of such dismissal, We
intended to mean the implementation or enforcement of the new
Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to
speculation. By nature I am averse to ambiguity and equivocation and
as a member of the Supreme Court, last thing I should knowingly
countenance is uncertainty as to the juridical significance of any
decision of the Court which is precisely being looked upon as the
haven in which doubts are supposed to be authoritatively dispelled.
Besides, from very nature of things, one thing is indubitably beyond
dispute — we cannot act in both capacities of a 15-man and an 11-
man Court at the same time, in like manner that it is inconceivable that
the 1935 and 1973 Constitution can be considered by Us both in force.
Our inescapable duty is to make a choice between them, according to
what law and other considerations inherent to our function dictate. I
cannot bear the thought that someone may someday say that the
Supreme Court of the Philippines once decided a case without knowing
the basis of its author to act or that it was ever wanting in judicial
courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by
my sense of duty and propriety to straighten out this grave of issue
touching on the capacity in which the Court acting in these cases, I
hold that we have no alternative but adopt in the present situation the
orthodox rule that when validity of an act or law is challenged as being
repugnant constitutional mandate, the same is allowed to have effect
until the Supreme Court rules that it is unconstitutional. Stated
differently, We have to proceed on the assumption that the new
Constitution is in force and that We are acting in these cases as the
15-man Supreme Court provided for there Contrary to counsel's
contention, there is here no prejudgment for or against any of the two
constitutions. The truth of matter is simply that in the normal and logical
conduct governmental activities, it is neither practical nor wise to defer
the course of any action until after the courts have ascertained their
legality, not only because if that were to be the rule, the functioning of
government would correspondingly be undesirably hesitative and
cumbersome, but more importantly, because the courts must at the
first instance accord due respect to the acts of the other departments,
as otherwise, the smooth running of the government would have to
depend entirely on the unanimity of opinions among all its
departments, which is hardly possible, unless it is assumed that only
the judges have the exclusive prerogative of making and enforcing the
law, aside from being its sole interpreter, which is contrary to all norms
of juridical and political thinking. To my knowledge, there is yet no
country in the world that has recognized judicial supremacy as its basic
governmental principle, no matter how desirable we might believe the
idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our
acting on the assumption that this Court is still functioning under the
1935 Constitution. It is undeniable that the whole government,
including the provincial, municipal and barrio units and not excluding
the lower courts up to the Court of Appeals, is operating under the
1973 Constitution. Almost daily, presidential orders and decrees of the
most legislative character affecting practically every aspect of
governmental and private activity as well as the relations between the
government and the citizenry are pouring out from Malacañang under
the authority of said Constitution. On the other hand, taxes are being
exacted and penalties in connection therewith are being imposed
under said orders and decrees. Obligations have been contracted and
business and industrial plans have been and are being projected
pursuant to them. Displacements of public officials and employees in
big numbers are going on in obedience to them. For the ten justices of
the Supreme Court to constitute an island of resistance in the midst of
these developments, which even unreasoning obstinacy cannot ignore,
much less impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the internal
workings within the judiciary amount its different components, what
with the lower courts considering such orders and decrees as forming
part of the law of the land in making their orders and decisions,
whereas the Supreme Court is holding, as it were, their effectivity at
bay if it is not being indifferent to or ignoring them.
90
It is suggested that the President, being a man of law, committed to
abide by the decision of the Supreme Court, and if the Court feels that
it cannot in the meantime consider the enforcement of the new
Constitution, he can wait for its decision. Accepting the truth of this
assertion, it does necessarily follow that by this attitude of the
President, considers the Supreme Court as still operating under the
Constitution. Quite on the contrary, it is a fact that he has given
instructions for the payment of the justices in accordance with the rate
fixed in the New Constitution. Not only that, official alter ego, the
Secretary of Justice, has been shoving this Court, since January 18,
1973, all matters related to the administrative supervision of the lower
courts which by the new charter has been transferred from the
Department of Justice to the Supreme Court, and as far as I know,
President has not countermanded the Secretary's steps in that
direction. That, on the other hand, the President has not augmented
the justices of the Court to complete the prescribed number of fifteen
is, in my appraisal, of no consequence considering that with the
presence of ten justices who are the Court now, there is a working
quorum, and the addition of new justices cannot in anyway affect the
voting on the constitutional questions now before Us because, while
there sufficient justices to declare by their unanimous vote illegality of
Proclamation 1102, the votes of the justices to added would only be
committed to upholding the same, since they cannot by any standard
be expected to vote against legality of the very Constitution under
which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable
and, even imperative, is that We are dealing here with a whole
constitution that radically modifies or alters only the form of our
government from presidential parliamentary but also other
constitutionally institutions vitally affecting all levels of society. It is, to
mind, unrealistic to insist on that, fundamentally, the 1973 Constitution
is the same 1935 Constitution, with a few improvements. A cursory
perusal of the former should convince anyone that it is in essence a
new one. While it does retain republicanism as the basic governmental
tenet, the institutional changes introduced thereby are rather radical
and its social orientation is decidedly more socialistic, just as its
nationalistic features are somewhat different in certain respects. One
cannot but note that the change embraces practically every part of the
old charter, from its preamble down to its amending and effectivity
clauses, involving as they do the statement of general principles, the
citizenship and suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and
responsibilities not only of citizens but also of officers of the
government and the provisions on the national economy as well as the
patrimony of the nation, not to mention the distinctive features of the
general provisions. What is more, the transitory provisions notably
depart from traditional and orthodox views in that, in general, the
powers of government during the interim period are more or less
concentrated in the President, to the extent that the continuation or
discontinuance of what is now practically a one-man-rule, is even left to
his discretion. Notably, the express ratification of all proclamations,
orders, decrees and acts previously issued or done by the President,
obviously meant to encompass those issued during martial law, is a
commitment to the concept of martial law powers being implemented
by President Marcos, in defiance of traditional views and prevailing
jurisprudence, to the effect that the Executive's power of legislation
during a regime of martial law is all inclusive and is not limited to the
matters demanded by military necessity. In other words, the new
constitution unlike any other constitution countenances the institution
by the executive of reforms which normally is the exclusive attribute of
the legislature.
Withal, the best proofs that by its expressed and implied intent, the
Constitution of 1973 is a new one, are that (1) Section 16 of its Article
XVII which provides that this constitution shall "supersede the
Constitution of nineteen hundred and thirty-five and all amendments
thereto" and (2) its transitory provisions expressly continue the
effectivity of existing laws, offices and courts as well as the tenure of all
incumbent officials, not adversely affected by it, which would have
been unnecessary if the old constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that
"(T)he incumbent members of the Judiciary (which include the Chief
Justice and Associate Justices of Supreme Court) may continue in
office (under the constitution) until they reach the age of seventy years,
etc." By virtue of the presumptive validity of the new charter, all of form
part of the 15-man-Court provided for therein correspondingly, We
have in legal contemplation, ceased in the meanwhile to be members
of the 11-man-Court in the 1935 Constitution. Should the Court finally
decide that the Constitution is invalid, then We would automatically
revert to our positions in the 11-man- Court, otherwise, We would just
continue to be in our membership in the 15-man-Court, unless We feel
We cannot in conscience accept the legality of existence. On the other
hand, if it is assumed that We are the 11-man-Court and it happens
that Our collective decision is in favor of the new constitution, it would
be problematical for any dissenting justice to consider himself as
included automatically in the 15-man-Court, since that would
tantamount to accepting a position he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation
1102 is invalid because the ratification of the 1973 Constitution it
purports to declare as having taken place as a result of the referendum
above-referred to is ineffective since it cannot be said on the basis of
the said referendum that said Constitution has been "approved by a
majority of the votes cast at an election" in the manner prescribed by
Article XV the Constitution of 1935. More specifically, they maintain
that the word "election" in the said Article has already acquired a
definite accepted meaning out of the consistent holding in the past of
ratification plebiscites, and accordingly, no other form of ratification can
be considered contemplated by the framers of the Old Constitution
than that which had been followed 1935, 1937, 1939, 1940, 1946 and
1967, the last three or four which were held under the supervision of
the Commission on Elections. Furthermore, they emphatically deny the
veracity of the proclaimed results of the referendum because,
according to them the referendum was a farce and its results were
manufactured or prefabricated, considering that Mr. Francisco Cruz,
who is supposed to have submitted the final report to the President,
which served as basis for Proclamation 1102, had no official authority
to render the same, and it is inconceivable and humanly impossible for
anyone to have been able to gather, tabulate and canvass the 15
million votes allegedly reported within the short period of time
employed. Of course, they also contend that in any event, there was no
proper submission because martial law per se creates constructive
duress which deprives the voters of the complete freedom needed for
the exercise of their right of choice and actually, there was neither time
nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for
the respondents is that the matter raised in the petitions is a political
one which the courts are not supposed to inquire into, and, anyway,
there has been a substantial compliance with Article XV of the 1935
Constitution, inasmuch as, disregarding unessential matters of form,
the undeniable fact is that the voting in the referendum resulted in the
approval by the people of the New Constitution.
I need not dwell at length on these variant positions of the parties. In
my separate opinion in the Plebiscite Cases, I already made the
observation that in view of the lack of solemnity and regularity in the
voting as well as in the manner of reporting and canvassing conducted
in connection with the referendum, I cannot say that Article XV of the
Old Constitution has been complied with, albeit I held that nonetheless,
the Constitution of 1973 is already in force. In order, however, to make
myself clearer on some relevant points, I would like to add a few
considerations to what I have already said in the former cases.
In my opinion in those cases, the most important point I took into
account was that in the face of the Presidential certification through
Proclamation 1102 itself that the New Constitution has been approved
by a majority of the people and having in mind facts of general
knowledge which I have judicial notice of, I am in no position to deny
that the result of the referendum was as the President had stated. I can
believe that the figures referred to in the proclamation may not
accurate, but I cannot say in conscience that all of them are
manufactured or prefabricated, simply because I saw with own eyes
that people did actually gather and listen discussions, if brief and
inadequate for those who are abreast of current events and general
occurrences, and that they did vote. I believe I can safely say that what
I have seen have also been seen by many others throughout the
country and unless it can be assumed, which honestly, I do not believe
to be possible, that in fact there were actually no meetings held and no
voting done in more places than those wherein there were such
meetings and votings, I am not prepared to discredit entirely the
declaration that there was voting and that the majority of the votes
were in favor of the New Constitution. If in fact there were substantially
less than 14 million votes of approval, the real figure, in my estimate,
could still be significant enough and legally sufficient to serve as basis
for a valid ratification.
It is contended, however, that the understanding was that the
referendum among the Citizens Assemblies was to be in the nature
merely of a loose consultation and not an outright submission for
purposes of ratification. I can see that at the outset, when the first set
of questions was released, such may have been the idea. It must not
be lost sight of, however, that if the newspaper reports are to be
believed, and I say this only because petitioners would consider the
newspapers as the official gazettes of the administration, the last set of
six questions were included precisely because the reaction to the idea
of mere consultation was that the people wanted greater direct
participation, thru the Citizens Assemblies, in decision-making
regarding matters of vital national interest. Thus, looking at things more
understandingly and realistically the two questions emphasized by
counsel, namely, (1) Do yo approve of the New Constitution? and (2)
Do you want plebiscite to be called to ratify the new Constitution?
should be considered no longer as loose consultations but as direct
inquiries about the desire of the voters regarding the matters
mentioned. Accordingly, I take it that if the majority had expressed
disapproval of the new Constitution, the logical consequence would
have been the complete abandonment of the idea of holding any
plebiscite at all. On the other hand, it is very plain to see that since the
majority has already approved the new Constitution, a plebiscite would
be superfluous. Clear as these rationalizations may be, it must have
been thought that if the holding of a plebiscite was to be abandoned,
91
there should be a direct and expressed desire of the people to such
effect in order to forestall as much as possible any serious controversy
regarding the non-holding of the plebiscite required by the letter of
Section 16 of Article XVII, the effectivity clause, of the new
Constitution. Oddly enough, the "comments" accompanying the
questions do strongly suggest this view. And as it turned out, the
majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New
Constitution? capital is being made of the point that as so framed, the
thrust of the said question does not seek an answer of fact but of
opinion. It is argued that it would have been factual were it worded
categorically thus — Do you approve the New Constitution? The
contention would have been weighty were it not unrealistic. I remember
distinctly that the observation regarding the construction of the subject
question was not originally made by any of the talented counsels for
petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery
of the English language can rightly be the cause of envy of even
professors of English. None of the other members of the Court, as far
as I can recall, ever noticed how the said question is phrased, or if
anyone of Us did, I am not aware that he gave it more than passing
attention. What I mean is that if neither any of the distinguished and
learned counsels nor any member of the Court understood the said
question otherwise than calling for a factual answer instead of a mere
opinion, how could anyone expect the millions of unlettered members
of the Citizens Assemblies to have noticed the point brought out by
Justice Castro? Truth to tell, I myself did not realize the difference until
Justice Castro gave it emphasis. Besides, reading the question in the
light of the accompanying "comment" corresponding to it in particular, I
am certain that any one who answered the same understood it in no
other sense than a direct inquiry as to whether or not, as a matter of
fact, he approves the New Constitution, and naturally, affirmative
answer must be taken as a categorical vote of approval thereof,
considering, particularly, that according to the reported result of the
referendum said answer was even coupled with the request that the
President defer the convening of the Interim National Assembly.
It is also contended that because of this reference in answer to that
question to the deferment of the convening of the interim assembly, the
said answer is at best a conditional approval not proper nor acceptable
for purposes of ratification plebiscite. The contention has no basis. In
interest of accuracy, the additional answer proposed in pertinent
"comment" reads as follows: "But we do not want Ad Interim Assembly
to be convoked etc." On the assumption that the actual answer, as
reported, was of similar tenor, it is not fair to ascribe to it the imposition
of a condition. At most, the intention is no more than a suggestion or a
wish.
As regards said "comments", it must be considered that a martial law
was declared, the circumstances surrounding making of the
Constitution acquired a different and more meaningful aspect, namely,
the formation of a new society. From the point of view of the President
and on the basis of intelligence reports available to him, the only way
to meet situation created by the subversive elements was to introduce
immediately effective reforms calculated to redeem the people from the
depth of retrogression and stagnation caused by rampant graft and
corruption in high places, influence peddling, oligarchic political
practices, private armies, anarchy, deteriorating conditions of peace
and order, the so inequalities widening the gap between the rich and
the poor, and many other deplorable long standing maladies crying for
early relief and solution. Definitely, as in the case of rebellious
movement that threatened the Quirino Administration, the remedy was
far from using bullets alone. If a constitution was to be approved as an
effective instrument towards the eradication of such grave problems, it
had to be approved without loss of time and sans the cumbersome
processes that, from the realistic viewpoint, have in the past obstructed
rather than hastened the progress of the people. Stated otherwise, in
the context of actualities, the evident objective in having a new
constitution is to establish new directions in the pursuit of the national
aspirations and the carrying out of national policies. Only by bearing
these considerations in mind can the "comments" already referred to
be properly appreciated. To others said "comments" may appear as
evidence of corruption of the will of those who attended the
assemblies, but actually, they may also be viewed in the same light as
the sample ballots commonly resorted to in the elections of officials,
which no one can contend are per se means of coercion. Let us not
forget that the times are abnormal, and prolonged dialogue and
exchange of ideas are not generally possible, nor practical, considering
the need for faster decisions and more resolute action. After all voting
on a whole new constitution is different from voting on one, two or
three specific proposed amendments, the former calls for nothing more
than a collective view of all the provisions of the whole charter, for
necessarily, one has to take the good together with the bad in it. It is
rare for anyone to reject a constitution only because of a few specific
objectionable features, no matter how substantial, considering the ever
present possibility that after all it may be cured by subsequent
amendment. Accordingly, there was need to indicate to the people the
paths open to them in their quest for the betterment of their conditions,
and as long as it is not shown that those who did not agree to the
suggestions in the "comments" were actually compelled to vote against
their will, I am not convinced that the existence of said "comments"
should make any appreciable difference in the court's appraisal of the
result of the referendum.

I must confess that the fact that the referendum was held during martial
law detracts somehow from the value that the referendum would
otherwise have had. As I intimated, however, in my former opinion, it is
not fair to condemn and disregard the result of the referendum barely
because of martial law per se. For one thing, many of the objectionable
features of martial law have not actually materialized, if only because
the implementation of martial law since its inception has been generally
characterized by restraint and consideration, thanks to the expressed
wishes of the President that the same be made "Philippine style",
which means without the rigor that has attended it in other lands and
other times. Moreover, although the restrictions on the freedom of
speech, the press and movement during martial law do have their
corresponding adverse effects on the area of information which should
be open to a voter, in its real sense what "chills" his freedom of choice
and mars his exercise of discretion is suspension of the privilege of the
writ of habeas corpus. The reason is simply that a man may freely and
correctly vote even if the needed information he possesses as to the
candidates or issues being voted upon is more or less incomplete, but
when he is subject to arrest and detention without investigation and
without being informed of the cause thereof, that is something else
which may actually cause him to cast a captive vote. Thus it is the
suspension of the writ of habeas corpus accompanying martial law that
can cause possible restraint on the freedom choice in an election held
during martial law. It is a fact, however, borne by history and actual
experience, that in the Philippines, the suspension of the privilege of
the writ habeas corpus has never produced any chilling effect upon the
voters, since it is known by all that only those who run afoul the law,
saving inconsequential instances, have any cause for apprehension in
regard to the conduct by them of the normal activities of life. And so it
is recorded that in the elections 1951 and 1971, held while the privilege
of writ of habeas corpus was under suspension, the Filipino voters
gave the then opposition parties overwhelming if not sweeping
victories, in defiance of the respective administrations that ordered the
suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to
show that the result of the referendum may considered as sufficient
basis for declaring that the New Constitution has been ratified in
accordance with the amending clause of the 1935 Constitution. I
reiterate that in point of law, I find neither strict nor substantial
compliance. The foregoing discussion is only to counter, if I may,
certain impression regarding the general conditions obtaining during
and in relation to the referendum which could have in one way or
another affected the exercise of the freedom of choice and the use of
discretion by the members of the Citizens Assemblies, to the end that
as far as the same conditions may be relevant in my subsequent
discussions of the acceptance by the people of the New Constitution
they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been
accepted or adopted by the people. And on this premise, my
considered opinion is that the Court may no longer decide these cases
on the basis of purely legal considerations. Factors which are non-legal
but nevertheless ponderous and compelling cannot be ignored, for
their relevancy is inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding
that the question of whether or not there was proper submission under
Presidential Decree No. 73 is justiciable, and I still hold that the
propriety of submission under any other law or in any other form is
constitutionally a fit subject for inquiry by the courts. The ruling in the
decided cases relied upon by petitioners are to this effect. In view,
however, of the factual background of the cases at bar which include
ratification itself, it is necessary for me to point out that when it comes
to ratification, I am persuaded that there should be a boundary beyond
which the competence of the courts no longer has any reason for
being, because the other side is exclusively political territory reserved
for their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by
the people. Others may feel there is not enough indication of such
acceptance in the record and in the circumstances the Court can take
judicial notice of. For my part, I consider it unnecessary to be strictly
judicial in inquiring into such fact. Being personally aware, as I have
already stated, that the Citizens Assemblies did meet and vote, if
irregularly and crudely, it is not for me to resort, for the purposes of
these cases, to judicial tape and measure, to find out with absolute
precision the veracity of the total number of votes actually cast. After
all, the claims that upon a comparison of conflicting reports, cases of
excess votes may be found, even if extrapolated will not, as far as I
can figure out, suffice to overcome the outcome officially announced.
Rather than try to form a conclusion out of the raw evidence before Us
which the parties did not care to really complete, I feel safer by
referring to the results announced in the proclamation itself. Giving
substantial allowances for possible error and downright manipulation, it
must not be overlooked that, after all, their having been accepted and
adopted by the President, based on official reports submitted to him in
due course of performance of duty of appropriate subordinate officials,
elevated them to the category of an act of a coordinate department of
the government which under the principle separation of powers is
92
clothed with presumptive correctness or at least entitled to a high
degree of acceptability, until overcome by better evidence, which in
these cases does not exist. In any event, considering that due to the
unorthodoxy of the procedure adopted and the difficulty of an accurate
checking of all the figures, I am unable to conceive of any manageable
means of acquiring information upon which to predicate a denial, I
have no alternative but to rely on what has been officially declared. At
this point, I would venture to express the feeling that if it were not
generally conceded that there has been sufficient showing of the
acceptance in question by this time, there would have been already
demonstrative and significant indications of a rather widespread, if not
organized resistance in one form or another. Much as they are to be
given due recognition as magnificent manifestations of loyalty and
devotion to principles, I cannot accord to the filing of these cases as
indicative enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning the Court in
Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal
pronouncements to the effect that any amendment to the Constitution
of 1935, to be valid, must appear to have been made in strict
conformity with the requirements of Article XV thereof. What is more,
that decision asserted judicial competence to inquire into the matter of
compliance or non compliance as a justiciable matter. I still believe in
the correctness of those views and I would even add that I sincerely
feel it reflects the spirit of the said constitutional provision. Without
trying to strain any point however, I, submit the following
considerations in the context of the peculiar circumstances of the
cases now at bar, which are entirely different from those in the
backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just
an amendment of a particular provision of an existing Constitution;
here, it is, as I have discussed earlier above, an entirely new
Constitution that is being proposed. This important circumstance
makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy,
who was himself the petitioner in the case I have just referred to is,
now inviting Our attention to the exact language of Article XV and
suggesting that the said Article may be strictly applied to proposed
amendments but may hardly govern the ratification of a new
Constitution. It is particularly stressed that the Article specifically refers
to nothing else but "amendments to this Constitution" which if ratified
"shall be valid as part of this Constitution." Indeed, how can a whole
new constitution be by any manner of reasoning an amendment to any
other constitution and how can it, if ratified, form part of such other
constitution? In fact, in the Tolentino case I already somehow hinted
this point when I made reference in the resolution denying the motion
for reconsideration to the fact that Article XV must be followed "as long
as any amendment is formulated and submitted under the aegis of the
present Charter." Said resolution even added. "(T)his is not to say that
the people may not, in the exercise of their inherent revolutionary
powers, amend the Constitution or promulgate an entirely new one
otherwise.".
It is not strange at all to think that the amending clause of a constitution
should be confined in its application only to proposed changes in any
part of the same constitution itself, for the very fact that a new
constitution is being adopted implies a general intent to put aside the
whole of the old one, and what would be really incongrous is the idea
that in such an eventuality, the new Constitution would subject its going
into effect to any provision of the constitution it is to supersede, to use
the language precisely of Section 6, Article XVII, the effectivity clause,
of the New Constitution. My understanding is that generally,
constitutions are self-born, they very rarely, if at all, come into being, by
virtue of any provision of another constitution. 3 This must be the
reason why every constitution has its own effectivity clause, so that if,
the Constitutional Convention had only anticipated the idea of the
referendum and provided for such a method to be used in the
ratification of the New Constitution, I would have had serious doubts as
to whether Article XV could have had priority of application.
2. When an entirely new constitution is proposed to supersede
the existing one, we cannot but take into consideration the forces and
the circumstances dictating the replacement. From the very nature of
things, the proposal to ordain a new constitution must be viewed as the
most eloquent expression of a people's resolute determination to bring
about a massive change of the existing order, a meaningful
transformation of the old society and a responsive reformation of the
contemporary institutions and principles. Accordingly, should any
question arise as to its effectivity and there is some reasonable
indication that the new charter has already received in one way or
another the sanction of the people, I would hold that the better rule is
for the courts to defer to the people's judgment, so long as they are
convinced of the fact of their approval, regardless of the form by which
it is expressed provided it be reasonably feasible and reliable.
Otherwise stated, in such instances, the courts should not bother about
inquiring into compliance with technical requisites, and as a matter of
policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of
great relevancy. I refer to the ostensible reaction of the component
elements, both collective and individual, of the Congress of the
Philippines. Neither the Senate nor the House of Representatives has
been reported to have even made any appreciable effort or attempt to
convene as they were supposed to do under the Constitution of 1935
on January 22, 1973 for the regular session. It must be assumed that
being composed of experienced, knowledgeable and courageous
members, it would not have been difficult for said parliamentary bodies
to have conceived some ingenious way of giving evidence of their
determined adherence to the Constitution under which they were
elected. Frankly, much as I admire the efforts of the handful of
senators who had their picture taken in front of the padlocked portals of
the Senate chamber, I do not feel warranted to accord such act as
enough token of resistance. As counsel Tolentino has informed the
court, there was noting to stop the senators and the congressmen to
meet in any other convenient place and somehow officially organize
themselves in a way that can logically be considered as a session,
even if nothing were done than to merely call the roll and disperse.
Counsel Tolentino even pointed out that if there were not enough
members to form a quorum, any smaller group could have ordered the
arrest of the absent members. And with particular relevance to the
present cases, it was not constitutionally indispensable for the
presiding officers to issue any call to the members to convene, hence
the present prayers for mandamus have no legal and factual bases.
And to top it all, quite to the contrary, the records of the Commission on
Elections show that at least 15 of 24 senators and over 95 out of less
than 120 members of the House of Representatives, have officially and
in writing exercised the option given to them to join the Interim National
Assembly under the New Constitution, thereby manifesting their
acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three
great departments of the government under the 1935 Constitution, two,
the Executive and the Legislative, have already accepted the New
Constitution and recognized its enforceability and enforcement, I
cannot see how this Supreme Court can by judicial fiat hold back the
political developments taking place and for the sake of being the
guardian of the Constitution and the defender of its integrity and
supremacy make its judicial power prevail against the decision of those
who were duly chosen by the people to be their authorized spokesmen
and representatives. It is not alone the physical futility of such a
gesture that concerns me. More than that, there is the stark reality that
the Senators and the Congressmen, no less than the President, have
taken the same oath of loyalty to the Constitution that we, the Justices,
have taken and they are, therefore, equally bound with Us to preserve
and protect the Constitution. If as the representatives of the people,
they have already opted to accept the New Constitution as the more
effective instrument for fulfillment of the national destiny, I really
wonder if there is even any idealistic worth in our desperately clinging
by Ourselves alone to Our sworn duty vis-a-vis the 1935 Constitution.
Conscious of the declared objectives of the new dispensation and
cognizant of the decisive steps being with the least loss of time,
towards their accomplishment, cannot but feel apprehensive that
instead of serving the best interests of our people, which to me is in
reality the real meaning of our oath of office, the Court might be
standing in the way of the very thing our beloved country needs to
retrieve its past glory and greatness. In other words, it is my conviction
that what these cases demand most of all is not a decision
demonstrative of our legal erudition and Solomonic wisdom but an all
rounded judgment resulting from the consideration of all relevant
circumstances, principally the political, or, in brief, a decision more
political than legal, which a court can render only by deferring to the
apparent judgment of the people and the announcement thereof by the
political departments of the government and declaring the matter non-
justiciable.
4. Viewed from the strictly legal angle and in the light of judicial
methods of ascertainment, I cannot agree with the Solicitor General
that in the legal sense, there has been at least substantial compliance
with Article XV of the 1935 Constitution, but what I can see is that in a
political sense, the answers to the referendum questions were not
given by the people as legal conclusions. I take it that when they
answered that by their signified approval of the New Constitution, they
do not consider it necessary to hold a plebiscite, they could not have
had in mind any intent to do what was constitutionally improper.
Basically accustomed to proceed along constitutional channels, they
must have acted in the honest conviction that what was being done
was in conformity with prevailing constitutional standards. We are not
to assume that the sovereign people were indulging in a futile exercise
of their supreme political right to choose the fundamental charter by
which their lives, their liberties and their fortunes shall be safeguarded.
In other words, we must perforce infer that they meant their decision to
count, and it behooves this Court to render judgment herein in that
context. It is my considered opinion that viewed understandingly and
realistically, there is more than sufficient ground to hold that, judged by
such intent and, particularly, from the political standpoint, the
ratification of the 1973 Constitution declared in Proclamation 1102
complies substantially with Article XV of the 1935 Charter, specially
when it is considered that the most important element of the ratification
therein contemplated is not in the word "election", which conceivably
can be in many feasible and manageable forms but in the word
"approved" which may be said to constitute the substantiality of the
whole article, so long as such approval is reasonably ascertained. In
the last analysis, therefore, it can be rightly said, even if only in a broad
93
sense, that the ratification here in question was constitutionally justified
and justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of
the New Constitution on legal grounds, the same should be dispelled
by viewing the situation in the manner suggested by Counsel Tolentino
and by the writer of this opinion in his separate opinion, oft-referred to
above, in the Plebiscite Cases — that is, as an extra constitutional
exercise by the people, under the leadership of President Marcos, of
their inalienable right to change their fundamental charter by any
means they may deem appropriate, the moment they are convinced
that the existing one is no longer responsive to their fundamental,
political and social needs nor conducive to the timely attainment of
their national destiny. This is not only the teaching of the American
Declaration of Independence but is indeed, a truth that is self-evident.
More, it should be regarded as implied in every constitution that
regardless of the language of its amending clause, once the people
have given their sanction to a new charter, the latter may be deemed
as constitutionally permissible even from the point of view of the
preceding constitution. Those who may feel restrained to consider this
view out of respect to the import of Tolentino vs. Comelec, supra.,
would be well advised to bear in mind that the case was decided in the
context of submission, not accomplished ratification.
V
The language of the disputed amending clause of the 1935
Constitution should not be deemed as the be all and end all the nation.
More important than even the Constitution itself with all its excellent
features, are the people living under it — their happiness, their
posterity and their national destiny. There is nothing that cannot be
sacrificed in the pursuit of these objectives, which constitute the totality
of the reasons for national existence. The sacred liberties and freedom
enshrined in it and the commitment and consecration thereof to the
forms of democracy we have hitherto observed are mere integral parts
of this totality; they are less important by themselves.
What seems to me to be bothering many of our countrymen now is that
by denying the present petitions, the Court would be deemed as
sanctioning, not only the deviations from traditional democratic
concepts and principles but also the qualified curtailment of individual
liberties now being practiced, and this would amount, it is feared, to a
repudiation of our oath to support and defend the Constitution of 1935.
This is certainly something one must gravely ponder upon. When I
consider, however, that the President, the Vice President, the
members of both Houses of Congress, not to speak of all executive
departments and bureaus under them as well as all the lower courts,
including the Court of Appeals have already accepted the New
Constitution as an instrument of a meaningful nationwide-all-level
change in our government and society purported to make more
realistic and feasible, rather than idealistic and cumbersomely
deliberative, the attainment of our national aspirations, I am led to
wonder whether or not we, as members of the Supreme Court are
being true to our duty to our people by refusing to follow suit and
accept the realities of the moment, despite our being convinced of the
sincerity and laudableness of their objectives, only because we feel
that by the people's own act of ratifying the Constitution of 1935, they
have so encased themselves within its provisions and may, therefore,
no longer take measures to redeem themselves from the situation
brought about by the deficiencies of the old order, unless they act in
strict conformity therewith. I cannot believe that any people can be so
stifled and enchained. In any event, I consider it a God-given attribute
of the people to disengage themselves, if necessary, from any
covenant that would obstruct their taking what subsequently appears to
them to be the better road to the promotion and protection of their
welfare. And once they have made their decision in that respect,
whether sophisticatedly or crudely, whether in legal form or otherwise,
certainly, there can be no court or power on earth that can reverse
them.
I would not be human if I should be insensitive to the passionate and
eloquent appeals of Counsels Tañada and Salonga that these cases
be decided on the basis of conscience. That is exactly what I am doing.
But if counsel mean that only by granting their petitions can this Court
be worthily the bulwark of the people's faith in the government, I cannot
agree, albeit my admiration and respect are all theirs for their zeal and
tenacity, their industry and wisdom, their patriotism and devotion to
principle. Verily, they have brought out everything in the Filipino that
these cases demand.
In times of national emergencies and crises, not arising from foreign
invasion, we need not fear playing opposite roles, as long as we are all
animated by sincere love of country and aim exclusively at the
attainment of the national destiny. Our heroes of the past, Rizal,
Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our
patriots of the recent generations, Quezon, Osmeña, Roxas, Laurel
and Recto, to mention only some of them, had their differences of
views — and they did not hesitate to take diametrically opposing sides
— that even reached tragic proportions, but all of them are admired
and venerated.
It is my faith that to act with absolute loyalty to our country and people
is more important than loyalty to any particular precept or provision of
the Constitution or to the Constitution itself. My oath to abide by the
Constitution binds me to whatever course of action I feel sincerely is
demanded by the welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national
unity. May God grant that the controversies the events leading to these
cases have entail will heal after the decision herein is promulgated, so
that all us Filipinos may forever join hands in the pursuit of our national
destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions
for mandamus and prohibition without costs.
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution
prescribes a procedure for the ratification of constitutional amendments
or of a new Constitution and that such procedure was no complied
with, the validity of Presidential Proclamation No. 1102 is a political, not
a justiciable, issue; for it is inseparably or inextricably link with and
strikes at, because it is decisive of, the validity of ratification and
adoption of, as well as acquiescence of people in, the 1973
Constitution and the legitimacy of the government organized and
operating thereunder. And being political, it is beyond the ambit of
judicial inquiry, tested by the definition of a political question
enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside
from the fact the this view will not do violence to rights vested under
the new Constitution, to international commitments forged pursuant
thereto and to decisions rendered by the judicial as well as quasi-
judicial tribunals organized and functioning or whose jurisdiction has
been altered by the 1973 Constitution and the government established
thereunder, and will dissipate any confusion in the minds of the
citizenry, who have been obeying the mandates of the new
Constitution, as well as exercising the rights and performing the
obligations defined by the new Constitution, and decrees and orders
issued in implementation of the same and cooperating with the
administration in the renovation of our social, economic and political
system as re-structured by the 1973 Constitution and by the
implementing decrees and orders (see Miller vs. Johnson, 18 SW 522,
522-526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice,
in behalf of the Court, defined a political question as one which, under
the Constitution, is "to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority had been
delegated to the Legislature or Executive branch of the government."
(Tañada, et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall
be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the
people for ratification." Under Article XV of the 1935 Constitution, the
power to propose constitutional amendments is vested in Congress or
in a constitutional convention; while the power to ratify or reject such
proposed amendments or new Constitution is reserved by the
sovereign people. The nullification of Proclamation No. 1102 would
inevitably render inoperative the 1973 Constitution, which is in fact the
express prayer of the petitioners in G.R. No. L-36164. Regardless of
the modality of submission or ratification or adoption — even if it
deviates from or violates the procedure delineated therefore by the old
Constitution — once the new Constitution is ratified, adopted and/or
acquiesced in by the people or ratified even by a body or agency not
duly authorized therefor but is subsequently adopted or recognized by
the people and by the other official organs and functionaries of the
government established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification, adoption or
acquiescence and of the consequent effectivity of the new Constitution.
This is as it should be in a democracy, for the people are the repository
of all sovereign powers as well as the source of all governmental
authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic
democratic concept is expressly restated in Section 1 of Article II of the
Declaration of Principles of the 1935 and 1973 Constitutions, thus:
"Sovereignty resides in the people and all government authority
emanates from them."
The legality of the submission is no longer relevant; because the
ratification, adoption and/or acquiescence by the people cures any
infirmity in its submission or any other irregularities therein which are
deemed mandatory before submission as they are considered merely
directory after such ratification or adoption or acquiescence by the
people. As Mr. Justice Brewer, then of the Kansas State Supreme
Court and later Associate Justice of the Federal Supreme Court, stated
in re Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint
499, 506): "The two important, vital elements of the Legislature and a
majority of the popular vote. Beyond these, other provisions are mere
machineries and forms. They may not be disregarded, because by
them certainty as to the essentials is secured. But they are not
themselves the essentials." (Cited in Larken vs. Gronna, 285 NW 59,
61-64, 1939).
This was the ruling by the American Supreme Court in the 1939 case
of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief
Justice Hughes, speaking for the majority, stated that:
94
... Thus the political departments of the government dealt with the
effect of both previous rejection and attempted withdrawal and
determined that both were ineffectual in the presence of an actual
ratification ... . This decision by the political departments of the
Government as to the validity of the adoption of the Fourteenth
amendment has been accepted.
We think that in accordance with this historic precedent the question of
the efficacy of ratifications by state legislatures, in the light of previous
rejection or attempted withdrawal, should be regarded as a political
question pertaining to the political departments, with the ultimate
authority in the Congress in the exercise of its control over the
promulgation of the adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his
concurring opinion, in which Mr. Justices Roberts, Frankfurter, and
Douglas join, thus:
The Constitution grants Congress exclusive power to control
submission of constitutional amendments. Final determination by
Congress that ratification by three-fourths of the States has taken place
"is conclusive upon the courts." In the exercise of that power,
Congress, of course, is governed by the Constitution. However,
whether submission, intervening procedure or Congressional
determination of ratification conforms to the commands of the
Constitution, calls for decisions by a "political department" of questions
of a type which this Court has frequently designated "political." And
decision of a "political question" by the "political department" to which
the Constitution has committed it "conclusively binds the judges, as
well as all other officers, citizens and subjects of...government."
Proclamation under authority of Congress that an amendment has
been ratified will carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution commands. Upon this
assurance a proclaimed amendment must be accepted as a part of the
Constitution, leaving to the judiciary its traditional authority of
interpretation. To the extent that the Court's opinion in the present case
even impliedly assumes a power to make judicial interpretation of the
exclusive constitutional authority of Congress over submission and
ratification of amendments, we are unable to agree... (American
Constitutional Issues, by Pritchett, 1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted
by Our Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov.
29, 1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150,
Oct. 16, 1971, 41 SCRA 702) on which petitioners place great reliance
— that the courts may review the propriety of a submission of a
proposed constitutional amendment before the ratification or adoption
of such proposed amendment by the sovereign people, hardly applies
to the cases at bar; because the issue involved in the aforesaid cases
refers to only the propriety of the submission of a proposed
constitutional amendment to the people for ratification, unlike the
present petitions, which challenge inevitably the validity of the 1973
Constitution after its ratification or adoption thru acquiescence by the
sovereign people. As heretofore stated, it is specious and pure
sophistry to advance the reasoning that the present petitions pray only
for the nullification of the 1973 Constitution and the government
operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held
that:
Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative
powers to Congress. It is part of the inherent powers of the people —
as the repository of sovereignty in a republican state, such as ours —
to make, and hence, to amend their own Fundamental Law. Congress
may propose amendments to the same explicitly grants such power.
Hence, when exercising the same, it is said that Senators and
Members of the House of Representatives act, not as members, but as
component elements of a constituent assembly. When acting as such,
the members of Congress derive their authority from the Constitution,
unlike the people, when performing the same function, for their
authority does not emanate from the Constitution — they are the very
source of all powers of government, including the Constitution itself.
(21 SCRA 787)
We did not categorically and entirely overturn the doctrine in Mabanag
vs. Lopez Vito (78 Phil. 1) that both the proposal to amend and the
ratification of such a constitutional amendment are political in nature
forming as they do the essential parts of one political scheme — the
amending process. WE merely stated therein that the force of the
ruling in the said case of Mabanag vs. Lopez Vito has been weakened
by subsequent cases. Thus, We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the
issue submitted thereto as a political one, declined to pass upon the
question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution — which was being
submitted to the people for ratification — satisfied the three fourths
vote requirement of the fundamental law. The force of this precedent
has been weakened, however, by Suanes vs. Chief Accountant of the
Senate, Avelino vs. Cuenco, Tañada vs. Cuenco and Macias vs.
Commission on Elections. In the first, we held the officers and
employees of the Senate Electoral Tribunal are supervision and
control, not of that of the Senate President, claimed by the latter; in the
second, this Court proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third we nullified the
election, by Senators belonging to the party having the largest number
of votes in said chamber purporting to act on behalf of the party having
the second largest number of votes therein, of two (2) Senators
belonging to the first party, as members, for the second party, of the
Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the
representative districts for the House of Representatives, upon the
ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus we
rejected the theory advanced in these four (4) cases, that the issues
therein raised were political questions the determination of which is
beyond judicial review. (21 SCRA pp. 785-786);
for which reason We concluded
In short, the issue whether or not a resolution of Congress before
acting as a constituent assembly — violates the Constitution is
essentially justiciable, not political, and, hence, subject to judicial
review, and to the extent that this view may be inconsistent with the
stand taken in Mabanag vs. Lopez Vito, the latter should be deemed
modified accordingly. (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements
(41 SCRA 703-714).
The inevitable consequence therefore is that the validity of the
ratification or adoption of or acquiescence by the people in the 1973
Constitution, remains a political issue removed from the jurisdiction of
this Court to review.
One more word about the Gonzales and Tolentino cases. Both
primarily stressed on the impropriety of the submission of a proposed
constitutional amendment. Courts do not deal with propriety or wisdom
or absence of either of an official act or of a law. Judicial power
concerns only with the legality or illegality, constitutionality or
unconstitutionality of an act: it inquires into the existence of power or
lack of it. Judicial wisdom is not to be pitted against the wisdom of the
political department of the government.
The classic example of an illegal submission that did not impair the
validity of the ratification or adoption of a new Constitution is the case
of the Federal Constitution of the United States. It should be recalled
that the thirteen (13) original states of the American Union — which
succeeded in liberating themselves from England after the revolution
which began on April 19, 1775 with the skirmish at Lexington,
Massachusetts and ended with the surrender of General Cornwallis at
Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I,
1933 Ed., p. 776) — adopted their Articles of Confederation and
Perpetual Union, that was written from 1776 to 1777 and ratified on
March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six
thereafter, the Congress of the Confederation passed a resolution on
February 21, 1787 calling for a Federal Constitutional Convention "for
the sole and express purpose of revising the articles of confederation
... ." (Appendix I, Federalist, Modern Library ed., p. 577, emphasis
supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII
of the Articles of Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed in every
state, and the union shall be perpetual; nor shall any alterations at any
time hereafter be made in any of them; unless such alteration be
agreed to in a congress of the united states, and be afterwards
confirmed by the legislatures of every state. (See the Federalist,
Appendix II, Modern Library Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of
Confederation and Perpetual Union for the alteration for the ratification
of the Federal Constitution as drafted by the Philadelphia Convention
were not followed. Fearful the said Federal Constitution would not be
ratified by the legislatures as prescribed, the Philadelphia Convention
adopted a resolution requesting the Congress of the Confederation to
pass a resolution providing that the Constitution should be submitted to
elected state conventions and if ratified by the conventions in nine (9)
states, not necessarily in all thirteen (13) states, the said Constitution
shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University
recorded that:
It would have been a counsel of perfection to consign the new
constitution to the tender mercies of the legislatures of each and all of
the 13 states. Experience clearly indicated that ratification then would
have had the same chance as the scriptural camel passing through the
eye of a needle. It was therefore determined to recommend to
Congress that the new Constitution be submitted to conventions in the
95
several states especially elected to pass upon it and that, furthermore,
the new government should go into effect if and when it should be
ratified by nine of the thirteen states ... . (The Federalist, Modern
Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix;
emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians
would be Antifederalist, provided for ratification of the Constitution by
popularly elected conventions in each state. Suspecting that Rhode
Island, at least, would prove recalcitrant, it declared that the
Constitution would go into effect as soon as nine states ratified. The
convention method had the further advantage that judges, ministers,
and others ineligible to state legislatures, could be elected to a
convention. The nine-state provision was, of course, mildly
revolutionary. But the Congress of the Confederation, still sitting in
New York to carry on federal government until relieved, formally
submitted the new constitution to the states and politely faded out
before the first presidential inauguration. (The Oxford History of the
Am. People, by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on
June 21, 1788 and by the last four states on May 29, 1790 (12 C.J. p.
679 footnote, 16 C.J.S., 27. — by the state conventions and not by all
thirteen (13) state legislatures as required by Article XIII of the Articles
of Confederation and Perpetual Union aforequoted — and in spite of
the fact that the Federal Constitution as originally adopted suffers from
two basic infirmities, namely, the absence of a bill of Rights and of a
provision affirming the power of judicial review.
The liberties of the American people were guaranteed by subsequent
amendments to the Federal Constitution. The doctrine of judicial review
has become part of American constitutional law only by virtue of a
judicial pronouncement by Chief Justice Marshall in the case of
Marbury vs. Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of
the ratification of the American Constitution, nor against the legitimacy
of the government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322,
326-330), which enunciated the principle that the validity of a new or
revised Constitution does not depend on the method of its submission
or ratification by the people, but on the fact or fiat or approval or
adoption or acquiescence by the people which fact of ratification or
adoption or acquiescence is all that is essential, the Court cited
precisely the case of the irregular revision and ratification by state
conventions of the Federal Constitution, thus:
No case identical in its facts with the case now under consideration has
been called to our attention, and we have found none. We think that
the principle which we apply in the instant case was very clearly
applied in the creation of the constitution of the United States. The
convention created by a resolution of Congress had authority to do one
thing, and one only, to wit, amend the articles of confederation. This
they did not do, but submitted to the sovereign power, the people, a
new constitution. In this manner was the constitution of the United
States submitted to the people and it became operative as the organic
law of this nation when it had been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the convention that
formulated the constitution of the United States, has this to say: "The
convention proceeded to do, and did accomplish, what they were not
authorized to do by a resolution of Congress that called them together.
That resolution plainly contemplated amendments to the articles of
confederation, to be submitted to and passed by the Congress, and
afterwards ratified by all the State legislatures, in the manner pointed
out by the existing organic law. But the convention soon became
convinced that any amendments were powerless to effect a cure; that
the disease was too deeply seated to be reached such tentative
means. They saw that the system they were called to improve must be
totally abandoned, and that the national idea must be re-established at
the center of their political society. It was objected by some members,
that they had no power, no authority, to construct a new government.
They had no authority, if their decisions were to be final; and no
authority whatsoever, under the articles of confederation, to adopt the
course they did. But they knew that their labors were only to be
suggestions; and that they as well as any private individuals, and any
private individuals as well as they, had a right to propose a plan of
government to the people for their adoption. They were, in fact, a mere
assemblage of private citizens, and their work had no more binding
sanction than a constitution drafted by Mr. Hamilton in his office would
have had. The people, by their expressed will, transformed this
suggestion, this proposal, into an organic law, and the people might
have done the same with a constitution submitted to them by a single
citizen."
xxx xxx xxx
... When the people adopt a completely revised or new constitution, the
framing or submission of the instrument is not what gives it binding
force and effect. The fiat of the people and only the fiat of the people,
can breathe life into a constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never justified in placing by
implication a limitation upon the sovereign. This would be an
authorized exercise of sovereign power by the court. In State v. Swift,
69 Ind. 505, 519, the Indiana Supreme Court said: "The people of a
State may form an original constitution, or abrogate an old one and
form a new one, at any time, without any political restriction except the
constitution of the United States; ... ." (37 SE 327-328, 329, emphasis
supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to pass upon this question,
and were compelled to hold that the act of February 23, 1887, is
unconstitutional and void, it would not, in our opinion, by any means
follow that the amendment is not a part of our state Constitution. In the
recent case of Taylor vs. Commonwealth (Va.) 44 S.E. 754, the
Supreme Court of Virginia hold that their state Constitution of 1902,
having been acknowledged and accepted by the officers administering
the state government, and by the people, and being in force without
opposition, must be regarded as an existing Constitution irrespective of
the question as to whether or not the convention which promulgated it
had authority so to do without submitting it to a vote of the people. In
Brittle v. People, 2 Neb. 198, is a similar holding as to certain
provisions of the Nebraska Constitution of 1886, which were added by
the Legislature at the requirement of Congress, though never
submitted to the people for their approval." (97 NW 349-350; emphasis
supplied).
Against the decision in the Wheeler case, supra, confirming the validity
of the ratification and adoption of the American Constitution, in spite of
the fact that such ratification was in clear violation of the prescription
on alteration and ratification of the Articles of Confederation and
Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most
significant historical fact by calling the Federal Constitution of the
United States as a revolutionary one, invoking the opinion expressed in
Vol. 16, Corpus Juris Secundum, p. 27, that it was a revolutionary
constitution because it did not obey the requirement that the Articles of
Confederation and Perpetual Union can be amended only with the
consent of all thirteen (13) state legislatures. This opinion does not cite
any decided case, but merely refers to the footnotes on the brief
historic account of the United States Constitution on p. 679 of Vol. 12,
CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316
of the Oxford History of the American People, 1965 Ed. by Samuel
Eliot Morison, who discusses the Articles of Confederation and
Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution
Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative
Period in Politics, 1785-1788," Professor Morison delineates the
genesis of the Federal Constitution, but does not refer to it even
implicitly as revolutionary constitution (pp. 297-316). However, the
Federal Constitution may be considered revolutionary from the view
point of McIver if the term revolution is understood in "its wider sense
to embrace decisive changes in the character of government, even
though they do not involve the violent overthrow of an established
order, ... ." (R.M. MacIver, The Web of Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a
revolutionary constitution. The Articles of Confederation and Perpetual
Union that was in force from July 12, 1776 to 1788, forged as it was
during the war of independence was a revolutionary constitution of the
thirteen (13) states. In the existing Federal Constitution of the United
States which was adopted seven (7) or nine (9) years after the thirteen
(13) states won their independence and long after popular support for
the government of the Confederation had stabilized was not a product
of a revolution. The Federal Constitution was a "creation of the brain
and purpose of man" in an era of peace. It can only be considered
revolutionary in the sense that it is a radical departure from its
predecessor, the Articles of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the
United States is not the successor to the Articles of Confederation and
Perpetual Union. The fallacy of the statement is so obvious that no
further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No.
1102 strikes at the validity and enforceability of the 1973 Constitution
and of the government established and operating thereunder.
Petitioners pray for a declaration that the 1973 Constitution is
inoperative (L-36164). If Proclamation No. 1102 is nullified, then there
is no valid ratification of the 1973 Constitution and the inevitable
conclusion is that the government organized and functioning
thereunder is not a legitimate government.
That the issue of the legitimacy of a government is likewise political
and not justiciable, had long been decided as early as the 1849 case of
Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case
of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-
enunciated in 1912 in the case of Pacific States Telephone and
Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56 L.ed. 377-
96
386). Because it reaffirmed the pronouncements in both Borden and
Beckham cases, it is sufficient for us to quote the decision in Pacific
States Telephone and Telegraph Co., supra, penned by Mr. Chief
Justice White, who re-stated:
In view of the importance of the subject, the apparent misapprehension
on one side and seeming misconception on the other, suggested by
the argument as to the full significance of the previous doctrine, we do
not content ourselves with a mere citation of the cases, but state more
at length than we otherwise would the issues and the doctrine
expounded in the leading and absolutely controlling case — Luther v.
Borden, 7 How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this inquiry, proposed by
the plaintiff, and it should be decided that the character government
had no legal existence during the period of time above mentioned, — if
it had been annulled by the adoption of the opposing government, —
then the laws passed by its legislature during that time were nullities;
its taxes wrongfully collected, its salaries and compensations to its
officers illegally paid ; its public accounts improperly settled and the
judgments and sentences of its courts in civil and criminal cases null
and void, and the officers who carried their decisions into operation
answerable as trespassers, if not in some cases as criminals."
xxx xxx xxx
"The fourth section of the fourth article of the Constitution of the United
States shall guarantee to every state in the Union a republican form of
government, and shall protect each of them against invasion; and on
the application of the Legislature or of the Executive (when the
legislature cannot be convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide
what government is established one in a state. For, as the United State
guarantee to each state a republican government, Congress must
necessarily decide what government is established in the state before
it can determine whether it is republican or not. And when the senators
and representatives of a state are admitted into the Councils of the
Union, the authority of the government under which they were
appointed, as well as its republican character, is recognized by the
proper constitutional authority. And its decision is binding on every
other department of the government, and could not be questioned in a
judicial tribunal. It is true that the contest in this case did not last long
enough to bring the matter to this issue; and as no senators or
representatives were elected under the authority of the government of
which Mr. Dorr was the head, Congress was not called upon to decide
the controversy. Yet the right to decide is placed there and not in the
courts."
xxx xxx xxx
... We do not stop to cite other cases which indirectly or incidentally
refer to the subject, but conclude by directing attention to the statement
by the court, speaking through Mr. Chief Justice Fuller, in Taylor vs.
Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009,
where, after disposing of a contention made concerning the 14th
Amendment, and coming to consider a proposition which was
necessary to be decided concerning the nature and effect of the
guaranty of S 4 of article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be read with S 4 of article
4, of the Constitution, providing that the United States shall guarantee
to every state in this Union a republican form of government, and shall
protect each of them against invasion; and on application of the
legislature, or the Executive (when the legislature cannot be
convened), against domestic violence."
xxx xxx xxx
"It was long ago settled that the enforcement of this guaranty belonged
to the political department. Luther v. Borden, 7 How. 1, 12 L.ed. 581. In
that case it was held that the question, which of the two opposing
governments of Rhode Island, namely, the charter government or the
government established by a voluntary convention, was the legitimate
one, was a question for the determination of the political department;
and when that department had decided, the courts were bound to take
notice of the decision and follow it."
xxx xxx xxx
As the issues presented, in their very essence, are, and have long
since by this Court been, definitely determined to be political and
governmental, and embraced within the scope of the scope of the
powers conferred upon Congress, and not, therefore within the reach
of judicial power, it follows that the case presented is not within our
jurisdiction, and the writ of error must therefore be, and it is, dismissed
for want of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the
Constitutional Convention without authority therefor and without
submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and other
government functionaries, as well as by the people. In the 1903 case of
Taylor vs. Commonwealth (44 SE 754-755), the Court ruled:
The sole ground urged in support of the contention that Constitution
proclaimed in 1902 is invalid is that it was ordained and promulgated
by the convention without being submitted for ratification or rejection by
the people of the commonwealth.
The Constitution of 1902 was ordained and proclaimed by convention
duly called by direct vote of the people of the state to revise and
amend the Constitution of 1869. The result of the work that the
convention has been recognized, accepted, and acted upon as the
only valid Constitution of the state by the Governor in swearing fidelity
to it and proclaiming it, as directed thereby; by the Legislature in its
formal official act adopting a joint resolution, July 15, 1902, recognizing
the Constitution ordained by the convention which assembled in the
city of Richmond on the 12th day of June 1901, as the Constitution of
Virginia; by the individual oaths of members to support it, and by its
having been engaged for nearly a year in legislating under it and
putting its provisions into operation but the judiciary in taking the oath
prescribed thereby to support and by enforcing its provisions; and by
the people in their primary capacity by peacefully accepting it and
acquiescing in it, registering as voters under it to the extent of
thousands through the state, and by voting, under its provisions, at a
general election for their representatives in the Congress of the United
States. (p. 755).
The Court in the Taylor case above-mentioned further said:
While constitutional procedure for adoption or proposal to amend the
constitution must be duly followed, without omitting any requisite steps,
courts should uphold amendment, unless satisfied that the Constitution
was violated in submitting the proposal. ... Substance more than form
must be regarded in considering whether the complete constitutional
system for submitting the proposal to amend the constitution was
observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court
stated:
There may be technical error in the manner in which a proposed
amendment is adopted, or in its advertisement, yet, if followed,
unobjected to, by approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission may be made prior to
taking the vote, but, if once sanctioned, the amendment is embodied
therein, and cannot be attacked, either directly or collaterally, because
of any mistake antecedent thereto. Even though it be submitted at an
improper time, it is effective for all purposes when accepted by the
majority. Armstrong v. King, 281 Pa. 207, 126 A. 263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority,
such act becomes valid upon ratification or adoption or acquiescence
by the people. Thus, in the 1905 case of Ex parte Birmingham and
A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court
upheld this principle and stated that: "The authorities are almost
uniform that this ratification of an unauthorized act by the people (and
the people are the principal in this instance) renders the act valid and
binding."
It has likewise been held that it is not necessary that voters ratifying the
new Constitution are registered in the book of voters; it is enough that
they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A
740 [1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370,
375), the Supreme Court of Wisconsin ruled that "irregularity in the
procedure for the submission of the proposed constitutional
amendment will not defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd
769), the Alabama Supreme Court pronounced that "the irregularity in
failing to publish the proposed constitutional amendment once in each
of the 4 calendar weeks next preceding the calendar week in which the
election was held or once in each of the 7-day periods immediately
preceding the day of the election as required by the Constitution, did
not invalidate the amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme
Court in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they
admitted irregularities or illegalities committed in the procedure for
submission of the proposed constitutional amendment to the people for
ratification consisted of: "(a) the alleged failure of the county election
commissioners of the several counties to provide a sufficient number of
ballot boxes 'secured by good and substantial locks,' as provided by
Section 3249, Code of 1942, Rec., to be used in the holding of the
special election on the constitutional amendment, and (b) the alleged
failure of the State Election Commissioners to comply with the
requirements of Code Sections 3204 and 3205 in the appointment of
election commissioners in each of the 82 counties. The irregularities
97
complained of, even if proved, were not such irregularities would have
invalidated the election." (Emphasis supplied; see also Sylvester vs.
Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the
Constitutional Convention and during the deliberations of the
Constitutional Convention from June 1, 1971 until martial law was
proclaimed on Sept. 21, 1972, the salient reforms contained in the
1973 Constitution which have long been desired by the people, had
been thoroughly discussed in the various committees of the
Constitutional Convention, on the floor of the Convention itself, in civic
forums and in all the media of information. Many of the decrees
promulgated by the Chief Executive from Sept. 22, 1972 to Jan. 17,
1973 implement some of the reforms and had been ratified in Sec. 3(2)
of Article XVII of the 1973 Constitution.
Petitioners cannot safely state that during martial law the majority of
the people cannot freely vote for these reforms and are not complying
with the implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had
free elections in 1951 and 1971 when the opposition won six out of
eight senatorial seats despite the suspension of the privileges of the
writ of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971,
42 SCRA 448), which suspension implies constraint on individual
freedom as the proclamation of martial law. In both situations, there is
no total blackout of human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or
Liberals, as well as officials of the Legislative and Executive branches
of the government elected and/or appointed under the 1935
Constitution have either recognized or are now functioning under the
1973 Constitution, aside from the fact of its ratification by the sovereign
people through the Citizens Assemblies. Ninety-five (95) of a total of
one hundred ten (110) members of the House of Representatives
including the Speaker and the Speaker Pro Tempore as well as about
eleven (11) Congressmen who belong to the Liberal Party and fifteen
(15) of a total of twenty-four (24) senators including Liberal senators
Edgar U. Ilarde and John Osmeña opted to serve in the Interim
Assembly, according to the certification of the Commission on
Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated
Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-
36165 close their eyes to a fait accompli. All the other functionaries
recognize the new government and are performing their duties and
exercising their powers under the 1973 Constitution, including the
lower courts. The civil courts, military tribunals and quasi-judicial
bodies created by presidential decrees have decided some criminal,
civil and administrative cases pursuant to such decrees. The foreign
ambassadors who were accredited to the Republic of the Philippines
before martial law continue to serve as such in our country; while two
new ambassadors have been accepted by the Philippines after the
ratification of the 1973 Constitution on January 17, 1973. Copies of the
1973 Constitution had been furnished the United Nations Organization
and practically all the other countries with which the Philippines has
diplomatic relations. No adverse reaction from the United Nations or
from the foreign states has been manifested. On the contrary, our
permanent delegate to the United Nations Organization and our
diplomatic representatives abroad appointed before martial law
continue to remain in their posts and are performing their functions as
such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions
of the 1973 Constitution by requiring all election registrars to register
18-year olds and above whether literates or not, who are qualified
electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of
Annex A to Notes of respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973
Constitution and the government which is enforcing the same for over
10 weeks now With the petitioners herein, secessionists, rebels and
subversives as the only possible exceptions, the rest of the citizenry
are complying with decrees, orders and circulars issued by the
incumbent President implementing the 1973 Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18
SW 522:
If a set of men, not selected by the people according to the forms of
law, were to formulate an instrument and declare it the constitution, it
would undoubtedly be the duty of the courts declare its work a nullity.
This would be revolution, and this the courts of the existing government
must resist until they are overturned by power, and a new government
established. The convention, however, was the offspring of law. The
instrument which we are asked to declare invalid as a constitution has
been made and promulgated according to the forms of law. It is a
matter of current history that both the executive and legislative
branches of the government have recognized its validity as a
constitution, and are now daily doing so. Is the question, therefore, one
of a judicial character? It is our undoubted duty, if a statute be
unconstitutional to so declare it; also, if a provision of the state
constitution be in conflict with the federal constitution, to hold the
former invalid. But this is a very different case. It may be said,
however, that, for every violation of or non-compliance with the law,
there should be a remedy in the courts. This is not, however, always
the case. For instance, the power of a court as to the acts of the other
departments of the government is not an absolute one, but merely to
determine whether they have kept within constitutional limits, it is a
duty rather than a power, The judiciary cannot compel a co-equal
department to perform a duty. It is responsible to the people; but if it
does act, then, when the question is properly presented, it is the duty
of the court to say whether it has conformed to the organic law. While
the judiciary should protect the rights of the people with great care and
jealousy, because this is its duty, and also because, in times of great
popular excitement, it is usually their last resort, yet it should at the
same time be careful to overstep the proper bounds of its power, as
being perhaps equally dangerous; and especially where such
momentous results might follow as would be likely in this instance, if
the power of the judiciary permitted, and its duty required, the
overthrow of the work of the convention.
After the American Revolution the state of Rhode Island retained its
colonial character as its constitution, and no law existed providing for
the making of a new one. In 1841 public meetings were held, resulting
in the election of a convention to form a new one, — to be submitted to
a popular vote. The convention framed one, submitted it to a vote, and
declared it adopted. Elections were held for state officers, who
proceeded to organize a new government. The charter government did
not acquiesce in these proceedings, and finally declared the state
under martial law. It called another convention, which in 1843 formed a
new constitution. Whether the charter government, or the one
established by the voluntary convention, was the legitimate one, was
uniformly held by the courts of the state not to be a judicial, but a
political question; and the political department having recognized the
one, it was held to be the duty of the judiciary to follow its decision. The
supreme court of the United States, in Luther v. Borden, 7 How. 1,
while not expressly deciding the principle, as it held the federal court,
yet in the argument approves it, and in substance says that where the
political department has decided such a matter the judiciary should
abide by it.
Let us illustrate the difficulty of a court deciding the question: Suppose
this court were to hold that the convention, when it reassembled, had
no power to make any material amendment, and that such as were
made are void by reason of the people having theretofore approved the
instrument. Then, next, this court must determine what amendments
were material; and we find the court, in effect, making a constitution.
This would be arrogating sovereignty to itself. Perhaps the members of
the court might differ as to what amendments are material, and the
result would be confusion and anarchy. One judge might say that all
the amendments, material and immaterial, were void; another, that the
convention had then the implied power to correct palpable errors, and
then the court might differ as to what amendments are material. If the
instrument as ratified by the people could not be corrected or altered at
all, or if the court must determine what changes were material, then the
instrument, as passed upon by the people or as fixed by the court
would be lacking a promulgation by the convention; and, if this be
essential, then the question would arise, what constitution are we now
living under, and what is the organic law of the state? A suggestion of
these matters shows what endless confusion and harm to the state
might and likely would arise. If, through error of opinion, the convention
exceeded its power, and the people are dissatisfied, they have ample
remedy, without the judiciary being asked to overstep the proper limits
of its power. The instrument provides for amendment and change. If a
wrong has been done, it can, in the proper way in which it should be
remedied, is by the people acting as a body politic. It is not a question
of whether merely an amendment to a constitution, made without
calling a convention, has been adopted, as required by that
constitution. If it provides how it is to be done, then, unless the manner
be followed, the judiciary, as the interpreter of that constitution, will
declare the amendment invalid. Koehler v. Hill, 60 Iowa, 543, 14 N.W.
Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac.
Rep. 835. But it is a case where a new constitution has been formed
and promulgated according to the forms of law. Great interests have
already arisen under it; important rights exist by virtue of it; persons
have been convicted of the highest crime known to the law, according
to its provisions; the political power of the government has in many
ways recognized it; and, under such circumstances, it is our duty to
treat and regard it as a valid constitution, and now the organic law of
our commonwealth.
We need not consider the validity of the amendments made after the
convention reassembled. If the making of them was in excess of its
powers, yet, as the entire instrument has been recognized as valid in
the manner suggested, it would be equally an abuse of power by the
judiciary and violative of the rights of the people, — who can and
properly should remedy the matter, if not to their liking, — if it were to
declare the instrument of a portion invalid, and bring confusion and
anarchy upon the state. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and
consequently of the adoption of the 1973 Constitution it would be
exercising a veto power on the act of the sovereign people, of whom
this Court is merely an agent, which to say the least, would be
anomalous. This Court cannot dictate to our principal, the sovereign
people, as to how the approval of the new Constitution should be
manifested or expressed. The sovereign people have spoken and we
98
must abide by their decision, regardless of our notion as to what is the
proper method of giving assent to the new Charter. In this respect, WE
cannot presume to know better than the incumbent Chief Executive,
who, unlike the members of this Court, only last January 8, 1973, We
affirmed in Osmeña vs. Marcos (Pres. Election Contest No. 3, Jan. 8,
1973), was re-elected by the vote of over 5 million electors in 1969 for
another term of four years until noon of December 30, 1973 under the
1935 Constitution. This Court, not having a similar mandate by direct
fiat from the sovereign people, to execute the law and administer the
affairs of government, must restrain its enthusiasm to sally forth into
the domain of political action expressly and exclusively reserved by the
sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie
their hands to a specific procedure for popular ratification of their
organic law. That would be incompatible with their sovereign character
of which We are reminded by Section 1, of Article II of both the 1935
and the 1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign
people cannot violate the procedure for ratification which they
themselves define in their Constitution, cannot apply to a unitary state
like the Republic of the Philippines. His opinion expressed in 1868 may
apply to a Federal State like the United States, in order to secure and
preserve the existence of the Federal Republic of the United States
against any radical innovation initiated by the citizens of the fifty (50)
different states of the American Union, which states may be jealous of
the powers of the Federal government presently granted by the
American Constitution. This dangerous possibility does not obtain in
the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868
when he wrote his opus "Constitutional Limitations." * (Vol. 6,
Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were he
live today, in a milieu vastly different from 1868 to 1898, he might have
altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by
the President in Proclamation No. 1102 that the people through their
Citizens' Assemblies had overwhelmingly approved the new
Constitution due regard to a separate, coordinate and co-equal branch
of the government demands adherence to the presumption of
correctness of the President's declaration. Such presumption is
accorded under the law and jurisprudence to officials in the lower
levels of the Executive branch, there is no over-riding reason to deny
the same to the Chief of State as head of the Executive Branch. WE
cannot reverse the rule on presumptions, without being presumptuous,
in the face of the certifications by the Office the Secretary of the
Department of Local Government and Community Development.
(Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with
manifestation filed by the Solicitor General on behalf of the
respondents public officers dated March 7, 1973). There is nothing in
the records that contradicts, much less overthrow the results of the
referendum as certified. Much less are We justified in reversing the
burden of proof — by shifting it from the petitioners to the respondents.
Under the rules on pleadings, the petitioners have the duty to
demonstrate by clear and convincing evidence their claim that the
people did not ratify through the Citizens' Assemblies nor adopt by
acquiescence the 1973 Constitution. And have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by
the cases at bar on the basis of reports relayed to him from private
sources which could be biased and hearsay, aside from the fact that
such reports are not contained in the record. Proclamation No. 1102 is
not just an ordinary act of the Chief Executive. It is a well-nigh solemn
declaration which announces the highest act of the sovereign people
— their imprimatur to the basic Charter that shall govern their lives
hereafter — may be for decades, if not for generations.
Petitioners decry that even 15-year olds, ex convicts and illiterates
were allowed to vote in the Citizens' Assemblies, despite their
admission that the term "Filipino people" in the preamble as well as
"people" in Sections 1 and 5 of Article II of the 1935 Constitution and in
Section 1(3) of Article III of the Bill of Rights includes all Filipino
citizens of all ages, of both sexes, whether literate or illiterate, whether
peaceful citizens, rebels, secessionists, convicts or ex-convicts.
Without admitting that ex-convicts voted in the referendum, about
which no proof was even offered, these sectors of our citizenry, whom
petitioners seem to regard with contempt or decision and whom
petitioners would deny their sovereign right to pass upon the basic
Charter that shall govern their lives and the lives of their progenies, are
entitled as much as the educated, the law abiding, and those who are
21 years of age or above to express their conformity or non conformity
to the proposed Constitution, because their stake under the new
Charter is not any less than the stake of the more fortunate among us.
As a matter of fact, these citizens, whose juridical personality or
capacity to act is limited by age, civil interdiction or ignorance deserve
more solicitude from the State than the rest of the citizenry. In the
ultimate analysis, the inclusion of those from 15 years up to below 21
years old, the ex-convicts and the ignorant, is more democratic as it
broadens the base of democracy and therefore more faithful to the
express affirmation in Section 1 of Article II of the Declaration of
Principles that "sovereignty resides in the people and all government
authority emanates from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote.
Not all ex-convicts are banned from voting. Only those who had been
sentenced to at least one year imprisonment are disenfranchised but
they recover their right of suffrage upon expiration of ten years after
service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore,
ex-convicts and imbeciles constitute a very negligible number in any
locality or barrio, including the localities of petitioners.
Included likewise in the delegated authority of the President, is the
prerogative to proclaim the results of the plebiscite or the voting the
Citizens' Assemblies. Petitioners deny the accuracy or correctness of
Proclamation No. 1102 that the 1973 Constitution was ratified by the
overwhelming vote of close to 15 million citizens because there was no
official certification to the results of the same from the Department of
Local Governments. But there was such certification as per Annex 1 to
1-A to the Notes submitted by the Solicitor General counsel for
respondents public officers. This should suffice to dispose of this point.
Even in the absence of such certification, in much the same way that in
passing law, Congress or the legislative body is presumed to be in
possession of the facts upon which such laws are predicated (Justice
Fernando, The Power of Judicial Review, 1967 Ed., pp. 112-11 citing
Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs.
Hartford, etc., [1931] 282 U.S. 251), it should likewise be presumed
that the President was in possession of the fact upon which
Proclamation No. 1102 was based. This presumption is further
strengthened by the fact that the Department of Local Governments,
the Department National Defense and the Philippine Constabulary as
well the Bureau of Posts are all under the President, which offices as
his alter ego, are presumptively acting for and in behalf of the
President and their acts are valid until disapproved or reprobated by
the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of
Interior, 67 Phil. 451). To deny the truth or the proclamation of the
President as to the overwhelming majority vote in the Citizens'
Assemblies in favor of the new Constitution, is to charge the President
with falsification, which is a most grievous accusation. Under the, rules
of pleadings and evidence, the petitioners have the burden of proof by
preponderance of evidence in civil cases and by proof beyond
reasonable doubt in criminal prosecutions, where the accused is
always presumed to be innocent. Must this constitutional right be
reversed simply because the petitioner all assert the contrary? Is the
rule of law they pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is
accorded by the law and jurisprudence to acts of public officers whose
category in the official hierarchy is very much lower than that of the
Chief of State. What reason is there to withhold such a presumption in
favor of the President? Does the fact that the President belong to the
party in power and that four (4) of the five (5) senators who are
petitioners in L-36165 belong to the opposition party, justify a
discrimination against the President in matters of this nature?
Unsupported as their word is by any credible and competent evidence
under the rules of evidence, must the word of the petitioners prevail
over that of the Chief Executive, because they happen to be former
senators and delegates to the Constitutional Convention? More than
any of the petitioners herein in all these cases, the incumbent
President realizes that he risks the wrath of his people being visited
upon him and the adverse or hostile verdict of history; because of the
restrictions on the civil liberties of his people, inevitable concomitants
of martial law, which necessarily entail some degree of sacrifice on the
part of the citizenry. Until the contrary is established or demonstrated,
herein petitioners should grant that the Chief Executive is motivated by
what is good for the security and stability of the country, for the
progress and happiness of the people. All the petitioners herein cannot
stand on the proposition that the rights under the 1935 Constitution are
absolute and invulnerable to limitations that may be needed for the
purpose of bringing about the reforms for which the petitioners pretend
to be clamoring for and in behalf of the people. The five (5) petitioners
in L-36165 and four (4) of the seven (7) petitioners in L-36164 were all
participants in the political drama of this country since 1946. They are
witness to the frustrations of well-meaning Presidents who wanted to
effect the reforms, especially for the benefit of the landless and the
laboring class — how politics and political bargaining had stymied the
effectuation of such reforms thru legislation. The eight (8) petitioners in
L-36164 and L-36165 may not have participated in the systematic
blocking of the desired reforms in Congress or outside of it; but the
question may be asked as to what exactly they did to support such
reforms. For the last seven (7) decades since the turn of the century,
for the last thirty-five (35) years since the establishment of the
Commonwealth government in 1935 and for the last twenty seven (27)
years since the inauguration of the Republic on July 4, 1946, no
tangible substantial reform had been effected, funded and seriously
implemented, despite the violent uprisings in the thirties, and from
1946 to 1952, and the violent demonstrations of recent memory.
Congress and the oligarchs acted like ostriches, "burying their heads in
timeless sand. "Now the hopes for the long-awaited reforms to be
within a year or to are brighter. It would seem therefore to the duty of
everyone including herein petitioners to give the present leadership the
opportunity to institute and carry out the needed reforms as provided
for in the new or 1973 Constitution and thru the means prescribed in
that same Constitution.
99
As stated in Wheeler vs. Board of Trustees, "a court is never justified in
placing by implication a limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper
sphere and encroached upon the province exclusively reserved to and
by the sovereign people. This Court did not heed to the principle that
the courts are not the fountain of all remedies for all wrongs. WE
cannot presume that we alone can speak with wisdom as against the
judgment of the people on the basic instrument which affects their very
lives. WE cannot determine what is good for the people or ought to be
their fundamental law. WE can only exercise the power delegated to
Us by the sovereign people, to apply and interpret the Constitution and
the laws for the benefit of the people, not against them nor to prejudice
them. WE cannot perform an act inimical to the interest of Our
principal, who at any time may directly exercise their sovereign power
ratifying a new Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function
under the 1935 Constitution without being a part of the government
established pursuant thereto. Unlike in the Borden case, supra, where
there was at least another government claiming to be the legitimate
organ of the state of Rhode Island (although only on paper as it had no
established organ except Dorr who represented himself to be its head;
in the cases at bar there is no other government distinct from and
maintaining a position against the existing government headed by the
incumbent Chief Executive. (See Taylor vs. Commonwealth, supra).
There is not even a rebel government duly organized as such even
only for domestic purposes, let alone a rebel government engaged in
international negotiations. As heretofore stated, both the executive
branch and the legislative branch established under the 1935
Constitution had been supplanted by the government functioning under
the 1973 Constitution as of January 17, 1973. The vice president
elected under the 1935 Constitution does not asset any claim to the
leadership of the Republic of the Philippines. Can this Supreme Court
legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant
in his appraisal of Chief Justice Roger Brooke Taney whom he calls
the "hero of the American Bar," because during the American civil war
he apparently had the courage to nullify the proclamation of President
Lincoln suspending the privileges of the writ of habeas corpus in Ex
parte Merryman (Federal Case No. 9487 [1861]). But who exactly was
Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of
the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657),
briefly recounts that he was born in 1777 in Calvert County, Maryland,
of parents who were landed aristocrats as well as slave owners.
Inheriting the traditional conservatism of his parents who belonged to
the landed aristocracy, Taney became a lawyer in 1799, practiced law
and was later appointed Attorney General of Maryland. He also was a
member of the Maryland state legislature for several terms. He was a
leader of the Federalist Party, which disintegrated after the war of
1812, compelling him to join the Democratic Party of Andrew Jackson,
also a slave owner and landed aristocrat, who later appointed him first
as Attorney General of the United States, then Secretary of the
Treasury and in 1836 Chief Justice of the United States Supreme
Court to succeed Chief Justice John Marshall, in which position he
continued for 28 years until he died on October 21, 1864. His death
"went largely unnoticed and unregretted." Because he himself was a
slave owner and a landed aristocrat, Chief Justice Taney sympathized
with the Southern States and, even while Chief Justice, hoped that the
Southern States would be allowed to secede peacefully from the
Union. That he had no sympathy for the Negroes was revealed by his
decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he
pronounced that the American Negro is not entitled to the rights of an
American citizen and that his status as a slave is determined by his
returning to a slave state. One can therefore discern his hostility
towards President Lincoln when he decided Ex parte Merryman, which
animosity to say the least does no befit a judicial mind. Such a man
could hardly be spoken of as a hero of the American Bar, least of all of
the American nation. The choice of heroes should not be expressed
indiscriminately just to embellish one's rhetoric.
Distinguished counsel in L-36165 appears to have committed another
historical error, which may be due to his rhetorical in the Encyclopedia
Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the
contrary, Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 &
1969 eds., 732-733), refers to Marshal Henri Philippe Petain as the
genuine hero or "Savior of Verdun"; because he held Verdun against
the 1916 offensive of the German army at the cost of 350,000 of his
French soldiers, who were then demoralized and plotting mutiny.
Certainly, the surviving members of the family of Marshal Petain would
not relish the error. And neither would the members of the clan of
Marshal Foch acknowledge the undeserved accolade, although
Marshal Foch has a distinct place in history on his own merits. The
foregoing clarification is offered in the interest of true scholarship and
historical accuracy, so that the historians, researchers and students
may not be led astray or be confused by esteemed counsel's
eloquence and mastery of the spoken and written word as well as by
his eminence as law professor, author of law books, political leader,
and member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-
36164 did not address likewise his challenge to the five (5) senators
who are petitioners in L-36165 to also act as "heroes and idealists," to
defy the President by holding sessions by themselves alone in a hotel
or in their houses if they can muster a quorum or by causing the arrest
of other senators to secure a quorum and thereafter remove
respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83
Phil. 17), if they believe most vehemently in the justice and correctness
of their position that the 1973 Constitution has not been validly ratified,
adopted or acquiesced in by the people since January 18, 1973 until
the present. The proclaimed conviction of petitioners in L-36165 on this
issue would have a ring of credibility, if they proceeded first to hold a
rump session outside the legislative building; because it is not
unreasonable to demand or to exact that he who exhorts others to be
brave must first demonstrate his own courage. Surely, they will not
affirm that the mere filing of their petition in L-36165 already made
them "heroes and idealists." The challenge likewise seems to insinuate
that the members of this Court who disagree with petitioners' views are
materialistic cowards or mercenary fence-sitters. The Court need not
be reminded of its solemn duty and how to perform it. WE refuse to
believe that petitioners and their learned as well as illustrious counsels,
scholars and liberal thinkers that they are, do not recognize the
sincerity of those who entertain opinions that clash with their own.
Such an attitude does not sit well with the dictum that "We can differ
without being difficult; we can disagree without being disagreeable,"
which distinguished counsel in L-36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other
points raised by petitioners, which We do not find now necessary to
deal with in view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE
FIVE CASES SHOULD BE DISMISSED.
MAKASIAR, J., concurring:
Pursuant to Our reservation, We now discuss the other issues raised
by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION,
ADOPTION OR ACQUIESCENCE CREATES STRONG
PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the
proposition that the question as to whether a constitutional amendment
or the revised or new Constitution has been validly submitted to the
people for ratification in accordance with the procedure prescribed by
the existing Constitution, is a justiciable question, accord all
presumption of validity to the constitutional amendment or the revised
or new Constitution after the government officials or the people have
adopted or ratified or acquiesced in the new Constitution or
amendment, although there was an illegal or irregular or no submission
at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935 [1934],
Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369,
74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78 Neb.
379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St.
Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347;
Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga.
496, 30 SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009).
As late as 1971, the courts stressed that the constitutional amendment
or the new Constitution should not be condemned "unless our
judgment its nullity is manifest beyond reasonable doubt" (1971 case of
Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956
case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced
that the presumption of constitutionality must persist in the absence of
factual foundation of record to overthrow such presumption (Ermita-
Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA
849).
III
CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND
INDEPENDENT OF CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well
as independent of, the three grand departments of the Government,
namely, the legislative, the executive and the judicial. As a fourth
separate and distinct branch, to emphasize its independence, the
Convention cannot be dictated to by either of the other three
departments as to the content as well as the form of the Charter that it
proposes. It enjoys the same immunity from interference or supervision
by any of the aforesaid branches of the Government in its proceedings,
including the printing of its own journals (Tañada and Fernando,
Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and
Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit
in that independence, for the purpose of maintaining the same
unimpaired and in order that its work will not be frustrated, the
Convention has the power to fix the date for the plebiscite and to
provide funds therefor. To deny the Convention such prerogative,
100
would leave it at the tender mercy of both legislative and executive
branches of the Government. An unsympathetic Congress would not
be disposed to submit the proposed Constitution drafted by the
Constitutional Convention to the people for ratification, much less
appropriate the necessary funds therefor. That could have been the
fate of the 1973 Constitution, because the same abolished the Senate
by creating a unicameral National Assembly to be presided by a Prime
Minister who wields both legislative and executive powers and is the
actual Chief Executive, for the President contemplated in the new
Constitution exercises primarily ceremonial prerogatives. The new
Constitution likewise shortened abruptly the terms of the members of
the present Congress (whose terms end on December 31, 1973, 1975
and 1977) which provides that the new Constitution shall take effect
immediately upon its ratification (Sec. 16, Article XVII, 1973
Constitution). The fact that Section 2 of the same Article XVIII secures
to the members of Congress membership in the interim National
Assembly as long as they opt to serve therein within thirty (30) days
after the ratification of the proposed Constitution, affords them little
comfort; because the convening of the interim National Assembly
depends upon the incumbent President (under Sec. 3[1], Art. XVII,
1973 Constitution). Under the foregoing circumstances, the members
of Congress, who were elected under the 1935 Constitution, would not
be disposed to call a plebiscite and appropriate funds therefor to
enable the people to pass upon the 1973 Constitution, ratification of
which means their elimination from the political scene. They will not
provide the means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it
is indispensable to its independence and effectiveness, possesses the
power to call a plebiscite and to appropriate funds for the purpose, it
inescapably must have the power to delegate the same to the
President, who, in estimation of the Convention can better determine
appropriate time for such a referendum as well as the amount
necessary to effect the same; for which reason the Convention thru
Resolution No. 29 approved on November 22, 1972, which superseded
Resolution No. 5843 adopted on November 16, 1972, proposed to the
President "that a decree be issued calling a plebiscite for the
ratification of the proposed new Constitution such appropriate date as
he shall determine and providing for the necessary funds therefor, ...,"
after stating in "whereas" clauses that the 1971 Constitutional
Convention expected to complete its work by the end of November,
1972 that the urgency of instituting reforms rendered imperative the
early approval of the new Constitution, and that the national and local
leaders desire that there be continuity in the immediate transition from
the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern
the power to promulgate subordinate rules and regulations to
implement the law, this authority to delegate implementing rules should
not be denied to the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a
plebiscite and to appropriate funds therefor by the Constitutional
Convention thru its Resolution No. 29, the organization of the Citizens'
Assemblies for consultation on national issues, is comprehended within
the ordinance-making power of the President under Section 63 of the
Revised Administrative Code, which expressly confers on the Chief
Executive the power to promulgate administrative acts and commands
touching on the organization or mode of operation of the government
or re-arranging or re-adjusting any district, division or part of the
Philippines "or disposing of issues of general concern ... ." (Emphasis
supplied). Hence, as consultative bodies representing the localities
including the barrios, their creation by the President thru Presidential
Decree No. 86 of December 31, 1972, cannot be successfully
challenged.
The employment by the President of these Citizens' Assemblies for
consultation on the 1973 Constitution or on whether there was further
need of a plebiscite thereon, — both issues of national concern — is
still within the delegated authority reposed in him by the Constitutional
Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded
Resolution No. 5843, does not prescribe that the plebiscite must be
conducted by the Commission on Elections in accordance with the
provisions of the 1971 Revised Election Code. If that were the intention
of the Constitutional Convention in making the delegation, it could have
easily included the necessary phrase for the purpose, some such
phrase like "to call a plebiscite to be supervised by the Commission on
Elections in accordance with the provisions of the 1971 Revised
Election Code (or with existing laws)." That the Constitutional
Convention omitted such phrase, can only mean that it left to the
President the determination of the manner by which the plebiscite
should be conducted, who shall supervise the plebiscite, and who can
participate in the plebiscite. The fact that said Resolution No. 29
expressly states "that copies of this resolution as approved in plenary
session be transmitted to the President of the Philippines and the
Commission on Elections for implementation," did not in effect
designate the Commission on Elections as supervisor of the plebiscite.
The copies of said resolution that were transmitted to the Commission
on Elections at best serve merely to notify the Commission on
Elections about said resolution, but not to direct said body to supervise
the plebiscite. The calling as well as conduct of the plebiscite was left
to the discretion of the President, who, because he is in possession of
all the facts funnelled to him by his intelligence services, was in the
superior position to decide when the plebiscite shall be held, how it
shall be conducted and who shall oversee it.
It should be noted that in approving said Resolution No. 29, the
Constitutional Convention itself recognized the validity of, or validated
Presidential Proclamation No. 1081 placing the entire country under
martial law by resolving to "propose to President Ferdinand E. Marcos
that a decree be issued calling a plebiscite ... ." The use of the term
"decree" is significant for the basic orders regulating the conduct of all
inhabitants are issued in that form and nomenclature by the President
as the Commander in Chief and enforcer of martial law. Consequently,
the issuance by the President of Presidential Decree No. 73 on
December 1, 1972 setting the plebiscite on January 15, 1973 and
appropriating funds therefor pursuant to said Resolution No. 29, is a
valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule-making
power to the Chief Executive or to any of his subalterns, does not need
sufficient standards to circumscribe the exercise of the power
delegated, and is beyond the competence of this Court to nullify. But
even if adequate criteria should be required, the same are contained in
the "Whereas" clauses of the Constitutional Convention Resolution No.
29, thus:
WHEREAS, the 1971 Constitutional Convention is expected to
complete its work of drafting a proposed new Constitution for the
Republic by the end of November, 1972;
WHEREAS, in view of the urgency of instituting reforms, the early
approval of the New Constitution has become imperative;
WHEREAS, it is the desire of the national and local leaders that there
be continuity in the immediate political transition from the old to the
New Constitution;" (Annex "1" of Answer, Res. No. 29, Constitutional
Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo,
Antonio and the writer concurred in the Plebiscite Cases, stated:
... Once this work of drafting has been completed, it could itself direct
the submission to the people for ratification as contemplated in Article
XV of the Constitution. Here it did not do so. With Congress not being
in session, could the President, by the decree under question, call for
such a plebiscite? Under such circumstances, a negative answer
certainly could result in the work of the Convention being rendered
nugatory. The view has been repeatedly expressed in many American
state court decisions that to avoid such undesirable consequence the
task of submission becomes ministerial, with the political branches
devoid of any discretion as to the holding of an election for that
purpose. Nor is the appropriation by him of the amount necessary to be
considered as offensive to the Constitution. If it were done by him in his
capacity as President, such an objection would indeed have been
formidable, not to say insurmountable. If the appropriation were made
in his capacity as agent of the Convention to assure that there be
submission to the people, then such an argument loses force. The
Convention itself could have done so. It is understandable why it
should be thus. If it were otherwise, then a legislative body, the
appropriating arm of the government, could conceivably make use of
such authority to compel the Convention to submit to its wishes, on
pain of being rendered financially distraught. The President then, if
performing his role as its agent, could be held as not devoid of such
competence. (pp. 2-3, concurring opinion of J. Fernando in L-35925,
etc., emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE
1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete,
and alluded to their arguments during the hearings on December 18
and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable
or ambiguous provisions does not affect the validity of the ratification or
adoption of the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d
841; 7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the
American Constitution, answering the critics of the Federal
Constitution, stated that: "I never expect to see a perfect work from
imperfect man. The result of the deliberations of all collective bodies
must necessarily be a compound, as well of the errors and prejudices
as of the good sense and wisdom, of the individuals of whom they are
composed. The compacts which are to embrace thirteen distinct States
in a common bond of amity and union, must necessarily be a
compromise of as many dissimilar interests and inclinations. How can
perfection spring from such materials?" (The Federalist, Modern
Library Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground
that it contains provisions which are ultra vires or beyond the power of
the Constitutional Convention to propose.
101
This objection relates to the wisdom of changing the form of
government from Presidential to Parliamentary and including such
provisions as Section 3 of Article IV, Section 15 of Article XIV and
Sections 3(2) and 12 of Article XVII in the 1973 Constitution.
Article IV —
Sec. 3. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall not be violated, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible officer
as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses may produce, and
particularly describing the place to be searched, and the persons or
things to be seized.
Article XIV —
Sec. 15. Any provision of paragraph one, Section fourteen, Article
Eight and of this Article notwithstanding, the Prime Minister may enter
into international treaties or agreements as the national welfare and
interest may require." (Without the consent of the National Assembly.)
Article XVII —
Sec. 3(2) All proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part
of the law of the land, and shall remain valid, legal, binding and
effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent
proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or
repealed by the regular National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and contracts entered
into by the Government, or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations, are
hereby recognized as legal, valid and binding. When the national
interest so requires, the incumbent President of the Philippines or the
interim Prime Minister may review all contracts, concessions, permits,
or other forms of privileges for the exploration, development,
exploitation, or utilization of natural resources entered into, granted,
issued or acquired before the ratification of this Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-
35948, L-35953, L-35961, L-35965, & L-35979), Chief Justice Roberto
Concepcion, concurred in by Justices Fernando, Barredo, Antonio and
the writer, overruled this objection, thus:
... Regardless of the wisdom and moral aspects of the contested
provisions of the proposed Constitution, it is my considered view that
the Convention was legally deemed fit to propose — save perhaps
what is or may be insistent with what is now known, particularly in
international law, as Jus Cogens — not only because the Convention
exercised sovereign powers delegated thereto by the people —
although insofar only as the determination of the proposals to be made
and formulated by said body is concerned — but also, because said
proposals cannot be valid as part of our Fundamental Law unless and
until "approved by the majority of the votes cast at an election which"
said proposals "are submitted to the people for their ratification," as
provided in Section 1 of Article XV of the 1935 Constitution. (Pp. 17-18,
Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476,
Oct. 20, 1970, 35 SCRA 367) that the Constitutional Convention has
the authority to "entirely overhaul the present Constitution and propose
an entirely new Constitution based on an ideology foreign to the
democratic system ...; because the same will be submitted to the
people for ratification. Once ratified by the sovereign people, there can
be no debate about the validity of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited
the foregoing pronouncement in the Del Rosario case, supra, and
added: "... it seems to me a sufficient answer that once convened, the
area open for deliberation to a constitutional convention ..., is
practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa
543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan
v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO
297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313
[1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State
v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper,
292 P 365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247
NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases,
expressed the view "that when the people elected the delegates to the
Convention and when the delegates themselves were campaigning,
such limitation of the scope of their function and objective was not in
their minds."

V the session of the legislature at which the amendments are proposed
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention
adjourned on November 30, 1972 without officially promulgating the
said Constitution in Filipino as required by Sections 3(1) of Article XV
on General Provisions of the 1973 Constitution. This claim is without
merit because their Annex "M" is the Filipino version of the 1973
Constitution, like the English version, contains the certification by
President Diosdado Macapagal of the Constitutional Convention, duly
attested by its Secretary, that the proposed Constitution, approved on
second reading on the 27th day of November, 1972 and on third
reading in the Convention's 291st plenary session on November 29,
1972 and accordingly signed on November 1972 by the delegates
whose signatures are thereunder affixed. It should be recalled that
Constitutional Convention President Diosdado Macapagal was, as
President of the Republic 1962 to 1965, then the titular head of the
Liberal Party to which four (4) of the petitioners in L-36165 including
their counsel, former Senator Jovito Salonga, belong. Are they
repudiating and disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that
"such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such
amendments shall be valid as part of this Constitution when approved
by a majority of the votes cast at an election called by Congress at
which the amendments are submitted for ratification by the qualified
electors defined in Article V hereof, supervised by the Commission on
Elections in accordance with the existing election law and after such
amendments shall have been published in all the newspapers of
general circulation for at least four months prior to such election."
This position certainly imposes limitation on the sovereign people, who
have the sole power of ratification, which imposition by the Court is
never justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and
tortured construction Article XV of the 1935 Constitution. This is a clear
case of usurpation of sovereign power they do not possess — through
some kind of escamotage. This Court should not commit such a grave
error in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission,
due to absence of substantial compliance with the procedure
prescribed by the Constitution and/or the law, nullifies the proposed
amendment or the new Constitution, the procedure prescribed by the
state Constitution is so detailed that it specifies that the submission
should be at a general or special election, or at the election for
members of the State legislature only or of all state officials only or of
local officials only, or of both state and local officials; fixes the date of
the election or plebiscite limits the submission to only electors or
qualified electors; prescribes the publication of the proposed
amendment or a new Constitution for a specific period prior to the
election or plebiscite; and designates the officer to conduct the
plebiscite, to canvass and to certify the results, including the form of
the ballot which should so state the substance of the proposed
amendments to enable the voter to vote on each amendment
separately or authorizes expressly the Constitutional Convention or the
legislature to determine the procedure or certain details thereof. See
the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas
[1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia
[1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861];
Kentucky [1891]; Louisiana [1921]; Maryland [1867]; Massachusetts
[1790]; Michigan [1909]; Minnesota [1857]; Mississippi [1890]; and
Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may be proposed to this
Constitution by the legislature in the manner following: The proposed
amendments shall be read in the house in which they originate on
three several days, and, if upon the third reading, three-fifths of all the
members elected to that house shall vote in favor thereof, the
proposed amendments shall be sent to the other house, in which they
shall likewise be read on three several days, and if upon the third
reading, three-fifths of all the members elected that house shall vote in
favor of the proposed amendments, the legislature shall order an
election by the qualified electors of the state upon such proposed
102
amendments, to be held either at the general election next succeeding
or upon another day appointed by the legislature, not less than three
months after the final adjournment of the session of the legislature at
which the amendments were proposed. Notice of such election,
together with the proposed amendments, shall be given by
proclamation of the governor, which shall be published in every county
in such manner as the legislature shall direct, for at least eight
successive weeks next preceding the day appointed for such election.
On the day so appointed an election shall be held for the vote of the
qualified electors of the state upon the proposed amendments. If such
election be held on the day of the general election, the officers of such
general election shall open a poll for the vote of the qualified electors
upon the proposed amendments; if it be held on a day other than that
of a general election, officers for such election shall be appointed; and
the election shall be held in all things in accordance with the law
governing general elections. In all elections upon such proposed
amendments, the votes cast thereat shall be canvassed, tabulated,
and returns thereof be made to the secretary of state, and counted, in
the same manner as in elections for representatives to the legislature;
and if it shall thereupon appear that a majority of the qualified electors
who voted at such election upon the proposed amendments voted in
favor of the same, such amendments shall be valid to all intents and
purposes as parts of this Constitution. The result of such election shall
be made known by proclamation of the governor. Representation in the
legislature shall be based upon population, and such basis of
representation shall not be changed by constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon the ballots used at all
elections provided for in section 284 of this Constitution, the substance
or subject matter of each proposed amendment shall be so printed that
the nature thereof shall be clearly indicated. Following each proposed
amendment on the ballot shall be printed the word "Yes" and
immediately under that shall be printed the word "No". The choice of
the elector shall be indicated by a cross mark made by him or under
his direction, opposite the word expressing his desire, and no
amendment shall be adopted unless it receives the affirmative vote of a
majority of all the qualified electors who vote at such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either branch of the General
Assembly at a regular session thereof may propose amendments to
this Constitution, and, if the same be agreed to by a majority of all the
members, elected to each house, such proposed amendments shall be
entered on the journal with the yeas and nays, and published in at least
one newspaper in each county, where a newspaper is published, for
six months immediately preceding the next general election for
Senators and Representatives, at which time the same shall be
submitted to the electors of the State for approval or rejection, and if a
majority of the electors voting at such election adopt such
amendments, the same shall become a part of this Constitution; but no
more than three amendments shall be proposed or submitted at the
same time. They shall be so submitted as to enable the electors to vote
on each amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications; elections.
Propositions for the amendment of this constitution may be made by
either branch of the legislature; and if two thirds of all the members
elected to each house shall concur therein, such proposed
amendments, together with the yeas and nays, shall be entered on the
journal; and the secretary of state shall cause the same to be
published in at least one newspaper in each county of the state where
a newspaper is published, for three months preceding the next election
for representatives, at which time, the same shall be submitted to the
electors, for their approval or rejection; and if a majority of the electors
voting on said amendments, at said election, shall adopt the
amendments, the same shall become a part of the constitution. When
more than one amendment shall be submitted at the same time, they
shall be so submitted as to enable the electors to vote on each
amendments separately; and not more than three propositions to
amend shall be submitted at the same election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly; publication; submission to
voters; governor's proclamation. The General Assembly may propose
Amendments to this Constitution; provided that each Amendment shall
be embraced in a separate bill, embodying the Article or Section, as
the same will stand when amended and passed by three fifths of all the
members elected to each of the two Houses, by yeas and nays, to be
entered on the Journals with the proposed Amendment. The bill or bills
proposing amendment or amendments shall be published by order of
the Governor, in at least two newspapers, in each County, where so
many may be published, and where not more than one may be
published, then in the newspaper, and in three newspapers published
in the City of Baltimore, once a week for four weeks immediately
preceding the next ensuing general election, at which the proposed
amendment or amendments shall be submitted, in a form to be
prescribed by the General Assembly, to the qualified voters of the
State for adoption or rejection. The votes cast for and against said
proposed amendment or amendments, severally, shall be returned to
the Governor, in the manner prescribed in other cases, and if it shall
appear to the Governor that a majority of the votes cast at said election
on said amendment or amendments, severally, were cast in favor
thereof, the Governor shall, by his proclamation, declare the said
amendment or amendments having received said majority of votes, to
have been adopted by the people of Maryland as part of the
Constitution thereof, and henceforth said amendment or amendments
shall be part of the said Constitution. When two or more amendments
shall be submitted in the manner aforesaid, to the voters of this State
at the same election, they shall be so submitted as that each
amendment shall be voted on separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by general assembly
or by the initiative. All amendments proposed by the general assembly
or by the initiative shall be submitted to the electors for their approval
or rejection by official ballot title as may be provided by law, on a
separate ballot without party designation, at the next general election,
or at a special election called by the governor prior thereto, at which he
may submit any of the amendments. No such proposed amendment
shall contain more than one amended and revised article of this
constitution, or one new article which shall not contain more than one
subject and matters properly connected therewith. If possible, each
proposed amendment shall be published once a week for two
consecutive weeks in two newspapers of different political faith in each
county, the last publication to be not more than thirty nor less than
fifteen days next preceding the election. If there be but one newspaper
in any county, publication of four consecutive weeks shall be made. If a
majority of the votes cast thereon is in favor of any amendment, the
same shall take effect at the end of thirty days after the election. More
than one amendment at the same election shall be so submitted as to
enable the electors to vote on each amendment separately.
Article XV of the 1935 Constitution does not require a specific
procedure, much less a detailed procedure for submission or
ratification. As heretofore stated, it does not specify what kind of
election at which the new Constitution shall be submitted; nor does it
designate the Commission on Elections to supervise the plebiscite.
Neither does it limit the ratification to the qualified electors as defined in
Article V of the 1935 Constitution. Much less does it require the
publication of the proposed Constitution for any specific period before
the plebiscite nor does it even insinuate that the plebiscite should be
supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure
for submission of the proposed Constitution to the people for
ratification. It does not make any reference to the Commission on
Elections as the body that shall supervise the plebiscite. And Article XV
could not make any reference to the Commission on Elections because
the original 1935 Constitution as ratified on May 14, 1935 by the
people did not contain Article X on the Commission on Elections, which
article was included therein pursuant to an amendment by that National
Assembly proposed only about five (5) years later — on April 11, 1940,
ratified by the people on June 18, 1940 as approved by the President
of the United States on December 1940 (see Sumulong vs.
Commission, 70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law, 1966
ed., p. 13). So it cannot be said that the original framers of the 1935
Constitution as ratified May 14, 1935 intended that a body known as
the Commission on Elections should be the one to supervise the
plebiscite, because the Commission on Elections was not in existence
then as was created only by Commonwealth Act No. 607 approved on
August 22, 1940 and amended by Commonwealth Act No. 657
approved on June 21, 1941 (see Tañada & Carreon, Political Law of
the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs.
Commission, 170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada &
Fernando, Constitution of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II,
pp. 11-19).
Because before August, 1940 the Commission on Election was not yet
in existence, the former Department of Interior (now Department of
Local Governments and Community Development) supervised the
plebiscites on the 1937 amendment on woman's suffrage, the 1939
amendment to the Ordinance appended to the 1935 Constitution
(Tydings-Kocialkowski Act of the U.S. Congress) and the three 1940
amendments on the establishment of a bicameral Congress, the re-
election of the President and the Vice-President, and the creation of
the Commission on Elections (ratified on June 18, 1940). The
supervision of said plebiscites by the then Department of Interior was
not automatic, but by virtue of an express authorization in
Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on
Elections should also supervise the plebiscite for ratification of
103
constitutional amendments or revision, it should have likewise
proposed the corresponding amendment to Article XV by providing
therein that the plebiscite on amendments shall be supervised by the
Commission on Elections.
3) If the framers of the 1935 Constitution and the people in
ratifying the same on May 14, 1935 wanted that only the qualified
voters under Article V of the 1935 Constitution should participate in the
referendum on any amendment or revision thereof, they could have
provided the same in 1935 or in the 1940 amendment by just adding a
few words to Article XV by changing the last phrase to "submitted for
ratification to the qualified electors as defined in Article V hereof," or
some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to
exclusively refer to the qualified electors under Article V of the 1935
Constitution because the said term "people" as used in several
provisions of the 1935 Constitution, does not have a uniform meaning.
Thus in the preamble, the term "Filipino people" refer, to all Filipino
citizens of all ages of both sexes. In Section 1 of Article II on the
Declaration of Principles, the term "people" in whom sovereignty
resides and from whom all government authority emanates, can only
refer also to Filipino citizens of all ages and of both sexes. But in
Section 5 of the same Article II on social justice, the term "people"
comprehends not only Filipino citizens but also all aliens residing in the
country of all ages and of both sexes. Likewise, that is the same
connotation of the term "people" employed in Section 1(3) of Article III
on the Bill of Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a
right to the electorate, it does so expressly as the case of the election
of senators and congressmen. Section 2 Article VI expressly provides
that the senators "shall be chosen at large by the qualified electors of
the Philippines as may provided by law." Section 5 of the same Article
VI specifically provides that congressmen shall "be elected by the
qualified electors." The only provision that seems to sustain the theory
of petitioners that the term "people" in Article XV should refer to the
qualified electors as defined in Article V of the 1935 Constitution is the
provision that the President and Vice-President shall be elected "by
direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution).
But this alone cannot be conclusive as to such construction, because
of explicit provisions of Sections 2 and 5 of Article VI, which specifically
prescribes that the senators and congressmen shall be elected by the
qualified electors.
As aforesaid, most of the constitutions of the various states of the
United States, specifically delineate in detail procedure of ratification of
amendments to or revision of said Constitutions and expressly require
ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending
Process of the 1934-35 Constitutional Convention satisfied that the
amendment shall be submitted to qualified election for ratification. This
proposal was not accepted indicating that the 1934-35 Constitutional
Convention did intend to limit the term "people" in Article XV of the
1935 Constitution to qualified electors only. As above demonstrated,
the 1934-35 Constitutional Convention limits the use of the term
"qualified electors" to elections of public officials. It did not want to tie
the hands of succeeding future constitutional conventions as to who
should ratify the proposed amendment or revision.
(4) It is not exactly correct to opine that Article XV of 1935
Constitution on constitutional amendment contemplates the automatic
applicability of election laws to plebiscites on proposed constitutional
amendments or revision.
The very phraseology of the specific laws enacted by the National
Assembly and later by Congress, indicates that there is need of a
statute expressly authorizing the application of the election laws to
plebiscites of this nature. Thus, Com. Act No. 34 on the woman's
suffrage amendment enacted on September 30, 1936, consists of 12
sections and, aside from providing that "there shall be held a plebiscite
on Friday, April 30, 1937, on the question of woman's suffrage ... and
that said amendment shall be published in the Official Gazette in
English and Spanish for three consecutive issues at least fifteen (15)
days prior to said election, ... and shall be posted in a conspicuous
place in its municipal and provincial office building and in its polling
place not later than April 22, 1937" (Sec. 12, Com. Act No. 34),
specifies that the provisions of the Election Law regarding, the holding
of a special election, insofar as said provisions are not in conflict with it,
should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and,
that the votes cast according to the returns of the board of inspectors
shall be counted by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections
392-483 of the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on
August 22, 1938, makes it expressly applicable to plebiscites. Yet the
subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act
No. 73 calling for the plebiscite on the constitutional amendments in
1939, 1940 and 1946, including the amendment creating the
Commission on Elections, specifically provided that the provisions of
the existing election law shall apply to such plebiscites insofar as they
are not inconsistent with the aforesaid Com. Act Nos. 492 and 517, as
well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19, 1939, calling
for a plebiscite on the proposed amendments to the Constitution
adopted by the National Assembly on September 15, 1939, consists of
8 sections and provides that the proposed amendments to the
Constitution adopted in Resolution No. 39 on September 15, 1939
"shall be submitted to the Filipino people for approval or disapproval at
a general election to be held throughout the Philippines on Tuesday,
October 24, 1939"; that the amendments to said Constitution proposed
in "Res. No. 38, adopted on the same date, shall be submitted at
following election of local officials," (Sec. 1, Com. Act No. 492) that the
said amendments shall be published in English and Spanish in three
consecutive issues of the Official Gazette at least ten (10) days prior to
the elections; that copies thereof shall be posted not later than October
20, 1939 (Sec. 2, Com. Act 492); that the election shall be conducted
according to provisions of the Election Code insofar as the same may
be applicable; that within thirty (30) days after the election, Speaker of
the National Assembly shall request the President to call a special
session of the Assembly for the purpose of canvassing the returns and
certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved
on April 25, 1940 and provided, among others: that the plebiscite on
the constitutional amendments providing bicameral Congress, re-
election of the President and Vice-President, and the creation of a
Commission on Elections shall be held at a general election on June
18, 1940 (Sec. 1); that said amendments shall be published in three
consecutive issues of the Official Gazette in English and Spanish at
least 20 days prior to the election and posted in every local
government office building and polling place not later than May 18,
1940 (Sec. 2); that the election shall be conducted in conformity with
the Election Code insofar as the same may be applicable (Sec. 3) that
copies of the returns shall be forwarded to the Secretary of National
Assembly and the Secretary of Interior (Sec. 7); that the National
Assembly shall canvass the returns to certify the results at a special
session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a
plebiscite on the parity amendment consists of 8 sections provides that
the Amendment "shall be submitted to the people, for approval or
disapproval, at a general election which shall be held on March 11,
1947, in accordance with the provisions of this Act" (Sec. 1, R.A. No.
73); that the said amendment shall be published in English and
Spanish in three consecutive issues of the Official Gazette at least 20
days prior to the election; that copies of the same shall be posted in a
conspicuous place and in every polling place not later than February
11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No.
357 (Election Code) and Com. Act No. 657 creating the Commission
on Elections, shall apply to the election insofar as they are not
inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days
after the election, the Senate and House of Representatives shall hold
a joint session to canvass the returns and certify the results thereof
(Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935
Constitution does not contemplate nor envision the automatic
application of the election law; and even at that, not all the provisions
of the election law were made applicable because the various laws
aforecited contain several provisions which are inconsistent with the
provisions of the Revised Election Code (Com. Act No. 357).
Moreover, it should be noted that the period for the publication of the
copies of the proposed amendments was about 10 days, 15 days or 20
days, and for posting at least 4 days, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the
Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as
amended, and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of
the 1935 Constitution, there would be no need for Congress to
expressly provide therefor in the election laws enacted after the
inauguration of the Commonwealth government under the 1935
Constitution.
(5) Article XV of the 1935 Constitution does not specify who can
vote and how they shall vote. Unlike the various State Constitutions of
the American Union (with few exceptions), Article XV does not state
that only qualified electors can vote in the plebiscite. As above-
intimated, most of the Constitutions of the various states of the United
States provide for very detailed amending process and specify that
only qualified electors can vote at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known
as the Barrio Charter, which was approved on June 17, 1967 and
superseded Republic Act No. 2370, expanded the membership of the
barrio assembly to include citizens who are at least 18 years of age,
whether literate or not, provided they are also residents of the barrio for
at least 6 months (Sec. 4, R.A. No. 3590).
104
Sec. 4. The barrio assembly. — The barrio assembly shall consist of
all persons who are residents of the barrio for at least six months,
eighteen years of age or over, citizens of the Republic of the
Philippines and who are duly registered in the list of barrio assembly
members kept by the Barrio Secretary.
The barrio assembly shall meet at least once a year to hear the annual
report of the barrio council concerning the activities and finances of the
barrio.
It shall meet also at the case of the barrio council or upon written
petition of at least One-Tenth of the members of the barrio assembly.
No meeting of the barrio assembly shall take place unless notice is
given one week prior to the meeting except in matters involving public
safety or security in which case notice within a reasonable time shall
be sufficient. The barrio captain, or in his absence, the councilman
acting as barrio captain, or any assembly member selected during the
meeting, shall act as presiding officer at all meetings of the barrio
assembly. The barrio secretary or in his absence, any member
designated by the presiding officer to act as secretary shall discharge
the duties of secretary of the barrio assembly.
For the purpose of conducting business and taking any official action in
the barrio assembly, it is necessary that at least one-fifth of the
members of the barrio assembly be present to constitute a quorum. All
actions shall require a majority vote of these present at the meeting
there being a quorum.
Sec. 5. Powers of the barrio assembly. — The powers of the barrio
assembly shall be as follows:
a. To recommend to the barrio council the adoption of
measures for the welfare of the barrio;
b. To decide on the holding of a plebiscite as provided for in
Section 6 of this Act;
c. To act on budgetary and supplemental appropriations and
special tax ordinances submitted for its approval by the barrio council;
and
d. To hear the annual report council concerning the activities
and finances of the assembly.
Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when
authorized by a majority vote of the members present in the barrio
assembly, there being a quorum, or when called by at least four
members of the barrio council; Provided, however, That no plebiscite
shall be held until after thirty days from its approval by either body, and
such plebiscite has been given the widest publicity in the barrio, stating
the date, time, and place thereof, the questions or issues to be
decided, action to be taken by the voters, and such other information
relevant to the holding of the plebiscite.
All duly registered barrio assembly members qualified to vote may vote
in the plebiscite. Voting procedures may be made either in writing as in
regular election, and/or declaration by the voters to the board of
election tellers. The board of election tellers shall be the same board
envisioned by section 8, paragraph 2 of this Act, in case of vacancies
in this body, the barrio council may fill the same.
A plebiscite may be called to decide on the recall of any member of the
barrio council. A plebiscite shall be called to approve any budgetary,
supplemental appropriations or special tax ordinances.
For taking action on any of the above enumerated measures, majority
vote of all the barrio assembly members registered in the list of barrio
secretary is necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. — Every citizen of
the Philippines, twenty-one years of age or over, able to read and
write, who has been a resident of the barrio during the six months
immediately preceding the election, duly registered in the list of voters
kept by the barrio secretary, who is not otherwise disqualified, may
vote or be a candidate in the barrio elections.
The following persons shall not be qualified to vote:
a. Any person who has been sentenced by final judgment to
suffer one year or more of imprisonment, within two years after service
of his sentence;
b. Any person who has violated his allegiance to the Republic
of the Philippines; and
c. Insane or feeble-minded persons.
All these barrio assembly members, who are at least 18 years of age,
although illiterate, may vote at the plebiscite on the recall of any
member of the barrio council or on a budgetary, supplemental
appropriation, or special ordinances, a valid action on which requires "a
majority vote of all of the barrio assembly members registered in the
list of the barrio secretary" (par. 5, Sec. 6, R.A. No. 3590). Such
plebiscite may be authorized by a majority vote of the members
present in the barrio assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens,
who are at least 21 years of age, able to read and write, residents of
the barrio during the 6 months immediately preceding the election and
duly registered in the list of voters kept by the barrio secretary, not
otherwise disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides
that "voting procedures may be made ... either in writing as in regular
elections, and/or declaration by the voters to the board of election
tellers."
That said paragraph 2 of Section 6 provides that "all duly registered
barrio assembly members qualified to vote may vote in the plebiscite,"
cannot sustain the position of petitioners in G.R. No. L-36165 that only
those who are 21 years of age and above and who possess all other
qualifications of a voter under Section 10 of R.A. No. 3590, can vote on
the plebiscites referred to in Section 6; because paragraph 3 of Section
6 does not expressly limit the voting to those with the qualifications
under Section 10 as said Section 6 does not distinguish between those
who are 21 or above on the one hand and those 18 or above but below
21 on the other, and whether literate or not, to constitute a quorum of
the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered
members of the barrio assembly can vote as long as they are 18 years
of age or above; and that only those who are 21 years of age or over
and can read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio
assembly to those who are at least 18 years of age, whether literate or
not. Republic Act No. 3590 could simply have restated Section 4 of
Republic Act No. 2370, the old Barrio Charter, which provided that only
those who are 21 and above can be members of the barrio assembly.
Counsels Salonga and Tañada as well as all the petitioners in L-36165
and two of the petitioners in L-36164 participated in the enactment of
Republic Act No. 3590 and should have known the intendment of
Congress in expanding the membership of the barrio assembly to
include all those 18 years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a
constituent assembly, can include 18-year olds as qualified electors for
barrio plebiscites, this prerogative can also be exercised by the Chief
Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential
Proclamation No. 1102 that the 1973 Constitution was overwhelmingly
ratified by the people through the Citizens' Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded the
presumption of correctness; because the same was based on the
certification by the Secretary of the Department of Local Government
and Community Development who tabulated the results of the
referendum all over the country. The accuracy of such tabulation and
certification by the said Department Secretary should likewise be
presumed; because it was done in the regular performance of his
official functions aside from the fact that the act of the Department
Secretary, as an alter ego of the President, is presumptively the act of
the President himself unless the latter disapproves or reprobates the
same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the
certification by the Department Secretary and the Chief Executive on
the results of the referendum, is further strengthened by the affidavits
and certifications of Governor Isidro Rodriguez of Rizal, Mayor
Norberto S. Amoranto of Quezon City and Councilor Eduardo T.
Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman
suffrage, the 1939 amendment to the ordinance appended to the 1935
Constitution, the 1940 amendments establishing the bicameral
Congress, creating the Commission on Elections and providing for two
consecutive terms for the President, and the 1947 parity amendment,
cannot be invoked; because those amendments were proposed by the
National Assembly as expressly authorized by Article V of the 1935
Constitution respecting woman suffrage and as a constituent assembly
in all the other amendments aforementioned and therefore as such,
Congress had also the authority to prescribe the procedure for the
submission of the proposed amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an
independent Constitutional Convention, which as heretofore discussed,
has the equal power to prescribe the modality for the submission of the
1973 Constitution to the people for ratification or delegate the same to
the President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor
Norberto Amoranto could be utilized as the basis for the extrapolation
of the Citizens' Assemblies in all the other provinces, cities and
105
municipalities in all the other provinces, cities and municipalities, and
the affirmative votes in the Citizens' Assemblies resulting from such
extrapolation would still constitute a majority of the total votes cast in
favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the
Department of Local Government and Community Development that in
Rizal there were 1,126,000 Yes votes and 100,310 No votes, the
certification of Governor Isidro Rodriguez of Rizal, shows only 614,157
Yes votes against 292,530 No votes. In Cavite province, there were
249,882 Yes votes against 12,269 No votes as disclosed in Annex 1-A
of respondents' Compliance (the certification by the Department of
Local Government and Community Development), while the alleged
certification of Governor Lino Bocalan of Cavite shows only 126,163
Yes votes and 5,577 No votes. If such a ratio is extended by way of
extrapolation to the other provinces, cities and towns of the country,
the result would still be an overwhelming vote in favor of the 1973
Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not
true; because in his duly acknowledged certification dated March 16,
1973, he states that since the declaration of martial law and up to the
present time, he has been under house arrest in his residence in
Urdaneta Village, Makati, Rizal; that he never participated in the
conduct of the Citizens' Assemblies on January 10 15, 1973 in the
province of Cavite; that the acting chairman and coordinator of the
Citizens' Assemblies at that time was Vice-Governor Dominador
Camerino; and that he was shown a letter for his signature during the
conduct of the Citizens' Assemblies, which he did not sign but which he
referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol.
Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16,
1973 stating that on January 15, 1973, he caused the preparation of a
letter addressed to Secretary Jose Roño of the Department of Local
Government and Community Development showing the results of the
referendum in Pasay City; that on the same day, there were still in any
Citizens' Assemblies holding referendum in Pasay City, for which
reason he did not send the aforesaid letter pending submittal of the
other results from the said Citizens' Assemblies; and that in the
afternoon of January 15, 1973, he indorsed the complete certificate of
results on the referendum in Pasay City to the Office of the President
(Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of
Pasay City also issued an affidavit dated March 15, 1973 stating that a
certain Atty. Delia Sutton of the Salonga Law Office asked him for the
results of the referendum; that he informed her that he had in his
possession unsigned copies of such results which may not be
considered official as they had then no knowledge whether the original
thereof had been signed by the mayor; and that in spite of his advice
that said unsigned copies were not official, she requested him if she
could give her the unofficial copies thereof, which he gave in good faith
(Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the
Citizens' Assemblies of Quezon city (Annex V to Petitioners' Notes in
L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of
alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle,
Quezon City, states that "as far as we know, there has been no
Citizens' Assembly meeting in our Area, particularly in January of this
year," does not necessarily mean that there was no such meeting in
said barrio; for she may not have been notified thereof and as a result
she was not able to attend said meeting. Much less can it be a basis
for the claim that there was no meeting at all in the other barrios of
Quezon City. The barrio captain or the secretary of the barrio assembly
could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon
City Ratification and Coordinating Council, certified on March 12, 1973
that as such chairman he was in charge of the compilation and
tabulation of the results of the referendum among the Citizens'
Assemblies in Quezon City based on the results submitted to the
Secretariat by the different Citizens' Assemblies; but many results of
the referendum were submitted direct to the national agencies having
to do with such activity and all of which he has no knowledge,
participation and control (Annex 4 Rejoinder of the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March
16, 1973 that he prepared a letter to the President dated January 15,
1973 informing him of the results of the referendum in Rizal, in
compliance with the instruction of the National Secretariat to submit
such letter 2 or 3 days from January 10 to show the trend of voting in
the Citizens' Assemblies; that the figures 614,157 and 292,530
mentioned in said letter were based on the certificates of results in his
possession as of January 14, 1973, which results were made the basis
of the computation of the percentage of voting trend in the province;
that his letter was never intended to show the final or complete result in
the referendum in the province as said referendum was then still going
on from January 14-17, 1973, for which reason the said letter merely
stated that it was only a "summary result"; and that after January 15,
1973, he sent to the National Secretariat all the certificates of results in
26 municipalities of Rizal for final tabulation (Annex 3-Rejoinder of the
Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department
of Local Government and Community Development, issued a
certificate dated March 16, 1973 that she was shown xerox copies of
unsigned letters allegedly coming from Governor Lino Bocalan dated
January 15, 1973 and marked "Rejoinder Annex Cavite" addressed to
the President of the Philippines through the Secretary of the
Department of Local Government and Community Development and
another unsigned letter reportedly from Mayor Pablo Cuneta dated
January 15, 1973 and marked "Rejoinder Annex Pasay City"
addressed to the Secretary of the Department of Local Government
and Community Development; that both xerox copies of the unsigned
letters contain figures showing the results of the referendum of the
Citizens' Assemblies in those areas; and that the said letters were not
received by her office and that her records do not show any such
documents received by her office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to
deceive this Court by representing said unsigned letters and/or
certificates as duly signed and/or containing the complete returns of
the voting in the Citizens' Assemblies.
The observation We made with respect to the discrepancy between the
number of Yes votes and No votes contained in the summary report of
Governor Rodriguez of Rizal as well as those contained in the alleged
report of Governor Lino Bocalan of Cavite who repudiated the same as
not having been signed by him for he was then under house arrest, on
the one hand, and the number of votes certified by the Department of
Local Government and Community Development, on the other, to the
effect that even assuming the correctness of the figures insisted on by
counsel for petitioners in L-36165, if they were extrapolated and
applied to the other provinces and cities of the country, the Yes votes
would still be overwhelmingly greater than the No votes, applies
equally to the alleged discrepancy between the figures contained in the
certification of the Secretary of the Department of Local Government
and Community Development and the figures furnished to counsel for
petitioners in L-36165 concerning the referendum in Camarines Sur,
Bataan and Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines
Sur, shows that there were more votes in favor of the plebiscite to be
held later than those against, only serve to emphasize that there was
freedom of voting among the members of the Citizens' Assemblies all
over the country during the referendum from January 10 to 15, 1973
(Annex-6 Camarines Sur to Rejoinder of Petitioners in L-36165). If
there was no such freedom of choice, those who wanted a plebiscite
would not outnumber those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973
confirms the "strong manifestation of approval of the new Constitution
by almost 97% by the members of the Citizens' Assemblies in
Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in L-
36165).
The report of Governor Efren B. Pascual of Bataan shows that the
members of the Citizens' Assemblies voted overwhelmingly in favor of
the new Constitution despite the fact that the second set of questions
including the question "Do you approve of the new Constitution?" was
received only on January 10. Provincial Governor Pascual stated that
"orderly conduct and favorable results of the referendum" were due not
only to the coordinated efforts and cooperation of all teachers and
government employees in the area but also to the enthusiastic
participation by the people, showing "their preference and readiness to
accept this new method of government to people consultation in
shaping up government policies." (Annex-Bataan to Rejoinder of
Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new
Constitution are registered in the book of voters; it is enough that they
are electors voting on the new Constitution (Bott vs. Wurts, 40 A 740
[1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of
actual voters in the referendum in certain localities may exceed the
number of voters actually registered for the 1971 elections, can only
mean that the excess represents the qualified voters who are not yet
registered including those who are at least 15 years of age and the
illiterates. Although ex-convicts may have voted also in the
referendum, some of them might have been granted absolute pardon
or were sentenced to less than one year imprisonment to qualify them
to vote (Sec. 201, 1971 Rev. Election Code). At any rate, the ex-
convicts constitute a negligible number, discounting which would not tilt
the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who
belongs to the Liberal Party, stated in his letter dated March 13, 1973
that he does not "feel authorized by the proper authorities to confirm or
deny the data" concerning the number of participants, the Yes votes
and No votes in the referendum on the new Constitution among the
members of the Citizens' Assemblies in Caloocan City, does not
necessarily give rise to the inference that Mayor Samson of Caloocan
City is being intimidated, having been recently released from detention;
because in the same letter of Mayor Samson, he suggested to counsel
106
for petitioners in L-36165 that he can secure "the true and legitimate
results of the referendum" from the Office of the President (Annex
Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not
learned and eminent counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies
heavily on the computation of the estimated turnover in the Citizens'
Assemblies referendum on January 10 to 15, 1973 by a certain
Professor Benjamin R. Salonga, of the Mapua Institute of Technology,
ostensibly a close relative of former Senator Jovito R. Salonga,
eminent counsel for petitioners in L-36165 (Annex M-as amended, to
Consolidated Rejoinder of petitioners in L-36165 to the Notes of
Arguments and Memorandum of respondents). Professor Salonga is
not a qualified statistician, which all the more impairs his credibility.
Director Tito A. Mijares of the Bureau of Census and Statistics, in his
letter dated March 16, 1973 address to the Secretary of the
Department of Local Government and Community Development,
refutes the said computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all qualified
registered voters and the 15-20-year-old youths (1972) will have to be
estimated in order to give a 101.9% estimate of the percentage
participation of the "15-20 year old plus total number of qualified
voters" which does not deem to answer the problem. This computation
apparently fails to account for some 5.6 million persons "21 years old
and over" who were not registered voters (COMELEC), but who might
be qualified to participate at the Citizen's Assembly.
2) The official population projection of this office (medium
assumption) for "15 year olds and over" as of January 1, 1973 is
22.506 million. If total number of participants at the Citizens' Assembly
Referendum held on January 10-15, 1973 was 16.702 million,
participation rate will therefore be the ratio of the latter figure to the
former which gives 74.2%.
3) 1 cannot also understand c-2 "Solution to Problem 11." The
"difference or implied number of 15-20 year olds" of 5,039,906 would
represent really not only all 15-year olds and over who participated at
the Citizens' Assembly but might not have been registered voters at the
time, assuming that all the 11,661,909 registered voted at Citizens'
Assembly. Hence, the "estimate percentage participation of 15-20
years olds" of 105.6% does not seem to provide any meaningful
information.
To obtain the participation rate of "15-20 years old" one must divide the
number in this age group, which was estimated to be 4.721 million as
of January 1, 1973 by the population of "15 years old and over" for the
same period which was estimated to be 22.506 million, giving 21.0%.
In Problem III, it should be observed that registered voters also include
names of voters who are already dead. It cannot therefore be assumed
that all of them participated at the Citizens' Assembly. It can therefore
be inferred that "a total number of persons 15 and over
unqualified/disqualified to vote" will be more than 10,548,197 and
hence the "difference or implied number of registered voters that
participated" will be less than 6,153,618.
I have reservations on whether an "appropriate number of qualified
voters that supposedly voted" could be meaningfully estimated.
5) The last remark will therefore make the ratio (a) [Solution to
Problem] more than 1.71 and that for (b), accordingly, will also be less
than 36.8%." (Annex F Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as
of January 21, 1973, the official population projection for 15-year olds
and over is 22,506,000. If 16,702,000 voted in the referendum, the
participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971
numbered 11,661,909, the difference between 16,702,000 who
participated in the referendum and the registered electors of
11,661,909 for the November 8, 1971 elections, is 5,040,091, which
may include not only the 15-year olds and above but below 21 but also
the qualified electors who were not registered before the November 8,
1971 elections as well as illiterates who are 15 years old and above but
below 21.
Moreover, in the last Presidential election in November, 1969, We
found that the incumbent President obtained over 5,000,000 votes as
against about 3,000,000 votes for his rival LP Senator Sergio Osmeña,
Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmeña,
Jr. vs. Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that
those who voted for the incumbent President in 1969 did not vote in
favor of the 1973 Constitution during the referendum from January 10
to 15, 1973. It should also be stressed that many of the partisans of the
President in the 1969 Presidential elections, have several members in
their families and relatives who are qualified to participate in the
referendum because they are 15 years or above including illiterates,
which fact should necessarily augment the number of votes who voted
for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is
necessarily inconsistent with freedom of choice, because the people
fear to disagree with the President and Commander-in-Chief of the
Armed Forces of the Philippines and therefore cannot voice views
opposite to or critical of the position of the President on the 1973
Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during
martial law which inevitably generates fear in the individual. Even
without martial law, the penal, civil or administrative sanction provided
for the violation of ordinarily engenders fear in the individual which
persuades the individual to comply with or obey the law. But before
martial law was proclaimed, many individuals fear such sanctions of
the law because of lack of effective equal enforcement or
implementation thereof — in brief, compartmentalized justice and
extraneous pressures and influences frustrated the firm and just
enforcement of the laws. The fear that is generated by martial law is
merely the fear of immediate execution and swift enforcement of the
law and therefore immediate infliction of the punishment or sanction
prescribed by the law whenever it is transgressed during the period of
martial law. This is not the fear that affects the voters' freedom of
choice or freedom to vote for or against the 1973 Constitution. Those
who cringe in fear are the criminals or the law violators. Surely,
petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or
raising of hands violates the secrecy of the ballot as by the election
laws. But the 1935 Constitution does not require secret voting. We
search in vain for such guarantee or prescription in said organic law.
The Commission on Elections under the 1940 Amendment, embodied
as Article X is merely mandated to insure "free, orderly and honest
election." Congress, under its plenary law-making authority, could have
validly prescribed in the election law open voting in the election of
public officers, without trenching upon the Constitution. Any objection
to such a statute concerns its wisdom or propriety, not its legality or
constitutionality. Secret balloting was demanded by partisan strife in
elections for elective officials. Partisanship based on party or personal
loyalties does not generally obtain in a plebiscite on proposed
constitutional amendments or on a new Constitution. We have seen
even before and during martial law that voting in meetings of
government agencies or private organizations is usually done openly.
This is specially true in sessions of Congress, provincial boards, city
councils, municipal boards and barrio councils when voting on national
or local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the
Citizens' Assemblies. It might have been true in certain areas, but that
does not necessarily mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3,
1973 of the National Press Club officers who were elected by
acclamation presided over by its former president, petitioner Eduardo
Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue).
There can be no more hardboiled group of persons than
newspapermen, who cannot say that voting among them by
acclamation was characterized by fear among the members of the
National Press Club.
Moreover, petitioners would not be willing to affirm that all the
members of the citizenry of this country are against the new
Constitution. They will not deny that there are those who favor the
same, even among the 400,000 teachers among whom officers of the
Department of Education campaigned for the ratification of the new
Constitution.
Not one of the petitioners can say that the common man — farmer,
laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus
driver, pedestrian, salesman, or salesgirl — does not want the new
Constitution, or the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given
to the new Constitution. This is quite inaccurate; because even before
the election in November, 1970 of delegates to the Constitutional
Convention, the proposed reforms were already discussed in various
forums and through the press as well as other media of information.
Then after the Constitutional Convention convened in June, 1971,
specific reforms advanced by the delegates were discussed both in
committee hearings as well as in the tri-media — the press, radio and
television. Printed materials on the proposed reforms were circulated
by their proponents. From June, 1971 to November 29, 1972, reforms
were openly discussed and debated except for a few days after the
proclamation of martial law on September 21, 1972. From the time the
Constitutional Convention reconvened in October, 1972 until January
7, 1973, the provisions of the new Constitution were debated and
discussed in forums sponsored by private organizations universities
and debated over the radio and on television. The Philippines is a
literate country, second only to Japan in the Far East, and more literate
perhaps than many of mid-western and southern states of the
American Union and Spain. Many residents in about 1,500 towns and
33,000 barrios of the country have radios. Even the illiterates listened
to radio broadcasts on and discussed the provisions of the 1973
Constitution.
107
As reported by the eminent and widely read columnist, Teodoro
Valencia in his column in Bulletin Today, March 4, 1973 issue, "Otto
Lang, Hollywood producer director (Tora, Tora, Tora) went around the
country doing a 30-minute documentary on the Philippines for
American television stated that what impressed him most in his travel
throughout the country was the general acceptance of the New Society
by the people which he saw in his 6-week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and
Daily Express, March 3, and Sunday Express, March 4), Secretary of
the United States Senate, who conducted a personal survey of the
country as delegate of Senator Mike Mansfield, Chairman, Committee
on US-Philippine relations, states:
Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines. President Marcos has been prompt and
sure-footed in using the power of presidential decree under martial law
for this purpose. He has zeroed in on areas which have been widely
recognized as prime sources of the nation's difficulties — land tenancy,
official corruption, tax evasion and abuse of oligarchic economic
power. Clearly, he knows the targets. What is not yet certain is how
accurate have been his shots. Nevertheless, there is marked public
support for his leadership and tangible alternatives have not been
forthcoming. That would suggest that he may not be striking too far
from the mark.
The United States business community in Manila seems to have been
re-assured by recent developments ... . (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the
country, who constitute the majority of the population, do not like the
reforms stipulated in the new Constitution, as well as the decrees,
orders and circulars issued to implement the same. It should be
recalled, as hereinbefore stated, that all these reforms were the subject
of discussion both in the committee hearings and on the floor of the
Constitutional Convention, as well as in public forums sponsored by
concerned citizens or civic organizations at which Con-Con delegates
as well as other knowledgeable personages expounded their views
thereon and in all the media of information before the proclamation of
martial law on September 21, 1972. This is the reason why the
Constitutional Convention, after spending close to P30 million during
the period from June 1, 1971 to November 29, 1972, found it expedient
to accelerate their proceedings in November, 1972 because all views
that could possibly be said on the proposed provisions of the 1973
Constitution were already expressed and circulated. The 1973
Constitution may contain some unwise provisions. But this objection to
such unwise or vague provisions, as heretofore stated, refers to the
wisdom of the aforesaid provisions, which issue is not for this Court to
decide; otherwise We will be substituting Our judgment for the
judgment of the Constitutional Convention and in effect acting as a
constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES
LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the
President as Commander-in-Chief is vested with legislative powers, is
sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al.
(83 Phil. 171, 177-178) which reiterates the 1945 case of Yamashita
vs. Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after
the surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p.
799) and hence no more martial law in the Philippines.
... Consequently, in the promulgation and enforcement of Executive
Order No. 68, the President of the Philippines has acted in conformity
with the generally accepted principles and policies of international law
which are part of our Constitution.
The promulgation of said executive order is an exercise by the
President of his powers as Commander in Chief of all our armed
forces, as upheld by this Court in the case of Yamashita vs. Styver (L-
129, 42 Off. Gaz., 664) when we said —
"War is not ended simply because hostilities have ceased. After
cessation of armed hostilities, incidents of war may remain pending
which should be disposed of as in time of war. "An important incident to
a conduct of war is the adoption measures by the military command
not only to repel and defeat the enemies but to seize and subject to
disciplinary measures those enemies who in their attempt to thwart or
impede our military effort have violated the law of war." (Ex parte
Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a
military commission for the trial and punishment of war criminals is an
aspect of waging war. And, in the language of a writer, a military
commission "has jurisdiction so long as the technical state of war
continues. This includes the period of an armistice, or military
occupation, up to the effective date of treaty of peace, and may extend
beyond, by treaty agreement." (Cowles, Trial of War Criminals by
Military Tribunals, American Bar Association Journal, June, 1944).
Consequently, the President as Commander-in-Chief is fully
empowered to consummate this unfinished aspect of war, namely the
trial and punishment of war criminals, through the issuance and
enforcement of Executive Order No. 68. (83 Phil. 177-178; emphasis
supplied).
Chief Justice Stone of the United States Supreme Court likewise
appears to subscribe to this view, when, in his concurring opinion in
Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law
as "the exercise of the power which resides in the executive branch of
the government to preserve order and insure the public safety in times
of emergency, when other branches of the government are unable to
function, or their functioning would itself threaten the public safety."
(Emphasis supplied). There is an implied recognition in the aforesaid
definition of martial law that even in places where the courts can
function, such operation of the courts may be affected by martial law
should their "functioning ... threaten the public safety." It is possible
that the courts, in asserting their authority to pass upon questions
which may adversely affect the conduct of the punitive campaign
against rebels, secessionists, dissidents as well as subversives, martial
law may restrict such judicial function until the danger to the security of
the state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some instances might
become an outright dictatorship, can have no other purposes than the
preservation of the independence of the state, the maintenance of the
existing constitutional order, and the defense of the political and social
liberties of the people. It is important to recognize the true and limited
ends of any practical application of the principle of constitutional
dictatorship. Perhaps the matter may be most clearly stated in this
way: the government of a free state is proceeding on its way and
meeting the usual problems of peace and normal times within the
limiting framework of its established constitutional order. The functions
of government are parceled out among a number of mutually
independent offices and institutions; the power to exercise those
functions is circumscribed by well-established laws, customs, and
constitutional prescriptions; and the people for whom this government
was instituted are in possession of a lengthy catalogue of economic,
political, and social rights which their leaders recognize as inherent and
inalienable. A severe crisis arises — the country is invaded by a hostile
power, or a dissident segment of the citizenry revolts, or the impact of
a world-wide depression threatens to bring the nation's economy in
ruins. The government meets the crisis by assuming more powers and
respecting fewer rights. The result is a regime which can act arbitrarily
and even dictatorially in the swift adaption of measures designed to
save the state and its people from the destructive effects of the
particular crisis. And the narrow duty to be pursued by this strong
government, this constitutional dictatorship? Simply this and nothing
more: to end the crisis and restore normal times. The government
assumes no power and abridges no right unless plainly indispensable
to that end; it extends no further in time than the attainment of that end;
and it makes no alteration in the political, social and economic
structure of the nation which cannot be eradicated with the restoration
of normal times. In short, the aim of constitutional dictatorship is the
complete restoration of the status quo ante bellum. This historical fact
does not comport with philosophical theory, that there never has been
a perfect constitutional dictatorship, is an assertion that can be made
without fear of contradiction. But this is true of all institutions of
government, and the principle of constitutional dictatorship remains
eternally valid no matter how often and seriously it may have been
violated in practice. (Constitutional Dictatorship, 1948 ed., by Clinton L.
Rossiter, p. 7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief
Executive exercises legislative power, whether of temporary or
permanent character, thus:
The measures adopted in the prosecution of a constitutional
dictatorship should never be permanent in character or effect.
Emergency powers are strictly conditioned by their purpose and this
purpose is the restoration of normal conditions. The actions directed to
this end should therefore be provisional. For example, measures of a
legislative nature which work a lasting change in the structure of the
state or constitute permanent derogations from existing law should not
be adopted under an emergency enabling act, at least not without the
positively registered approval of the legislature. Permanent laws,
whether adopted in regular or irregular times, are for parliaments to
enact. By this same token, the decisions and sentences of
extraordinary courts should be reviewed by the regular courts after the
termination of the crisis.
But what if a radical act of permanent character, one working lasting
changes in the political and social fabric, is indispensable to the
successful prosecution of the particular constitutional dictatorship? The
only answer can be: it must be resolutely taken and openly
acknowledged. President Lincoln found it necessary to proceed to the
revolutionary step of emancipation in aid of his conservative purpose of
preserving the Union; as a constitutional dictator he had a moral right
to take this radical action. Nevertheless, it is imperative that any action
with such lasting effects should eventually receive the positive approval
108
of the people or of their representatives in the legislature. (P. 303,
emphasis supplied).
From the foregoing citations, under martial law occasioned by severe
crisis generated by revolution, insurrection or economic depression or
dislocation, the government exercises more powers and respects fewer
rights in order "to end the crisis and restore normal times." The
government can assume additional powers indispensable to the
attainment of that end — the complete restoration of peace. In our
particular case, eradication of the causes that incited rebellion and
subversion as secession, is the sine qua non to the complete
restoration of normalcy. Exercise of legislative power by the President
as Commander in Chief, upon his proclamation of martial law, is
justified because, as he professes, it is directed towards the institution
of radical reforms essential to the elimination of the causes of
rebellious, insurgent or subversive conspiracies and the consequent
dismantling of the rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well
as Proclamation No. 1102 is indispensable to the effectuation of the
reforms within the shortest possible time to hasten the restoration of
normalcy.
"Must the government be too strong for the liberties of the people; or
must it be too weak to maintain its existence?" That was the dilemma
that vexed President Lincoln during the American Civil War, when
without express authority in the Constitution and the laws of the United
States, he suspended one basic human freedom — the privilege of the
writ of habeas corpus — in order to preserve with permanence the
American Union, the Federal Constitution of the United States and all
the civil liberties of the American people. This is the same dilemma that
presently confronts the Chief Executive of the Republic of the
Philippines, who, more than the Courts and Congress, must, by
express constitutional mandate, secure the safety of our Republic and
the rights as well as lives of the people against open rebellion,
insidious subversion secession. The Chief Executive announced
repeatedly that in choosing to proclaim martial law, the power
expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII,
1935 Constitution) to insure our national and individual survival in
peace and freedom, he is in effect waging a peaceful, democratic
revolution from the center against the violent revolution and subversion
being mounted by the economic oligarchs of the extreme right, who
resist reforms to maintain their economic hegemony, and the
communist rebels a Maoist oriented secessionists of the extreme left
who demand swift institution of reforms. In the exercise of his
constitutional and statutory powers, to save the state and to protect the
citizenry against actual and threatened assaults from insurgents,
secessionists and subversives, doctrinaire concepts and principles, no
matter how revered they may be by jurisprudence and time, should not
be regarded as peremptory commands; otherwise the dead hand of the
past will regulate and control the security and happiness of the living
present. A contrary view would be to deny the self-evident proposition
that constitutions and laws are mere instruments for the well-being,
peace, security and prosperity of the country and its citizenry. The law
as a means of social control is not static but dynamic. Paraphrasing
Mr. Justice Frankfurter, the Constitution is neither a printed finality nor
the imprisonment of the past, but the enfolding of the future. In the vein
of Mr. Justice Holmes, the meaning of the words of the Constitution is
not to be determined by merely opening a dictionary. Its terms must be
construed in the context of the realities in the life of a nation it is
intended to serve. Because experience may teach one generation to
doubt the validity and efficacy of the concepts embodied in the existing
Constitution and persuade another generation to abandon them
entirely, heed should be paid to the wise counsel of some learned
jurists that in the resolution of constitutional questions — like those
posed before Us — the blending of idealism and practical wisdom or
progressive legal realism should be applied (see Alexander M. Bickel,
the Supreme Court and the Idea of Progress, 1970 ed., pp. 19-21). To
Justice Frankfurter, law is "a vital agency for human betterment" and
constitutional law "is applied politics using the word in its noble sense."
(Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied).
Justice Brandeis gave utterance to the truth that "Our Constitution is
not a straight jacket. It is a living organism. As such, it is capable of
growth — or expansion and adaptation to new conditions. Growth
implies changes, political, economic and social." (Brandeis Papers,
Harvard Law School; emphasis supplied). Harvard Professor Thomas
Reed Powell emphasizes "practical wisdom," for "the logic of
constitutional law is the common sense of the Supreme Court."
(Powell, the Validity of State Legislation, under the Webb-Kenyon Law,
2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus,
supra; emphasis supplied).
The eternal paradox in this finite world of mortal and fallible men is that
nothing is permanent except change. Living organisms as well as man-
made institutions are not immutable. Civilized men organize
themselves into a State only for the purpose of serving their supreme
interest — their welfare. To achieve such end, they created an agency
known as the government. From the savage era thru ancient times, the
Middle Ages, the Dark Ages and the Renaissance to this era of
sophisticated electronics and nuclear weaponry, states and
governments have mutated in their search for the magic instrument for
their well-being. It was trial and error then as it is still now. Political
philosophies and constitutional concepts, forms and kinds of
government, had been adopted, overturned, discarded, re-adopted or
modified to suit the needs of a given society at a particular given
epoch. This is true of constitutions and laws because they are not "the
infallible instruments of a manifest destiny." No matter how we want the
law to be stable, it cannot stand still. As Mr. Justice Holmes aptly
observed, every "constitution is an experiment as all life is an
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the
law is not logic, but experience." In the pontifical tones of Mr. Justice
Benjamin Nathan Cardozo, "so long as society is inconstant, there can
be no constancy in law," and "there will be change whether we will it or
not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-
like, command the waves of progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a
"government that governs least." Adherents there are to the poetic
dictum of Alexander Pope: "For forms of government let fools contest;
whatever is best administered is best." (Poems of Pope, 1931
Cambridge ed., p. 750). In between, the shades vary from direct
democracy, representative democracy, welfare states, socialist
democracy, mitigated socialism, to outright communism which
degenerated in some countries into totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated
to factual situations in the seclusion of his ivory tower, must perforce
submit to the inexorable law of change in his views, concepts, methods
and techniques when brought into the actual arena of conflict as a
public functionary — face to face with the practical problems of state,
government and public administration. And so it is that some learned
jurists, in the resolution of constitutional issues that immediately affect
the lives, liberties and fortunes of the citizens and the nation,
recommend the blending of idealism with practical wisdom which legal
thinkers prefer to identify as progressive legal realism. The national
leader, who wields the powers of government, must and has to
innovate if he must govern effectively to serve the supreme interests of
the people. This is especially true in times of great crises where the
need for a leader with vision, imagination, capacity for decision and
courageous action is greater, to preserve the unity of people, to
promote their well-being, and to insure the safety and stability of the
Republic. When the methods of rebellion and subversion have become
covert, subtle and insidious, there should be a recognition of the
corresponding authority on the part of the Commander-in-Chief of the
Armed Forces to utilize all the available techniques to suppress the
peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding
fathers of the American Constitution and former President of the United
States, who personifies the progressive liberal, spoke the truth when
he said that some men "ascribe men of the preceding age a wisdom
more than human, and suppose what they did to be beyond
amendment. ... But I know also, that laws and institutions must go hand
in hand with the progress of the human mind. As that becomes more
developed, more enlightened, as new discoveries are made, new
truths disclosed and manners and opinions change, with the change of
circumstances, institutions must also advance, and keep pace with the
times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged
in the perspective of history. It cannot be adequately and fairly
appraised within the present ambience, charged as it is with so much
tension and emotion, if not partisan passion. The analytical, objective
historians will write the final verdict in the same way that they
pronounced judgment on President Abraham Lincoln who suspended
the privilege of the writ of habeas corpus without any constitutional or
statutory authority therefor and of President Franklin Delano Roosevelt
who approved the proclamation of martial law in 1941 by the governor
of Hawaii throughout the Hawaiian territory. President Lincoln not only
emancipated the Negro slaves in America, but also saved the Federal
Republic of the United States from disintegration by his suspension of
the privilege of the writ of habeas corpus, which power the American
Constitution and Congress did not then expressly vest in him. No one
can deny that the successful defense and preservation of the territorial
integrity of the United States was due in part, if not to a great extent, to
the proclamation of martial law over the territory of Hawaii — main
bastion of the outer periphery or the outpost of the American defense
perimeter in the Pacific — which protected the United States mainland
not only from actual invasion but also from aerial or naval
bombardment by the enemy. Parenthetically, the impartial observer
cannot accurately conclude that the American Supreme Court acted
with courage in its decision in the cases of Ex parte Milligan and
Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to
13, 1866, decided on April 3, 1866, and opinion delivered on
December 17, 1866) after the lifting of the proclamation suspending the
privilege of the writ of habeas corpus, long after the Civil War and the
Second World ended respectively on April 9 or 26, 18-65 (Vol. 1,
Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2,
1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was the
delay on the part of the American Supreme Court in deciding these
cases against the position of the United States President — in
suspending the privilege of the writ of habeas corpus in one case and
approving the proclamation of martial law in the other — deliberate as
an act of judicial statesmanship and recognition on their part that an
adverse court ruling during the period of such a grave crisis might
jeopardize the survival of the Federal Republic of the United States in
109
its life-and-death struggle against an organized and well armed
rebellion within its own borders and against a formidable enemy from
without its territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES
MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil
Puyat and Jose Roy to convene the Senate of the Philippines even on
the assumption that the 1935 Constitution still subsists; because
pursuant to the doctrine of separation of powers under the 1935
Constitution, the processes of this Court cannot legally reach a
coordinate branch of the government or its head. This is a problem that
is addressed to the Senate itself for resolution; for it is purely an
internal problem of the Senate. If a majority of the senators can
convene, they can elect a new Senate President and a new Senate
President Pro Tempore. But if they have no quorum, those present can
order the arrest of the absent members (Sec. 10[2], Art. VI, 1935
Constitution). If this fails, then there is no remedy except an appeal to
the people. The dictum ubi jus, ubi remedium, is not absolute and
certainly does not justify the invocation of the power of this Court to
compel action on the part of a co-equal body or its leadership. This
was emphasized with sufficient clarity by this Court in the 1949 case of
Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished
counsels for the petitioners in L-36164 and L-36165 are familiar. We
stress that the doctrine of separation of powers and the political nature
of the controversy such as this, preclude the interposition of the
Judiciary to nullify an act of a coordinate body or to command
performance by the head of such a co-ordinate body of his functions..
Mystifying is the posture taken by counsels for petitioners in referring to
the political question doctrine — almost in mockery — as a magic
formula which should be disregarded by this Court, forgetting that this
magic formula constitutes an essential skein in the constitutional fabric
of our government, which, together with other basic constitutional
precepts, conserves the unity of our people, strengthens the structure
of the government and assures the continued stability of the country
against the forces of division, if not of anarchy.
Moreover, if they have a quorum, the senators can meet anywhere.
Validity of the acts of the Senate does not depend on the place of
session; for the Constitution does not designate the place of such a
meeting. Section 9 of Article VI imposes upon Congress to convene in
regular session every year on the 4th Monday of January, unless a
different date is fixed by law, or on special session called by the
President. As former Senator Arturo Tolentino, counsel for respondents
Puyat and Roy in L-36165, stated, the duty to convene is addressed to
all members of Congress, not merely to its presiding officers. The fact
that the doors of Congress are padlocked, will not prevent the senators
— especially the petitioners in L-36165 — if they are minded to do so,
from meeting elsewhere — at the Sunken Gardens, at the Luneta
Independence Grandstand, in any of the big hotels or theaters, in their
own houses, or at the Araneta Coliseum, which is owned by the father-
in-law of petitioner Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise
in futility, for it cannot validly meet without the lower House (Sec. 10[5],
Art. VI, 1935 Constitution). Hence, this petition by five former senators
for mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for
respondents Puyat and Roy, mandamus will lie only if there is a law
imposing on the respondents the duty to convene the body. The rule
imposing such a duty invoked by petitioners in L-36165 is purely an
internal rule of the Senate; it is not a law because it is not enacted by
both Houses and approved by the President.
The Constitutional provision on the convening of Congress, is
addressed to the individual members of the legislative body (Sec. 9,
Art. VI of 1935 Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973
CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a
declaration that the alleged ratification of the 1973 Constitution is null
and void and that the said 1973 Constitution be declared
unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the
President as Commander-in-Chief during martial law as directly
delegated to him by Section 10(2) of Article VII of the 1935
Constitution.
A declaration that the 1973 Constitution is unenforceable and
inoperative is practically deciding that the same is unconstitutional. The
proposed Constitution is an act of the Constitutional Convention, which
is co-equal and coordinate with as well as independent of either
Congress or the Chief Executive. Hence, its final act, the 1973
Constitution, must have the same category at the very least as the act
of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and
the 1973 Constitution should be eight (8) under Section 10 of Article
VIII of the 1935 Constitution in relation to Section 9 of the Judiciary Act
or Republic Act No. 296, as amended, or should be ten (10) under
Section 2(2) of Article X of the 1973 Constitution. Should the required
vote of eight (8) or ten (10), as the case may be, for the declaration of
invalidity or unconstitutionality be not achieved, the 1973 Constitution
must be deemed to be valid, in force and operative.
X No. 1102 of the President, issued on January 17, 1973, which declared
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like
Thomas Jefferson, We swear "eternal hostility towards any form of
tyranny over the mind of man" as well as towards bigotry and
intolerance, which are anathema to a free spirit. But human rights and
civil liberties under a democratic or republican state are never absolute
and never immune to restrictions essential to the common weal. A
civilized society cannot long endure without peace and order, the
maintenance of which is the primary function of the government.
Neither can civilized society survive without the natural right to defend
itself against all dangers that may destroy its life, whether in the form of
invasion from without or rebellion and subversion from within. This is
the first law of nature and ranks second to none in the hierarchy of all
values, whether human or governmental. Every citizen, who prides
himself in being a member or a civilized society under an established
government, impliedly submits to certain constraints on his freedom for
the general welfare and the preservation of the State itself, even as he
reserves to himself certain rights which constitute limitations on the
powers of government. But when there is an inevitable clash between
an exertion of governmental authority and the assertion of individual
freedom, the exercise of which freedom imperils the State and the
civilized society to which the individual belongs, there can be no
alternative but to submit to the superior right of the government to
defend and preserve the State. In the language of Mr. Justice Holmes
— often invoked by herein petitioners — "when it comes to a decision
involving its (state life, the ordinary rights of individuals must yield to
what he (the President) deems the necessities of the moment. Public
danger warrants the substitution of executive process for judicial
process. (See Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328).
This was admitted with regard to killing men in the actual clash of
arms. And we think it is obvious, although it was disputed, that the
same is true of temporary detention to prevent apprehended harm."
(Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of
freedom with order and security for all, that should be the shibboleth;
for freedom cannot be enjoyed in an environment of disorder and
anarchy.
The incumbent Chief Executive who was trying to gain the support for
his reform program long before September 21, 1972, realized almost
too late that he was being deceived by his partymates as well as by the
opposition, who promised him cooperation, which promises were either
offered as a bargaining leverage to secure concessions from him or to
delay the institution of the needed reforms. The people have been
victimized by such bargaining and dilly-dallying. To vert a terrifying
blood bath and the breakdown of the Republic, the incumbent
President proclaimed martial law to save the Republic from being
overrun by communists, secessionists and rebels by effecting the
desired reforms in order to eradicate the evils that plague our society,
which evils have been employed by the communists, the rebels and
secessionists to exhort the citizenry to rise against the government. By
eliminating the evils, the enemies of the Republic will be decimated.
How many of the petitioners and their counsels have been utilizing the
rebels, secessionists and communists for their own personal or political
purposes and how many of them are being used in turn by the
aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the
greater mass of the populace, more than for their own selves, they
should be willing to give the incumbent Chief Executive a chance to
implement the desired reforms. The incumbent President assured the
nation that he will govern within the framework of the Constitution and
if at any time, before normalcy is restored, the people thru their
Citizens' Assemblies, cease to believe in his leadership, he will step
down voluntarily from the Presidency. But if, as apprehended by the
petitioners, he abuses and brutalizes the people, then to the
battlements we must go to man the ramparts against tyranny. This, it is
believed, he knows only too well; because he is aware that he who
rides the tiger will eventually end inside the tiger's stomach. He who
toys with revolution will be swallowed by that same revolution. History
is replete with examples of libertarians who turned tyrants and were
burned at stake or beheaded or hanged or guillotined by the very
people whom they at first championed and later deceived. The most
bloody of such mass executions by the wrath of a wronged people,
was the decapitation by guillotine of about 15,000 Frenchmen including
110
the leaders of the French revolution, like Robespierre, Danton,
Desmoulins and Marat. He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive
Officers from implementing the Constitution signed on November 30,
1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy,
President and President Pro-Tempore, respectively, of the Senate
under the 1935 Constitution, to convene the Senate in regular session
which should have started on January 22, 1973; to nullify Proclamation
the ratification of the Constitution on November 30, 1972, by the
Filipino people, through the barangays or Citizens Assemblies
established under Presidential Decree No. 86 issued on December 31,
1972, which were empowered under Presidential Decree No. 86-A,
issued on January 5, 1973, to act in connection with the ratification of
said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for
the making of a Constitution after the declaration of Martial Law on
September 21, 1972.
2. The Convention was not empowered to incorporate certain
provisions in the 1972 Constitution because they are highly unwise and
objectionable and the people were not sufficiently informed about
them.
3. The President had no authority to create and empower the
Citizens' Assemblies to ratify the new Constitution at the referendum
conducted in connection therewith, as said assemblies were merely for
consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution
prescribing the manner of amending the same were not duly observed.
The petitions were not given due course immediately but were referred
to the Solicitor General as counsel for the respondents for comment,
with three members of the Court, including the undersigned, voting to
dismiss them outright. The comments were considered motions to
dismiss which were set for hearing and extensively argued. Thereafter
both parties submitted their notes and memoranda on their oral
arguments.
I.
The issues raised for determination, on which the resolution of the
Motion to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the
competence of this Court to decide, or is it justiciable and fit for judicial
determination?
2. Was the new Constitution of November 30, 1972, ratified in
accordance with the amending process prescribed by Article XV of the
1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in by the
Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are
petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is
highly political and, therefore, not justiciable. I maintain that this Court
should abstain from assuming jurisdiction, but, instead, as an act of
judicial statesmanship, should dismiss the petitions. In resolving
whether or not the question presented is political, joint discussion of
issues Nos. 1, 3 and 4 is necessary so as to arrive at a logical
conclusion. For after the acceptance of a new Constitution and
acquiescence therein by the people by putting it into practical
operation, any question regarding its validity should be foreclosed and
all debates on whether it was duly or lawfully ushered into existence as
the organic law of the state become political and not judicial in
character.
The undisputed facts that led to the issuance of Proclamation No. 1102
and Presidential Decrees Nos. 86 and 86-A are fully set forth in the
majority and dissenting opinions in the Plebiscite cases decided on
January 22, 1973, and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A, claiming that the ratification of
the new Constitution pursuant to the said decrees is invalid and of no
effect. Presidential Decree No. 86 organized the barangays or Citizens
Assemblies composed of all citizens at least fifteen years of age, and
through these assemblies the proposed 1972 Constitution was
submitted to the people for ratification. Proclamation No. 1102 of the
President announced or declared the result of the referendum or
plebiscite conducted through the Citizens Assemblies, and that
14,976,561 members thereof voted for the ratification of the new
Constitution and 743,869 voted against it. Petitioners assail these two
acts of the President as unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity with which the
petitions have been adroitly contrived, what is sought to be invalidated
is the new Constitution itself — the very framework of the present
Government since January 17, 1973. The reason is obvious. The
Presidential decrees set up the means for the ratification and
acceptance of the new Constitution and Proclamation No. 1102 simply
announced the result of the referendum or plebiscite by the people
through the Citizens Assemblies. The Government under the new
Constitution has been running on its tracks normally and apparently
without obstruction in the form of organized resistance capable of
jeopardizing its existence and disrupting its operation. Ultimately the
issue is whether the new Constitution may be set aside by this Court.
But has it the power and authority to assume such a stupendous task
when the result of such invalidation would be to subject this nation to
divisive controversies that may totally destroy the social order which
the Government under the new Constitution has been admirably
protecting and promoting under Martial Law? That the new Constitution
has taken deep root and the people are happy and contended with it is
a living reality which the most articulate critics of the new order cannot
deny. 95 out of 108 members of the House of Representatives have
opted to serve in the interim National Assembly provided for under the
new Constitution. 15 out of 24 Senators have done likewise. The
members of the Congress did not meet anymore last January 22,
1973, not because they were really prevented from so doing but
because of no serious effort on their parts to assert their offices under
the 1935 Constitution. In brief, the Legislative Department under the
1935 Constitution is a thing of the past. The Executive Department has
been fully reorganized; the appointments of key executive officers
including those of the Armed Forces were extended and they took an
oath to support and defend the new Constitution. The courts, except
the Supreme Court by reason of these cases, have administered
justice under the new constitution. All government offices have dealt
with the public and performed their functions according to the new
Constitution and laws promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution,
how can this Court justify its assumption of jurisdiction when no power
has ... conferred upon it the jurisdiction to declare the Constitution or
any part thereof null and void? It is the height of absurdity and
impudence for a court to wage open war against the organic act to
which it owes its existence. The situation in which this Court finds itself
does not permit it to pass upon the question whether or not the new
Constitution has entered into force and has superseded the 1935
Constitution. If it declares that the present Constitution has not been
validly ratified, it has to uphold the 1935 Constitution as still the
prevailing organic law. The result would be too anomalous to describe,
for then this Court would have to declare that it is governed by one
Constitution or the 1935 Constitution, and the legislative and executive
branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it
exercise judicial discretion in these cases when it would have no other
choice but to uphold the new Constitution as against any other one? In
the circumstances it would be bereft of judicial attributes as the matter
would then be not meet for judicial determination, but one addressed to
the sovereign power of the people who have already spoken and
delivered their mandate by accepting the fundamental law on which the
government of this Republic is now functioning. To deny that the new
Constitution has been accepted and actually is in operation would be
flying in the face of reason and pounding one's bare head against a
veritable stone wall or a heavily reinforced concrete, or simply "kicking
the deadly pricks" with one's bare foot in an effort to eliminate the lethal
points.
When a Constitution has been in operation for sometime, even without
popular ratification at that, submission of the people thereto by the
organization of the government provided therein and observance of its
prescriptions by public officers chosen thereunder, is indicative of
approval. Courts should be slow in nullifying a Constitution claimed to
have been adopted not in accordance with constitutional or statutory
directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs
Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204,
207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has been formed and
promulgated according to the forms of law. Great interests have
already arisen under it; important rights exist by virtue of it; persons
have been convicted of the highest crimes known to the law, according
to its provisions; the political power of the government has in many
ways recognized it; and, under such circumstances, it is our duty to
treat and regard it as a valid constitution, and now the organic law of
our state. We need not consider the validity of the amendments made
111
after the convention reassembled. If the making of them was in excess
of its power, yet as the entire instrument has been recognized as valid
in the manner suggested, it would be equally an abuse of power by the
judiciary, and violative of the rights of the people, — who can and
properly should remedy the matter, if not to their liking, — if it were to
declare the instrument or a portion invalid, and bring confusion and
anarchy upon the state. (Emphasis supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from entering upon such an
inquiry when applied to a new constitution, and not an amendment,
because the judicial power presupposes an established government,
and if the authority of that government is annulled and overthrown, the
power of its courts is annulled with it; therefore, if a state court should
enter upon such an inquiry, come to the conclusion that the
government under which it acted had been displaced by an opposing
government, it would cease to be a court, and it would be incapable of
pronouncing a judicial decision upon the question before it; but, if it
decides at all, it must necessarily affirm the existence of the
government under which it exercises its judicial powers. (Emphasis
supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12
L. Ed. 581, 598 (1849) where it was held:
Judicial power presupposes an established government capable of
enacting laws and enforcing their execution, and appointing judges to
expound and administer them. The acceptance of the judicial office is a
recognition of the authority of government from which it is derived. And
if the authority of the government is annulled and overthrown, the
power of its courts and other officers is annulled with it. And if a State
court should enter upon the inquiry proposed in this case, and should
come to conclusion that the government under which it acted had been
put aside and displaced by an opposing government it would cease to
be a court, and be incapable of pronouncing a judicial decision upon
the question it undertook to try. If it decides at all as a court, it
necessarily affirms the existence and authority of the government
under which it is exercising judicial power.
The foreign relations of the Republic of the Philippines have been
normally conducted on the basis of the new Constitution and no state
with which we maintain diplomatic relations has withdrawn its
recognition of our government. (For particulars about executive acts
done under the new Constitution, see pages 22-25 of the Comments of
the Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A by this Court would smack of plain political
meddling which is described by the United States Supreme Court as
"entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At
this juncture it would be the part of wisdom for this Court to adopt the
proper attitude towards political upheavals and realize that the question
before Us is political and not fit for judicial determination. For a political
question is one entrusted to the people for judgment in their sovereign
capacity (Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,1967; 100
Phil. 1101), or to a co-equal and coordinate branch of the Government
(Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1;
Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No.
4638, May 8, 1931). A case involves a political question when there
would be "the impossibility of undertaking independent resolutions
without expressing a lack of respect due to coordinate branches of
government", or when there is "the potentiality of embarrassment from
multifarious pronouncements by various departments on one question."
To preserve the prestige and eminence that this Court has long
enjoyed as the "ultimate organ of the "Supreme Law of the Land" in
that vast range of legal problems often strongly entangled in popular
feeling on which this Court must pronounce", let us harken to the
following admonition of Justice Frankfurter in his dissent in Baker vs.
Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
The Court's authority — possessed neither of the purse nor the sword
— ultimately rests on sustained public confidence in its moral sanction.
Such feeling must be nourished by the Court's complete detachment,
in fact and appearance, from political entanglements and abstention
from injecting itself into the clash of political forces in political
settlement. ..." (Emphasis supplied)
The people have accepted and submitted to a Constitution to replace
the 1935 Constitution. The new organic law is now in the plenitude of
its efficacy and vigor. We are now living under its aegis and protection
and only the cynics will deny this. This Court should not in the least
attempt to act as a super-legislature or a super-board of canvassers
and sow confusion and discord among our people by pontificating
there was no valid ratification of the new Constitution. The sober
realization of its proper role and delicate function and its
consciousness of the limitations on its competence, especially
situations like this, are more in keeping with the preservation of our
democratic tradition than the blatant declamations of those who wish
the Court to engage in their brand of activism and would not mind
plunging it into the whirlpool of passion and emotion in an effort to
capture the intoxicating applause of the multitude.

For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether
or not the Constitution proposed by the Constitutional Convention of
1971 had been ratified in accordance with the provisions of Article XV
of the 1935 Constitution. In the plebiscite cases, which were decided
by this Court on January 22, 19731, I held the view that this issue
could be properly resolved by this Court, and that it was in the public
interest that this Court should declare then whether or not the
proposed Constitution had been validly ratified. The majority of this
Court, however, was of the view that the issue was not squarely raised
in those cases, and so the Court, as a body, did make any categorical
pronouncement on the question of whether or not the Constitution
proposed by the 1971 Convention was validly ratified. I was the only
one who expressed the opinion that the proposed Constitution was not
validly ratified and therefore "it should not be given force and effect."
The Court is now called upon to declare, and to inform the people of
this country, whether or not that proposed Constitution had been validly
ratified and had come into effect.
The Solicitor General, however, contends that this Court has no
jurisdiction to resolve the issue that we have mentioned because that
issue is a political question that cannot be decided by this Court. This
contention by the Solicitor General is untenable. A political question
relates to "those questions which under the Constitution are to be
decided by the people in their sovereign capacity or in regard to which
full discretionary authority has been delegated to the legislative, or to
the executive, branch of the government.2 The courts have the power
to determine whether the acts of the executive are authorized by the
Constitution and the laws whenever they are brought before the court
in a judicial proceeding. The judicial department of the government
exercises a sort of controlling, or rather restraining, power over the two
other departments of the government. Each of the three departments,
within its proper constitutional sphere, acts independently of the other,
and restraint is only placed on one department when that sphere is
actually transcended. While a court may not restrain the executive from
committing an unlawful act, it may, when the legality of such an act is
brought before it in a judicial proceeding, declare it to be void, the
same as it may declare a law enacted by the legislature to be
unconstitutional.3 It is a settled doctrine that every officer under a
constitutional government must act according to law and subject to its
restrictions, and every departure therefrom, or disregard thereof, must
subject him to the restraining and controlling power of the people,
acting through the agency of the judiciary. It must be remembered that
the people act through the courts, as well as through the executive or
the legislature. One department is just as representative as the other,
and judiciary is the department which is charged with the special duty
of determining the limitations which the law places upon all official
actions4 . In the case of Gonzales v. Commission on Elections5, this
Court ruled that the issue as to whether or not a resolution of Congress
acting as a constituent assembly violates the Constitution is not a
political question and is therefore subject to judicial review. In the case
of Avelino v. Cuenco6, this Court held that the exception to the rule
that courts will not interfere with a political question affecting another
department is when such political question involves an issue as to the
construction and interpretation of the provision of the constitution. And
so, it has been held that the question of whether a constitution shall be
amended or not is a political question which is not in the power of the
court to decide, but whether or not the constitution has been legally
amended is a justiciable question.7
My study on the subject of whether a question before the court is
political or judicial, based on decisions of the courts in the United
States — where, after all, our constitutional system has been patterned
to a large extent — made me arrive at the considered view that it is in
the power of this Court, as the ultimate interpreter of the Constitution,
to determine the validity of the proposal, the submission, and the
ratification of any change in the Constitution. Ratification or non-
ratification of a constitutional amendment is a vital element in the
procedure to amend the constitution, and I believe that the Court can
inquire into, and decide on, the question of whether or not an
amendment to the constitution, as in the present cases, has been
ratified in accordance with the requirements prescribed in the
Constitution that was amended. And so, in the cases now before Us, I
believe that the question of whether or not the Constitution proposed
by the 1971 Constitutional Convention had been validly ratified or not is
a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on
whether or not, the cases, before Us involve a political, or a judicial,
question. I fully concur with his conclusion that the question involved in
these cases is justiciable.
On the question now of whether or not the Constitution proposed by
the 1971 Constitutional Convention has been validly ratified, I am
reproducing herein pertinent portions of my dissenting opinion in the
plebiscite cases:
112
The ratification of the Constitution proposed by the 1971 Constitutional
Convention must be done in accordance with the provisions of Section
1, Article XV of the 1935 Constitution of the Philippines, which reads:
"Section 1. The Congress in joint session assembled by a
vote of three fourths of all the Members of the Senate and of the House
of Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted
to the people for their ratification."
It is in consonance with the abovequoted provision of the 1935
Constitution that on March 16, 1967, the Congress of the Philippines
Resolution No. 2 calling a convention to propose amendments to the
Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads
as follows:
"Section 7. The amendments proposed by the Convention
shall be valid and considered part of the Constitution when approved
by a majority of the votes cast in an election at which they are
submitted to the people for their ratification pursuant to Article XV of
the Constitution.
It follows that from the very resolution of the Congress of the
Philippines which called for the 1971 Constitutional Convention, there
was a clear mandate that the amendments proposed by the 1971
Convention, in order to be valid and considered part of the
Constitution, must be approved by majority of the votes cast in an
election at which they are submitted to the people for the ratification as
provided in the Constitution.
This Court, in the case of Tolentino vs. Commission Elections, L-
35140, October 16, 1971 (41 SCRA 715), speaking through Mr. Justice
Barredo, said:
"The Constitutional Convention of 1971, as any other convention of the
same nature, owes its existence and all its authority and power from
the existing Constitution of the Philippines. This Convention has not
been called by the people directly as in the case of a revolutionary
convention which drafts the first Constitution of an entirely new
government born of either a war of liberation from a mother country or
of revolution against an existing government or of a bloodless seizure
of power a la coup d'etat. As to such kind of conventions, it is
absolutely true that the convention is completely without restraint and
omnipotent all wise, and it as to such conventions that the remarks of
Delegate Manuel Roxas of the Constitutional Convention of 1934
quoted by Senator Pelaez refer. No amount of rationalization can belie
the fact that the current convention came into being only because it
was called by a resolution of a joint session of Congress acting as a
constituent assembly by authority of Section 1, Article XV of the
present Constitution ... ."
xxx xxx xxx
"As to matters not related to its internal operation and the performance
of its assigned mission to propose amendments to the Constitution, the
Convention and its officers and members are all subject to all the
provisions of the existing Constitution. Now we hold that even as to its
latter task of proposing amendments to the Constitution, it is subject to
the provisions of Section 1 of Article XV."
In Proclamation No. 1102, issued on January 17, 1973, the President
of the Philippines certified that as a result of the voting before the
barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as
against 743,869 who voted for its rejection, and on the basis of the
overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines, the President proclaimed that
the Constitution proposed by the 1971 Convention has been ratified
and has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that
the provisions of Section 1 of Article XV of the Constitution of 1935
were not complied with. It is not necessary that evidence be produced
before this Court to show that no elections were held in accordance
with the provisions of the Election Code. Proclamation No. 1102
unequivocally states that the proposed Constitution of 1972 was voted
upon by the barangays. It is very clear, therefore, that the voting held in
these barangays is not the election contemplated in the provisions of
Section 1, Article XV, of the 1935 Constitution. The election
contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the
qualified and registered voters of the country would cast their votes,
where official ballots prepared for the purpose are used, where the
voters would prepare their ballots in secret inside the voting booths in
the polling places established in the different election precincts
throughout the country, where the election is conducted by election
inspectors duly appointed in accordance with the election law, where
the votes are canvassed and reported in a manner provided for in the
election law. It was this kind of election that was held on May 14, 1935,
when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was
ratified; on June 18, 1940, when the 1940 Amendments to the
Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14,
1967 when the amendments to the Constitution to increase the number
of Members of the House of Representatives and to allow the
Members of Congress to run in the elections for Delegates to the
Constitutional Convention of 1971 were rejected.
I cannot see any valid reason why the practice or procedure in the
past, in implementing the constitutional provision requiring the holding,
of an election to ratify or reject an amendment to the Constitution, has
not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree
order the ratification of the proposed 1972 Constitution thru a voting in
the barangays and make said result the basis for proclaiming the
ratification of the proposed constitution. It is very clear, to me, that
Proclamation No. 1102 was issued in complete disregard or in
violation, of the provisions of Section 1 of Article X of the 1935
Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as
to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, 14,298,814 members of the barangays
answered that there was no need for a plebiscite but that the vote of
the barangays should be considered a vote in a plebiscite. It would
thus appear that the barangays assumed the power to determine
whether a plebiscite as ordained in the Constitution be held or not.
Indeed, the provision of Section 1, Article XV of the Constitution was
completely disregarded.
The affirmative votes cast in the barangays are not the votes
contemplated in Section 1 of Article XV of the 1935 Constitution. The
votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
"An election is the embodiment of the popular will, the expression of
the sovereign power of the people. In common parlance, an election is
the act of casting and receiving the ballots, counting them, and making
the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).
"Election" implies a choice by an electoral body at the time and
substantially in the manner and with the safeguards provided by law
with respect to some question or issue. (Leffel v. Brown, Com. P1., 159
N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
"... the statutory method whereby qualified voters or electors pass on
various public matters submitted to them — the election of officers,
national, state, county, township — the passing on various other
questions submitted for their determination." (29 C.J.S. 13, citing Iowa-
Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa
358).
"Election" is expression of choice by voters of body politic. (Ginsburg v.
Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases, Permanent
Edition, p. 234).
"The right to vote may be exercised only on compliance with such
statutory requirements as have been set by the legislature." (People ex
rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63; Rothfels v.
Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38).
(Emphasis supplied).
In this connection I herein quote the pertinent provisions of the Election
Code of 1971:
"Sec. 2. Applicability of this Act. — All elections of public officers
except barrio officials and plebiscites shall be conducted in the manner
provided by this Code."
"Sec 99. Necessity of registration to be entitled to vote. — In order
that a qualified voter may vote in any regular or special election or in
any plebiscite, he must be registered in the permanent list of voters for
the city, municipality or municipal district in which he resides: Provided,
that no person shall register more than once without first applying for
cancellation of his previous registration." (Emphasis supplied). (Please
see also Sections 100-102, Election Code of 1971, R.A. No. 6388)
It is stated in Proclamation No. 1102 that the voting was done by the
members of citizens assemblies who are 15 years of age or over.
Under the provision of Section I of Article V of the 1935 Constitution,
the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the
barangays, except in very few instances, was done by the raising of
hands by the persons indiscriminately gathered to participate in the
voting, where even children below 15 years of age were included. This
is a matter of common observation, or of common knowledge, which
the Court may take judicial notice of. To consider the votes in the
barangays as expressive of the popular will and use them as the basis
in declaring whether a Constitution is ratified or rejected is to resort to a
voting by demonstrations, which is would mean the rule of the crowd,
113
which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the
supreme law of the land, should be ratified or not, must not be decided
by simply gathering people and asking them to raise their hands in
answer to the question of whether the vote for or against a proposed
Constitution. The election as provided by law should be strictly
observed in determining the will of the sovereign people in a
democracy. In our Republic, the will of the people must be expressed
through the ballot in a manner that is provided by law.
It is said that in a democracy, the will of the people is the supreme law.
Indeed, the people are sovereign, but the will of the people must be
expressed in a manner as the law and the demands a well-ordered
society require. The rule of law must prevail even over the apparent will
of the majority of the people, if that will had not been expressed, or
obtained, in accordance with the law. Under the rule of law, public
questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of adoption of a constitution or in
the ratification of an amendment to the Constitution.
The following citations are, to me, very relevant in the effort to
determine whether the proposed Constitution of 1972 had been validly
ratified, or not:
"When it is said that "the people" have the right to alter or amend the
constitution, it must not be understood that term necessarily includes
all the inhabitants of the state. Since the question of the adoption or
rejection of a proposed new constitution or constitutional amendment
must be answered a vote, the determination of it rests with those who,
by existing constitution, are accorded the right of suffrage. But the
qualified electors must be understood in this, as in many other cases,
as representing those who have not the right to participate in the ballot.
If a constitution should be abrogated and a new one adopted, by the
whole mass of people in a state acting through representatives not
chosen by the "people" in political sense of the term, but by the general
body of the populace, the movement would be extra-legal." (BIack's
Constitutional Law, Second Edition, pp. 47-48).
"The theory of our political system is that the ultimate sovereignty is in
the people, from whom springs all legitimate authority. The people of
the Union created a national constitution, and conferred upon it powers
of sovereignty on certain subjects, and the people of each State
created a State government, to exercise the remaining powers of
sovereignty so far as they were disposed to allow them to be exercised
at all. By the constitution which they establish, they not only tie up the
hands of their official agencies, but their own hands as well; and
neither the officers of the State, nor the whole people as an aggregate
body, are at liberty to take action in opposition to this fundamental law."
(Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in
Graham v. Jones, 3 So. 2d. 761, 782).
"The theory that a favorable vote by the electorate, however
unanimous, on a proposal to amend a constitution, may cure, render
innocuous, all or any antecedent failures to observe commands of that
Constitution in respect of the formulation or submission of proposed
amendments thereto, does not prevail in Alabama, where the doctrine
of the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome constitutional
principles in Collier v. Frierson, supra, as quoted in the original opinion,
ante. The people themselves are bound by the Constitution; and, being
so bound, are powerless, whatever their numbers, to change or thwart
its mandates, except through the peaceful means of a constitutional
convention, or of an amendment according to the mode therein
prescribed, or through the exertion of the original right of revolution.
"The Constitution may be set aside by revolution, but it can only be
amended in the way it provides," said Hobson, C.J., in McCreary v.
Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al.,
87 So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for the amendment, unless the vote was
taken as provided by the Constitution, is not sufficient to make a
change in that instrument. Whether a proposed amendment has been
legally adopted is a judicial question, for the court must uphold and
enforce the Constitution as written until it is amended in the way which
it provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A.
560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland
Paving Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16
Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723.
(McCreary v. Speer, 162 S.W. 99, 104).
"Provisions of a constitution regulating its own amendment, ... are not
merely directory, but are mandatory; and a strict observance of every
substantial mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed amendment.
These provisions are as binding on the people as on the legislature,
and the former are powerless by vote of acceptance to give legal
sanction to an amendment the submission of which was made in
disregard of the limitations contained in the constitution." (16 C.J.S. 35-
36. cited in Graham v. Jones, 3 So. 2d 761, 782).
"It is said that chaos and confusion in the government affairs of the
State will result from the Court's action in declaring the proposed
constitutional amendment void. This statement is grossly and
manifestly inaccurate. If confusion and chaos should ensue, it will not
be due to the action of the Court but will be the result of the failure of
the drafters joint resolution to observe, follow and obey the plain
essential provisions of the Constitution. Furthermore, to say that, the
Court disregards its sworn duty to enforce the Constitution, chaos and
confusion will result, is an inherently weak argument in favor of the
alleged constitutionality of the proposed amendment. It is obvious that,
if the Court were to countenance the violations of the sacramental
provisions Constitution, those who would thereafter desire to violate it
disregard its clear mandatory provisions would resort to the scheme of
involving and confusing the affairs of the State then simply tell the
Court that it was powerless to exercise one of its primary functions by
rendering the proper decree to make the Constitution effective."
(Graham v. Jones, 3 So. 2d. 761, 793-794).
In our jurisprudence I find an instance where this Court did not allow
the will of the majority to prevail, because the requirements of the law
were not complied with. In the case of Monsale v. Nico, 83 Phil. 758,
Monsale and Nico were both candidates for the office of Municipal
Mayor of Miagao, Iloilo, in the elections of November 11, 1947.
Monsale had duly filed his certificate of candidacy before the expiration
of the period for the filing of the same. However, on October 10, 1947,
after the period for the filing of the certificate of candidacy, Monsale
withdrew his certificate of candidacy. But on November 7, 1947
Monsale attempted to revive his certificate of candidacy by withdrawing
the withdrawal of certificate of candidacy. The Commission on
Elections, November 8, 1947, ruled that Monsale could no longer be a
candidate. Monsale nevertheless proceeded with his candidacy. The
boards of inspectors in Miagao, however, did not count the votes cast
for Monsale upon the ground that the votes cast for him were stray
votes, because he was considered as having no certificate of
candidacy. On the other hand, the boards of inspectors credited Nico
with 2,291 votes, and Nico was proclaimed elected. Monsale filed a
protest against the election of Nico in the Court of First Instance of
Iloilo. In the count of the ballots during the proceedings in the trial
court, it appeared that Monsale had obtained 2,877 votes while Nico
obtained 2,276 votes, or a margin of 601 votes in favor of Monsale.
The Court of First Instance of Iloilo decided the election protest in favor
of Monsale. Upon appeal by Nico, this Court reversed the decision of
the lower court. This Court declared that because Monsale withdrew
his certificate of candidacy, his attempt to revive it by withdrawing his
withdrawal of his certificate of candidacy did not restore the
effectiveness of his certificate of candidacy, and this Court declared
Nico the winner in spite of the fact that Monsale had obtained more
votes than he.
We have cited this Monsale case to show that the will of the majority of
the voters would not be given effect, as declared by this Court, if
certain legal requirements have not been complied with in order to
render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in
the citizens assemblies (barangays) is not the election that is provided
for in the 1935 Constitution for the ratification of the amendment to the
Constitution, the affirmative votes cast in those assemblies can not be
made the basis for declaring the ratification of the proposed 1972
Constitution, in spite of the fact that it was reported that 14,976,561
members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in
accordance with the provisions of Section 1 of Article XV of the 1935
Constitution of the Philippines. The rule of law mast be upheld.
My last observation: One of the valid grounds against the holding of the
plebiscite on January 15, 1973, as provided in Presidential Decree No.
73, is that there is no freedom on the part of the people to exercise
their right of choice because of the existence of martial law in our
country. The same ground holds true as regards to the voting of the
barangays on January 10 to 15, 1973. More so, because by General
Order No. 20, issued on January 7, 1973, the President of the
Philippines ordered "that the provisions of Section 3 of Presidential
Decree No. 73 in so far as they allow free public discussion of the
proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the
purpose of free and open debate on the proposed constitution, be
suspended in the meantime." It is, therefore, my view that voting in the
barangays on January 10, 1973 was not free, and so this is one added
reason why the results of the voting in the barangays should not be
made the basis for proclamation of the ratification of the proposed
Constitution.
It is my view, therefore, that Proclamation No. 1102 repugnant to the
1935 Constitution, and so it is invalid, and should not be given effect.
The Constitution of 1972 proposed by the 1971 Constitutional
Convention should be considered as not yet ratified by the people of
this Republic, and so it should not be given force and effect.
It is urged by the Solicitor General, however, that the voting in the
citizens assemblies was a substantial compliance with the provisions of
Article XV of the 1935 Constitution. The Solicitor General maintains
that the primary thrust of the provision of Article XV of the 1935
Constitution is that "to be valid, amendments must gain the approval of
the majority recognition of the democratic postulate that sovereign
resides in the people." It is not disputed that in a democratic
114
sovereignty resides in the people. But the term "people" must be
understood in its constitutional meaning, and they are "those persons
who are permitted by the Constitution to exercise the elective
franchise."8 Thus, in Section 2 of Article VII of the 1935 Constitution, it
is provided that "the President shall hold his office during a term of four
years and, together with the Vice-President chosen for the same term,
shall be elected by direct vote of the people..." Certainly under that
constitutional provision, the "people" who elect directly the President
and the Vice-President are no other than the persons who, under the
provisions of the same Constitution, are granted the right to vote. In
like manner the provision in Section 1 of Article II of the 1935
Constitution which says "Sovereignty resides in the people and all
government authority emanates from them", the "people" who exercise
the sovereign power are no other than the persons who have the right
to vote under the Constitution. In the case of Garchitorena vs.
Crescini9, this Court, speaking through Mr. Justice Johnson, said, "In
democracies, the people, combined, represent the sovereign power of
the State. Their sovereign authority is expressed through the ballot, of
the qualified voters, in duly appointed elections held from time to time,
by means of which they choose their officials for definite fixed periods,
and to whom they entrust, for the time being, as their representatives,
the exercise of the powers of government." In the case of Moya v. Del
Fierro, 10 this Court, speaking through Mr. Justice Laurel, said, "As
long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form
devised, must continue to be the means by which the great reservoir of
power must be emptied into the receptacular agencies wrought by the
people through their Constitution in the interest of good government
and the common weal. Republicanism, in so far as it implies the
adoption of a representative type of government, necessarily points to
the enfranchised citizen as a particle of popular sovereignty and as the
ultimate source of the established authority." And in the case of Abanil
v. Justice of the Peace of Bacolod, 11 this Court said: "In the scheme
of our present republican government, the people are allowed to have
a voice therein through the instrumentality of suffrage to be availed of
by those possessing certain prescribed qualifications. The people, in
clothing a citizen with the elective franchise for the purpose of securing
a consistent and perpetual administration of the government they
ordain, charge him with the performance of a duty in the nature of a
public trust, and in that respect constitute him a representative of the
whole people. This duty requires that the privilege thus bestowed
exclusively for the benefit of the citizen or class of citizens professing it,
but in good faith and with an intelligent zeal for the general benefit and
welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no
question, therefore, that when we talk of sovereign people, what is
meant are the people who act through the duly qualified and registered
voters who vote during an election that is held as provided in the
Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935
Constitution should be construed along with the term "election" as used
in the Provisions of Section 4 of the Philippine Independence Act of the
Congress of the United States, popularly known as the Tydings-
McDuffie Law (Public Act No. 127). Said Section 4 of the Tydings-
McDuffie Law provides as follows:
Section 4. After the President of the United States certified that the
constitution conforms with the provisions of this act, it shall be
submitted to the people of the Philippine Islands for their ratification or
rejection at an election to he held within months after the date of such
certification, on a date to be fixed by the Philippine Legislature at which
election, the qualified voters of the Philippine Islands shall have an
opportunity to vote directly or against the proposed constitution and
ordinances append thereto. Such election shall be held in such manner
as may prescribed by the Philippine Legislature to which the return of
the election shall be made. The Philippine Legislature shall certify the
result to the Governor-General of the Philippine Islands, together with a
statement of the votes cast, and a copy of said constitution ordinances.
If a majority of the votes cast shall be for the constitution, such vote
shall be deemed an expression of the will of the people of the
Philippine Independence, and the Governor-General shall, within thirty
days after receipt of the certification from the Philippine Legislature,
issue a proclamation for the election of officers of the government of
the Commonwealth of the Philippine Islands provided for in the
Constitution...
It can safely be said, therefore, that when the framers of the 1935
Constitution used, the word "election" in Section I Article XV of the
1935 Constitution they had no other idea in mind except the elections
that were periodically held in the Philippines for the choice of public
officials prior to the drafting of the 1935 Constitution, and also the
"election" mentioned in the Independence Act at which "the qualified
voters of the Philippine Islands shall have an opportunity to vote
directly for or against the proposed constitution..." It is but logical to
expect that the framers of the 1935 Constitution would provide a mode
of ratifying an amendment to that Constitution similar to the mode of
ratifying the original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935
Constitution could only be done by holding an election, as the term
"election" was understood, and practiced, when the 1935 Constitution
as drafted. The alleged referendum in the citizens assemblies —
participated in by persons aged 15 years or more, regardless of
whether they were qualified voters or not, voting by raising their hands,
and the results of the voting reported by the barrio or ward captain, to
the municipal mayor, who in turn submitted the report to the provincial
Governor, and the latter forwarding the reports to the Department of
Local Governments, all without the intervention of the Commission on
Elections which is the constitutional body which has exclusive charge
of the enforcement and administration of all laws, relative to the
conduct of elections — was not only a non-substantial compliance with
the provisions of Section 1 of Article XV of the 1935 Constitution but a
downright violation of said constitutional provision. It would be
indulging in sophistry to maintain that the voting in the citizens
assemblies amounted to a substantial compliance with the
requirements prescribed in Section 1 of Article XV of the 1935
Constitution.
It is further contended by the Solicitor General, that even if the
Constitution proposed by the 1971 Constitutional Convention was not
ratified in accordance with the provisions of Section 1 of Article XV of
the 1935 Constitution, the fact is that after the President of the
Philippines had issued Proclamation No. 1102 declaring that the said
proposed Constitution "has been ratified by overwhelming majority of
all the votes cast by the members of all the barangays (citizens
assemblies) throughout the Philippines and had thereby come into
effect" the people have accepted the new Constitution. What appears
to me, however, is that practically it is only the officials and employees
under the executive department of the Government who have been
performing their duties apparently in observance of the provisions of
the new Constitution. It could not be otherwise, because the President
of the Philippines, who is the head of the executive department, had
proclaimed that the new Constitution had come into effect, and his
office had taken the steps to implement the provisions of the new
Constitution. True it is, that some 92 members of the House of
Representatives and 15 members of the Senate, of the Congress of
the Philippines had expressed their option to serve in the interim
National Assembly that is provided for in Section 2 of Article XVII of the
proposed Constitution. It must be noted, however, that of the 15
senators who expressed their option to serve in the interim National
Assembly only one them took his oath of office; and of the 92 members
of the House of Representatives who opted to serve in the interim
National Assembly, only 22 took their oath of office. The fact that only
one Senator out of 24, and only 22 Representative out of 110, took
their oath of office, is an indication that only a small portion of the
members of Congress had manifested the acceptance of the new
Constitution. It is in the taking of the oath of office where the affiant
says that he swears to "support and defend the Constitution" that the
acceptance of the Constitution is made manifest. I agree with counsel
petitioners in L-36165 (Gerardo Roxas, et al. v. Alejandro Melchor, et
al.) when he said that the members of Congress who opted to serve in
the interim National Assembly did only ex abundante cautela, or by
way of a precaution, making sure, that in the event the new
Constitution becomes definitely effective and the interim National
Assembly convened, they can participate in legislative work in the
capacity as duly elected representatives of the people, which otherwise
they could not do if they did not manifest their option to serve, and that
option had to be made within 30 day from January 17, 1973, the date
when Proclamation No. 110 was issued. Of course, if the proposed
Constitution does not become effective, they continue to be members
of Congress under the 1935 Constitution. Let it be considered that the
members of the House of Representatives were elected in 1969 to
serve a term which will yet expire on December 31, 1973. Whereas, of
the Senators who opted to serve in the interim National Assembly, the
term of some of them will yet expire on December 31, 1973, some on
December 31, 1975, and the rest on December 31, 1977. Let if be
noted that 9 Senators did not opt to serve in the interim National
Assembly, and 18 members of the House of Representatives also did
not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new
Constitution. I cannot, in conscience, accept the reported affirmative
votes in the citizens assemblies as a true and correct expression by
the people of their approval, or acceptance, of the proposed
Constitution. I have my serious doubts regarding the freedom of the
people to express their views regarding the proposed Constitution
during the voting in the citizens assemblies, and I have also my serious
doubts regarding the truthfulness and accuracy of the reports of the
voting in the citizens assemblies. This doubt has been engendered in
my mind after a careful examination and study of the records of these
cases, particularly with respect to the reports of the voting in the
citizens assemblies. Perhaps, it may be said that the people, or the
inhabitants of this country, have acquiesced to the new Constitution, in
the sense that they have continued to live peacefully and orderly under
the government that has been existing since January 17, 1973 when it
was proclaimed that the new Constitution came into effect. But what
could the people do? In the same way that the people have lived under
martial law since September 23, 1972, they also have to live under the
government as it now exists, and as it has existed since the declaration
of martial law on September 21, 1972, regardless of what Constitution
is operative — whether it is the 1935 Constitution or the new
Constitution. Indeed, there is nothing that the people can do under the
circumstances actually prevailing in our country today —
circumstances, known to all, and which I do not consider necessary to
state in this opinion. I cannot agree, therefore, with my worthy
colleagues in the Court who hold the view that the people have
115
accepted the new Constitution, and that because the people have
accepted it, the new Constitution should be considered as in force,
regardless of the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971
Constitutional Convention has not come into effect. I do not say,
however, that the proposed Constitution is invalid. To me, the validity
of the proposed Constitution is not in issue in the cases before Us.
What the petitioners assail is not the validity of the proposed
Constitution but the validity of Presidential Proclamation No. 1102
which declares the proposed Constitution as having been ratified and
has come into effect. It being my considered view that the ratification of
the proposed Constitution, as proclaimed in Proclamation No. 1102, is
not in accordance with the provisions of Section 1 of Article XV, of the
1935 Constitution, I hold that Proclamation No. 1102 is invalid and
should not be given force and effect. Their proposed Constitution,
therefore, should be considered as not yet validly ratified, and so it is
not in force. The proposed Constitution may still be submitted to a
plebiscite in conformity with Section 1 of Article XV of the 1935
Constitution. Incidentally, I must state that the Constitution is still in
force, and this Court is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted
to the people in an election or plebiscite held in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution. In fact,
as we have adverted to in this opinion, this was the mandate of
Congress when, on March 16, 1967, it passed Resolution No. 2 calling
a convention to propose amendments to the 1935 Constitution. The
Court may take judicial notice of the fact that the President of the
Philippines has reassured the nation that the government of our
Republic since the declaration of martial law is not a revolutionary
government, and that he has been acting all the way in consonance
with his powers under the Constitution. The people of this Republic has
reason to be happy because, according to the President, we still have
a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and
pass a law calling for an election at which the Constitution proposed by
the 1971 Constitutional Convention will be submitted to the people their
ratification or rejection. A plebiscite called pursuant to Section 1 of
Article XV of the 1935 Constitution is an assurance to our people that
we still have in our country the Rule of Law and that the democratic
system of government that has been implanted in our country by the
Americans, and which has become part of our social and political
fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire
on my part to bring about stability in democratic and constitutional
system in our country. I feel that if this Court would give its imprimatur
to the ratification of the proposed Constitution, as announced in
Proclamation No. 1102, it being very clear that the provisions of
Section 1 of Article XV of the 1935 Constitution had not been complied
with, We will be opening the gates for a similar disregard of the
Constitution in the future. What I mean is that if this Court now declares
that a new Constitution is now in force because the members of the
citizens assemblies had approved the said new Constitution, although
that approval was not in accordance with the procedure and the
requirements prescribed in the 1935 Constitution, it can happen again
in some future time that some amendments to the Constitution may be
adopted, even in a manner contrary to the existing Constitution and the
law, and then said proposed amendment is submitted to the people in
any manner and what will matter is that a basis is claimed that there
was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government.
As a member of this Court I only wish to contribute my humble efforts
to prevent the happening of such a situation in the future.
It appearing to me that the announced ratification of the proposed
Constitution through the voting in the citizens assemblies is a clear
violation of the 1935 Constitution, what I say in this opinion is simply an
endeavor on my part to be true to my oath of office to defend and
support the 1935 Constitution. I am inspired by what the great jurist
and statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the purity and
sanctity of our Constitution, and the protection and vindication of
popular rights will be safe and secure in their reverential guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our
people from vanishing in our land, because, as Justice George
Sutherland of the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory of a vanished
liberty is that it was lost because its possessors failed to stretch forth a
saving hand while yet there was time.
I concur fully with the personal views expressed by the Chief Justice in
the opinion that he has written in these cases. Along with him, I vote to
deny the motion to dismiss and give due course to the petitions in
these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such
transcendental significance is likely to confront this Court in the near or
distant future as that posed by these petitions. For while the specific
substantive issue is the validity of Presidential Proclamation No. 1102,
an adverse judgment may be fraught with consequences that, to say
the least, are far-reaching in its implications. As stressed by
respondents, "what petitioners really seek to invalidate is the new
Constitution."1 Strict accuracy would of course qualify such statement
that what is in dispute, as noted in the opinion of the Chief Justice,
goes only as far as the validity of its ratification. It could very well be
though that the ultimate outcome is not confined within such limit, and
this is not to deny that under its aegis, there have been marked gains
in the social and economic sphere, but given the premise of continuity
in a regime under a fundamental law, which itself explicitly recognizes
the need for change and the process for bringing it about,2 it seems to
me that the more appropriate course is this Court to give heed to the
plea of petitioners that the most serious attention be paid to their
submission that the challenged executive act fails to meet the test of
constitutionality. Under the circumstances, with regret and with due
respect for the opinion of my brethren, I must perforce dissent. It would
follow therefore that the legal position taken by the Chief Justice as set
forth with his usual lucidity and thoroughness has, on the whole, my
concurrence, subject, of course, to reservations insofar as it contains
views and nuances to which I have in the past expressed doubts.
Nonetheless, I feel that a brief expression of the reasons for the stand I
take would not be amiss.
In coping with its responsibility arising from the function of judicial
review, this Court is not expected to be an oracle given to utterances of
eternal verities, but certainly it is more than just a keen but passive
observer of the contemporary scene. It is, by virtue of its role under the
separation of powers concept, involved not necessarily as a participant
in the formation of government policy, but as an arbiter of its legality.
Even then, there is realism in what Lerner did say about the American
Supreme Court as "the focal point of a set of dynamic forces which
[could play] havoc with the landmarks of the American state and
determine the power configuration of the day."3 That is why there is
this caveat. In the United States as here, the exercise of the power of
judicial review is conditioned on the necessity that the decision of a
case or controversy before it so requires. To repeat, the Justices of the
highest tribunal are not, as Justice Frankfurter made clear, "architects
of policy. They can nullify the policy of others, they are incapable of
fashioning their own solutions for social problems."4 Nonetheless, as
was stressed by Professors Black5 and Murphy,6 a Supreme Court by
the conclusion it reaches and the decision it renders does not merely
check the coordinate branches, but also by its approval stamps with
legitimacy the action taken. Thus in affirming constitutional supremacy,
the political departments could seek the aid of the judiciary. For the
assent it gives to what has been done conduces to its support in a
regime where the rule of law holds sway. In discharging such a role,
this Court must necessarily take in account not only what the exigent
needs of the present demand but what may lie ahead in the unexplored
and unknown vistas of the future. It must guard against the pitfall of
lack of understanding of the dominant forces at work to seek a better
life for all, especially those suffering from the pangs of poverty and
disease, by a blind determination to adhere to the status quo. It would
be tragic, and a clear case of its being recreant to its trust, if the
suspicion can with reason be entertained that its approach amounts
merely to a militant vigilantism that is violently opposed to any form of
social change. It follows then that it does not suffice that recourse be
had only to what passes for scholarship in the law that could be marred
by inapplicable erudition and narrow legalism. Even with due
recognition, such factors, however, I cannot, for reasons to be set more
lengthily and in the light of the opinion of the Chief Justice, reach the
same result as the majority of my brethren. For, in the last analysis, it is
my firm conviction that the institution of judicial review speaks too
clearly for the point to be missed that official action, even with due
allowance made for the good faith that invariably inspires the step
taken, has to face the gauntlet of a court suit whenever there is a
proper case with the appropriate parties.
1. Respondents are acting in the soundest constitutional
tradition when, at the outset, they would seek a dismissal of these
petitions. For them, the question raised is political and thus beyond the
jurisdiction of this Court. Such an approach cannot be indicted for
unorthodoxy. It is implicit in the concept of the rule of law that rights
belong to the people and the government possesses powers only.
Essentially then, unless such an authority may either be predicated on
express or implied grant in the Constitution or the statutes, an exercise
thereof cannot survive an inquiry as to its validity. Respondents
through Solicitor-General Mendoza would deny our competence to
proceed further. It is their view, vigorously pressed and plausibly
asserted, that since what is involved is not merely the effectivity of an
amendment but the actual coming into effect of a new constitution, the
matter is not justiciable. The immediate reaction is that such a
contention is to be tested in the light of the fundamental doctrine of
separation of powers that it is not only the function but the solemn duty
of the judiciary to determine what the law is and to apply it in cases and
controversies that call for decision.7 Since the Constitution pre-
eminently occupies the highest rung in the hierarchy of legal norms, it
is in the judiciary, ultimately this Tribunal, that such a responsibility is
vested. With the 1935 Constitution containing, as above noted, an
explicit article on the subject of amendments, it would follow that the
116
presumption to be indulged in is that the question of whether there has
been deference to its terms is for this Court to pass upon. What is
more, the Gonzales,8 Tolentino9 and Planas 10 cases speak
unequivocally to that effect. Nor is it a valid objection to this conclusion
that what was involved in those cases was the legality of the
submission and not ratification, for from the very language of the
controlling article, the two vital steps are proposal and ratification,
which as pointed out in Dillon v. Gloss, 11 "cannot be treated as
unrelated acts, but as succeeding steps in a single endeavor." 12 Once
an aspect thereof is viewed as judicial, there would be no justification
for considering the rest as devoid of that character. It would be for me
then an indefensible retreat, deriving no justification from
circumstances of weight and gravity, if this Court were to accede to
what is sought by respondents and rule that the question before us is
political.
On this point, it may not be inappropriate to refer to a separate opinion
of mine in Lansang v. Garcia. 13 Thus: "The term has been made
applicable to controversies clearly non-judicial and therefore beyond its
jurisdiction or to an issue involved in a case appropriately subject to its
cognizance, as to which there has been a prior legislative or executive
determination to which deference must be paid. It has likewise been
employed loosely to characterize a suit where the party proceeded
against is the President or Congress, or any branch thereof. If to be
delimited with accuracy, "political questions" should refer to such as
would under the Constitution be decided by the people in their
sovereign capacity or in regard to full discretionary authority is vested
either in the President or Congress. It is thus beyond the competence
of the judiciary to pass upon. Unless clearly falling within the
formulation, the decision reached by the political branches whether in
the form of a congressional act or an executive order could be tested in
court. Where private rights are affected, the judiciary has no choice but
to look into its validity. It is not to be lost sight of that such a power
comes into play if there be an appropriate proceeding that may be filed
only after each coordinate branch has acted. Even when the
Presidency or Congress possesses plenary powers, its improvident
exercise or the abuse thereof, if shown, may give rise to a justiciable
controversy. For the constitutional grant of authority is usually
unrestricted. There are limits to what may be done and how it is to be
accomplished. Necessarily then, the courts in the proper exercise of
judicial review could inquire into the question of whether or not either of
the two coordinate branches has adhered to what is laid down by the
Constitution. The question thus posed is judicial rather than political."
14 The view entertained by Professor Dodd is not too dissimilar. For
him such a term "is employed to designate certain types of functions
committed to the political organs of government (the legislative and
executive departments, or either of them) and not subject to judicial
investigation." 15 After a thorough study of American judicial decisions,
both federal and state, he could conclude: "The field of judicial
nonenforceability is important, but is not large when contrasted with the
whole body of written constitutional texts. The exceptions from judicial
enforceability fall primarily within the field of public or governmental
interests." 16 Nor was Professor Weston's formulation any different. As
was expressed by him: "Judicial questions, in what may be thought the
more useful sense, are those which the sovereign has set to be
decided in the courts. Political questions, similarly, are those which the
sovereign has entrusted to the so-called political departments of
government or has reserved to be settled by its own extra-
governmental action." 17 What appears undeniable then both from the
standpoint of Philippine as well as American decisions is the care and
circumspection required before the conclusion is warranted that the
matter at issue is beyond judicial cognizance, a political question being
raised.
2. The submission of respondents on this subject of political
question, admittedly one of complexity and importance, deserves to be
pursued further. They would derive much aid and comfort from the
writings of both Professor Bickel 18 of Yale and Professor Freund 19 of
Harvard, both of whom in turn are unabashed admirers of Justice
Brandeis. Whatever be the merit inherent in their lack of enthusiasm for
a more active and positive role that must be played by the United
States Supreme Court in constitutional litigation, it must be judged in
the light of our own history. It cannot be denied that from the well nigh
four decades of constitutionalism in the Philippines, even discounting
an almost similar period of time dating from the inception of American
sovereignty, there has sprung a tradition of what has been aptly termed
as judicial activism. Such an approach could be traced to the
valedictory address before the 1935 Constitutional Convention of Claro
M. Recto. He spoke of the trust reposed in the judiciary in these words:
"It is one of the paradoxes of democracy that the people at times place
more confidence in instrumentalities of the State other than those
directly chosen by them for the exercise of their sovereignty." 20 It
would thus appear that even then this Court was expected not to
assume an attitude of timidity and hesitancy when a constitutional
question is posed. There was the assumption of course that it would
face up to such a task, without regard to political considerations and
with no thought except that of discharging its trust. Witness these
words Justice Laurel in an early landmark case, People v. Vera, 21
decided in 1937: "If it is ever necessary for us to make vehement
affirmance during this formative period of political history, it is that we
are independent of the Executive no less than of the Legislative
department of our government — independent in the performance of
our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment
of our sworn duty as we see it and as we understand it." 22 The hope
of course was that such assertion of independence impartiality was not
mere rhetoric. That is a matter more appropriately left to others to
determine. It suffices to stake that what elicits approval on the part of
our people of a judiciary ever alert to inquire into alleged breaches of
the fundamental law is the realization that to do so is merely to do what
is expected of it and that thereby there is no invasion of spheres
appropriately belonging to the political branches. For it needs to be
kept in kind always that it can act only when there is a suit with proper
parties before it, wherein rights appropriate for judicial enforcement are
sought to be vindicated. Then, too, it does not approach constitutional
questions with dogmatism or apodictic certainty nor view them from the
shining cliffs of perfection. This is not to say though that it is satisfied
with an empiricism untroubled by the search for jural consistency and
rational coherence. A balance has to be struck. So juridical realism
requires. Once allowance made that for all its care and circumspection
this Court manned by human beings fettered by fallibility, nonetheless
earnestly and sincerely striving to do right, the public acceptance of its
vigorous pursuit of the task of assuring that the Constitution be obeyed
is easy to understand. It has not in the past shirked its responsibility to
ascertain whether there has been compliance with and fidelity to
constitutional requirements. Such is the teaching of a host of cases
from Angara v. Electoral
Commission 23 to Planas v. Commission on Elections. 24 It should
continue to exercise its jurisdiction, even in the face of a plausible but
not sufficiently persuasive insistence that the matter before it is
political.
Nor am I persuaded that the reading of the current drift in American
legal scholarship by the Solicitor-General and his equally able
associates presents the whole picture. On the question of judicial
review, it is not a case of black and white; there are shaded areas. It
goes too far, in my view, if the perspective is one of dissatisfaction,
with its overtones of distrust. This expression of disapproval has not
escaped Dean Rostow of Yale, who began one of his most celebrated
legal essays. The Democratic Character of Judicial Review, thus: "A
theme of uneasiness, and even of guilt, colors the literature about
judicial review. Many of those who have talked, lectured, and written
about the Constitution have been troubled by a sense that judicial
review is undemocratic." 25 He went on to state: "Judicial review, they
have urged, is an undemocratic shoot on an otherwise respectable
tree. It should be cut off, or at least kept pruned and
inconspicuous." 26 His view was precisely the opposite. Thus: "The
power of constitutional review, to be exercised by some part of the
government, is implicit in the conception of a written constitution
delegating limited powers. A written constitution would promote discord
rather than order in society if there were no accepted authority to
construe it, at the least in case of conflicting action by different
branches of government or of constitutionally unauthorized
governmental action against individuals. The limitation and separation
of powers, if they are to survive, require a procedure for independent
mediation and construction to reconcile the inevitable disputes over the
boundaries of constitutional power which arise in the process of
government." 27 More than that, he took pains to emphasize: "Whether
another method of enforcing the Constitution could have been devised,
the short answer is that no such method developed. The argument
over the constitutionality of judicial review has long since been settled
by history. The power and duty of the Supreme Court to declare
statutes or executive action unconstitutional in appropriate cases is
part of the living Constitution. 'The course of constitutional history,' Mr.
Justice Frankfurter recently remarked, 'has cast responsibilities upon
the Supreme Court which it would be "stultification" for it to evade.' " 28
Nor is it only Dean Rostow who could point Frankfurter, reputed to
belong to the same school of thought opposed to judicial activism, if
not its leading advocate during his long stay in the United States
Supreme Court, as one fully cognizant of the stigma that attaches to a
tribunal which neglects to meet the demands of judicial review. There
is a statement of similar importance from Professor Mason: "In Stein v.
New York Frankfurter remarked, somewhat self-consciously perhaps,
that the 'duty of deference cannot be allowed imperceptibly to slide into
abdication.' " 29 Professor Konefsky, like Dean Rostow, could not
accept characterization of judicial review as undemocratic. Thus his
study of Holmes and Brandeis, the following appears: "When it is said
that judicial review is an undemocratic feature of our political system, it
ought also to be remembered that architects of that system did not
equate constitutional government with unbridled majority rule. Out of
their concern for political stability and security for private rights, ..., they
designed a structure whose keystone was to consist of barriers to the
untrammeled exercise of power by any group. They perceived no
contradiction between effective government and constitutional checks.
To James Madison, who may legitimately be regarded as the
philosopher of the Constitution, the scheme of mutual restraints was
the best answer to what he viewed as the chief problem in erecting a
system of free representative government: 'In framing a government
which is to be administered by men over men, the great difficulty lies in
this: you must first enable the government to control the governed; and
in the next place oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review. Could it
be that the tone of discontent apparent in the writings of eminent
authorities on the subject evince at the most fears that the American
Supreme Court might overstep the bounds allotted to the judiciary? It
117
cannot be a denial of the fitness of such competence being vested in
judges and of their being called upon to fulfill such a trust whenever
appropriate to the decision of a case before them. That is why it has
been correctly maintained that notwithstanding the absence of any
explicit provision in the fundamental law of the United States
Constitution, that distinguished American constitutional historian,
Professor Corwin, could rightfully state that judicial review "is simply
incidental to the power of courts to interpret the law, of which the
Constitution is part, in connection with the decision of cases." 31 This
is not to deny that there are those who would place the blame or the
credit, depending upon one's predilection, on Marshall's epochal
opinion in Marbury v. Madison. 32 Curtis belonged to that persuasion.
As he put it: "The problem was given no answer by the Constitution. A
hole was left where the Court might drive in the peg of judicial
supremacy, if it could. And that is what John Marshall did." 33 At any
rate there was something in the soil of American juristic thought
resulting in this tree of judicial power so precariously planted by
Marshall striking deep roots and showing wonderful vitality and
hardiness. It now dominates the American legal scene. Through it,
Chief Justice Hughes, before occupying that exalted position, could
state in a lecture: "We are under a Constitution, but the Constitution is
what the judges say it is ... ." 34 The above statement is more than just
an aphorism that lends itself to inclusion in judicial anthologies or bar
association speeches. It could and did provoke from Justice Jackson,
an exponent of the judicial restraint school of thought, this meaningful
query: "The Constitution nowhere provides that it shall be what the
judges say it is. How, did it come about that the statement not only
could be but could become current as the most understandable
comprehensive summary of American Constitutional law?" 35 It is no
wonder that Professor Haines could pithily and succinctly sum up the
place of the highest American tribunal in the scheme of things in this
wise: "The Supreme Court of the United States has come to be
regarded as the unique feature of the American governmental system."
36 Let me not be misunderstood. There is here no attempt to close
one's eyes to a discernible tendency on the part of some distinguished
faculty minds to look askance at what for them may be inadvisable
extension of judicial authority. For such indeed is the case as reflected
in two leading cases of recent vintage, Baker v. Carr, 37 decided in
1962 and Powell v. MacCormack, 38 in 1969, both noted in the opinion
of the Chief Justice. The former disregarded the warning of Justice
Frankfurter in Colegrove v. Green 39 about the American Supreme
Court declining jurisdiction on the question of apportionment as to do
so would cut very deep into the very being of Congress." 40 For him,
the judiciary "ought not to enter this political thicket." Baker has since
then been followed; it has spawned a host of cases. 41 Powell, on the
question of the power of a legislative body to exclude from its ranks a
person whose qualifications are uncontested, for many the very staple
of what is essentially political, certainly goes even further than the
authoritative Philippine decision of Vera v. Avelino, 42 It does look then
that even in the United States, the plea for judicial self-restraint, even if
given voice by those competent in the field of constitutional law, has
fallen on deaf ears. There is in the comments of respondents an
excerpt from Professor Freund quoting from one of his essays
appearing in a volume published in 1968. It is not without interest to
note that in another paper, also included therein, he was less than
assertive about the necessity for self-restraint and apparently mindful
of the claims of judicial activism. Thus: "First of all, the Court has a
responsibility to maintain the constitutional order, the distribution of
public power, and the limitations on that power." 43 As for Professor
Bickel, it has been said that as counsel for the New York Times in the
famous Vietnam papers case, 44 he was less than insistent on the
American Supreme Court exercising judicial self-restraint. There are
signs that the contending forces on such question, for some an
unequal contest, are now quiescent. The fervor that characterized the
expression of their respective points of view appears to have been
minimized. Not that it is to be expected that it will entirely disappear,
considering how dearly cherished are, for each group, the convictions,
prejudices one might even say, entertained. At least what once was
fitly characterized as the booming guns of rhetoric, coming from both
directions, have been muted. Of late, scholarly disputations have been
centered on the standards that should govern the exercise of the
power of judicial review. In his celebrated Holmes lecture in 1959 at the
Harvard Law School, Professor Wechsler advocated as basis for
decision what he termed neutral principles of constitutional law. 45 It
has brought forth a plethora of law review articles, the reaction ranging
from guarded conformity to caustic criticism. 46 There was, to be sure,
no clear call to a court in effect abandoning the responsibility
incumbent on it to keep governmental agencies within constitutional
channels. The matter has been put in temperate terms by Professor
Frank thus: "When allowance has been made for all factors, it
nevertheless seems to me that the doctrine of political questions ought
to be very sharply confined to where the functional reasons justify it
and that in a give involving its expansion there should be careful
consideration also of the social considerations which may militate
against it. The doctrine has a certain specious charm because of its
nice intellectualism and because of the fine deference it permits to
expertise, to secret knowledge, and to the prerogatives of others. It
should not be allowed to grow as a merely intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal, coming from
such impeccable sources of the worth and significance of judicial
review in the United States. I cannot resist the conclusion then that the
views advanced on this subject by distinguished counsel for
petitioners, with Senators Lorenzo M. Tañada and Jovito Salonga at
the van, rather than the advocacy of the Solicitor-General, possess the
greater weight and carry persuasion. So much then for the invocation
of the political question principle as a bar to the exercise of our
jurisdiction.
3. That brings me to the issue of the validity of the ratification.
The crucial point that had to be met is whether Proclamation No. 1102
manifests fidelity to the explicit terms of Article XV. There is, of course,
the view not offensive to reason that a sense of the realities should
temper the rigidity of devotion to the strict letter of the text to allow
deference to its spirit to control. With due recognition of its force in
constitutional litigation, 48 if my reading of the events and the process
that led to such proclamation, so clearly set forth in the opinion of the
Chief Justice, is not inaccurate, then it cannot be confidently asserted
that there was such compliance. It would be to rely on conjectural
assumptions that did founder on the rock of the undisputed facts. Any
other conclusion would, for me, require an interpretation that borders
on the strained. So it has to be if one does not lose sight of how the
article on amendments is phrased. A word, to paraphrase Justice
Holmes may not be a crystal, transparent and unchanged, but it is not,
to borrow from Learned Hand, that eminent jurist, a rubber band either.
It would be unwarranted in my view then to assert that the
requirements of the 1935 Constitution have been met. There are
American decisions, 49 and they are not few in number, which require
that there be obedience to the literal terms of the applicable provision.
It is understandable why it should be thus. If the Constitution is the
supreme law, then its mandate must be fulfilled. No evasion is
tolerated. Submission to its commands can be shown only if each and
every word is given meaning rather than ignored or disregarded. This
is not to deny that a recognition conclusive effect attached to the
electorate manifesting its will to vote affirmatively on the amendments
proposed poses an obstacle to the judiciary being insistent on the
utmost regularity. Briefly stated, substantial compliance is enough. A
great many American State decisions may be cited in support of such a
doctrine. 50
Even if the assumption be indulged in that Article XV is not phrased in
terms too clear to be misread, so that this Court is called upon to give
meaning and perspective to what could be considered words of vague
generality, pregnant with uncertainty, still whatever obscurity it
possesses is illumined when the light of the previous legislation is
thrown on it. In the first Commonwealth Act, 51 submitting to the
Filipino people for approval or disapproval certain amendments to the
original ordinance appended to the 1935 Constitution, it was made that
the election for such purpose was to "be conducted in conformity with
the provisions of the Election Code insofar as the same may be
applicable." 52 Then came the statute, 53 calling for the plebiscite on
the three 1940 amendments providing for the plebiscite on the three
1930 amendments providing for a bicameral Congress or a Senate and
a House of Representatives to take the place of a unicameral National
Assembly, 54 reducing the term of the President to four years but
allowing his re-election with the limitation that he cannot serve more
than eight consecutive years, 55 and creating an independent
Commission on Elections. 56 Again, it was expressly provided that the
election "shall be conducted in conformity with the provisions of the
Election Code in so far as the same may be applicable." 57 The
approval of the present parity amendment was by virtue of a Republic
Act 58 which specifically made applicable the then Election Code. 59
There is a similar provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional
Convention, saw to it that there be an increase in the membership of
the House of Representatives a maximum of one hundred eighty and
assured the eligibility of senators and representatives to become
members of such constituent body without forfeiting their seats, as
proposed amendments to be voted on in the 1967 elections. 61 That is
the consistent course of interpretation followed by the legislative
branch. It is most persuasive, if not controlling. The restraints thus
imposed would set limits to the Presidential action taken, even on the
assumption that either as an agent of the Constitutional Convention or
under his martial law prerogatives, he was not devoid of power to
specify the mode of ratification. On two vital points, who can vote and
how they register their will, Article XV had been given a definitive
construction. That is why I fail to see sufficient justification for this
Court affixing the imprimatur of its approval on the mode employed for
the ratification of the revised Constitution as reflected in Proclamation
No. 1102.
4. Nor is the matter before us solely to be determined by the
failure to comply with the requirements of Article XV. Independently of
the lack of validity of the ratification of the new Constitution, if it be
accepted by the people, in whom sovereignty resides according to the
Constitution, 62 then this Court cannot refuse to yield assent to such a
political decision of the utmost gravity, conclusive in its effect. Such a
fundamental principle is meaningless if it does not imply, to follow
Laski, that the nation as a whole constitutes the "single center of
ultimate reference," necessarily the possessor of that "power that is
able to resolve disputes by saying the last word." 63 If the origins of the
democratic polity enshrined in the 1935 Constitution with the
declaration that the Philippines is a republican state could be traced
back to Athens and to Rome, it is no doubt true, as McIver pointed out,
that only with the recognition of the nation as the separate political unit
in public law is there the juridical recognition of the people composing it
118
"as the source of political authority." 64 From them, as Corwin did
stress, emanate "the highest possible embodiment of human will," 65
which is supreme and must be obeyed. To avoid any confusion and in
the interest of clarity, it should be expressed in the manner ordained by
law. Even if such is not the case, however, once it is manifested, it is to
be accepted as final and authoritative. The government which is merely
an agency to register its commands has no choice but to submit. Its
officials must act accordingly. No agency is exempt such a duty, not
even this Court. In that sense, the lack of regularity in the method
employed to register its wishes is fatal in its consequences. Once the
fact of acceptance by people of a new fundamental law is made
evident, the judiciary is left with no choice but to accord it recognition.
The obligation to render it obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine.
While certainly not controlling, they are not entirely bereft of persuasive
significance. In Miller v. Johnson, 66 decided in 1892, it was set forth in
the opinion of Chief Justice Holt that on May 3, 1890, an act was
passed in Kentucky, providing for the calling of a convention for the
purpose of framing a new constitution and the election of delegates. It
provided that before any form of constitution made by them should
become operative, it should be submitted to the vote of the state and
ratified by a majority of those voting. The constitution then in force
authorized the legislature, the preliminary steps having been taken, to
call a convention "for the purpose of readopting, amending, or
changing" it contained no provision giving the legislature the power to
require a submission of its work to a vote of the people. The
convention met in September, 1890. By April, 1891, it completed a
draft of a constitution, submitted it to a popular vote, and then
adjourned until September following. When the convention
reassembled, the delegates made numerous changes in instrument.
As thus amended, it was promulgated by the convention of September
28, 1891, as the new constitution. An action was brought to challenge
its validity. It failed in the lower court. In affirming such judgment
dismissing the action, Chief Justice Holt stated: "If a set of men, not
selected by the people according to the forms of law, were to formulate
an instrument and declare it the constitution, it would undoubtedly be
the duty of the courts to declare its work a nullity. This would be
revolution, and this the courts of the existing government must resist
until they are overturned by power, and a new government established.
The convention, however, was the offspring of law. The instrument
which we are asked to declare invalid as a constitution has been made
and promulgated according to the forms of law. It is a matter of current
history that both the executive and legislative branches of the
government have recognized its validity as a constitution, and are now
daily doing so. ... While the judiciary should protect the rights of the
people with great care and jealousy, because this is its duty, and also
because; in times of great popular excitement, it is usually their last
resort, yet it should at the same time be careful not to overstep the
proper bounds of its power, as being perhaps equally dangerous; and
especially where such momentous results might follow as would be
likely in this instance, if the power of the judiciary permitted, and its
duty requires, the overthrow of the work of the convention." 67 In
Taylor v. Commonwealth, 68 a 1903 decision, it was contended that
the Virginia Constitution reclaimed in 1902 is invalid as it was ordained
and promulgated by the convention without being submitted for
ratification or rejection by the people. The Court rejected such a view.
As stated in the opinion of Justice Harrison: "The Constitution of 1902
was ordained and proclaimed by a convention duly called by direct
vote of the people of the state to revise and amend the Constitution of
1869. The result of the work of the convention has been recognized,
accepted, and acted upon as the only valid Constitution of the state by
the Governor in swearing fidelity to it and proclaiming it, as directed
thereby; by the Legislature in its formal official act adopting a joint
resolution, July 15, 1902, recognizing the Constitution ordained by the
convention which assembled in the city of Richmond on the 12th day of
June, 1901, as the Constitution of Virginia; by the individual oaths of
members to support it, and by enforcing its provisions; and the people
in their primary capacity by peacefully accepting it and acquiescing in
it, by registering as voters under it to the extent of thousands
throughout the state, and by voting, under its provisions, at a general
election for their representatives in the Congress of the United States.
The Constitution having been thus acknowledged and accepted by the
office administering the government and by the people of the state, and
there being no government in existence under the Constitution of 1869
opposing or denying its validity, we have no difficulty in holding that the
Constitution in question, which went into effect at noon on the 10th day
of July, 1902, is the only rightful, valid, and existing Constitution of this
state, and that to it all the citizens of Virginia owe their obedience and
loyal allegiance." 69
It cannot be plausibly asserted then that premises valid in law are
lacking for the claim that the revised Constitution has been accepted
by the Filipino people. What is more, so it has been argued, it is not
merely a case of its being implied. Through the Citizens Assemblies,
there was a plebiscite with the result as indicated in Proclamation No.
1102. From the standpoint of respondents then, they could allege that
there was more than just mere acquiescence by the sovereign people.
Its will was thus expressed formally and unmistakably. It may be added
that there was nothing inherently objectionable in the informal method
followed in ascertaining its preference. Nor is the fact that Filipinos of
both sexes above the age of fifteen were given the opportunity to vote
to be deplored. The greater the base of mass participation, the more
there is fealty to the democratic concept. It does logically follow
likewise that such circumstances being conceded, then no justifiable
question may be raised. This Court is to respect what had thus
received the people's sanction. That is not for me though whole of it.
Further scrutiny even then is not entirely foreclosed. There is still an
aspect that is judicial, an inquiry may be had as to whether such
indeed was the result. This is no more than what the courts do in
election cases. There are other factors to bear in mind. The fact that
the President so certified is well-nigh conclusive. There is in addition
the evidence flowing from the conditions of peace and stability. There
thus appears to be conformity to the existing order of things. The daily
course of events yields such a conclusion. What is more, the officials
under the 1935 Constitution, including practically all Representatives
and a majority of the Senators, have signified their assent to it. The
thought persists, however, that as yet sufficient time has not elapsed to
be really certain.
Nor is this all. There is for me an obstacle to the petitions being
dismissed for such ascertainment of popular will did take place during
a period of martial law. It would have been different had there been
that freedom of debate with the least interference, thus allowing a free
market of ideas. If it were thus, it could be truly said that there was no
barrier to liberty of choice. It would be a clear-cut decision either way.
One could be certain as to the fact of the acceptance of the new or of
adherence to the old. This is not to deny that votes are cast by
individuals with their personal concerns uppermost in mind, worried
about their immediate needs and captive to their existing moods. That
is inherent in any human institution, much more so in a democratic
polity. Nor is it open to any valid objection because in the final analysis
the state exists for the individuals who in their collectivity compose it.
Whatever be their views, they are entitled to respect. It is difficult for
me, however, at this stage to feel secure in the conviction that they did
utilize the occasion afforded to give expression to what was really in
their hearts. This is not to imply that such doubt could not be dispelled
by evidence to the contrary. If the petitions be dismissed however, then
such opportunity is forever lost.
5. With the foregoing legal principles in mind, I find myself
unable to join the ranks of my esteemed brethren who vote for the
dismissal of these petitions. I cannot yield an affirmative response to
the plea of respondents to consider the matter closed, the proceedings
terminated once and for all. It is not an easy decision to reach. It has
occasioned deep thought and considerable soul-searching. For there
are countervailing considerations that exert a compulsion not easy to
resist. It can be asserted with truth, especially in the field of social and
economic rights, that with the revised Constitution, there is an
auspicious beginning for further progress. Then too it could resolve
what appeared to be the deepening contradictions of political life,
reducing at times governmental authority to near impotence and
imparting a sense of disillusionment in democratic processes. It is not
too much to say therefore that there had indeed been the revision of a
fundamental law to vitalize the very values out of which democracy
grows. It is one which has all the earmarks of being responsive to the
dominant needs of the times. It represents an outlook cognizant of the
tensions of a turbulent era that is the present. That is why for some
what was done represented an act of courage and faith, coupled with
the hope that the solution arrived at is a harbinger of a bright and rosy
future.
It is such a comfort then that even if my appraisal of the situation had
commanded a majority, there is not, while these lawsuits are being
further considered, the least interference, with the executive
department. The President in the discharge of all his functions is
entitled to obedience. He remains commander-in-chief with all the
constitutional powers it implies. Public officials can go about their
accustomed tasks in accordance with the revised Constitution. They
can pursue even the tenor of their ways. They are free to act according
to its tenets. That was so these past few weeks, even petitions were
filed. There was not at any time any thought of any restraining order.
So it was before. That is how things are expected to remain even if the
motions to dismiss were not granted. It might be asked though,
suppose the petitions should prevail? What then? Even so, the
decision of this Court need not be executory right away. Such a
disposition of a case before this Court is not novel. That was how it
was done in the Emergency Powers Act controversy. 70 Once
compliance is had with the requirements of Article XV of the 1935
Constitution, to assure that the coming force of the revised charter is
free from any taint of infirmity, then all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of
unreality, to cherish illusions that cannot stand the test of actuality.
What is more, it may give the impression of reliance on what may, for
the practical man of affairs, be no more than gossamer distinctions and
sterile refinements unrelated to events. That may be so, but I find it
impossible to transcend what for me are the implications of traditional
constitutionalism. This is not to assert that an occupant of the bench is
bound to apply with undeviating rigidity doctrines which may have
served their day. He could at times even look upon them as mere
scribblings in the sands to be washed away by the advancing tides of
the present. The introduction of novel concepts may be carried only so
far though. As Cardozo put the matter: "The judge, even when he is
free, is still not wholly free. He is not to innovate at pleasure. He is not
a knight-errant, roaming at will in pursuit of his own ideal of beauty or
119
of goodness. He is to draw his inspiration from consecrated principles.
He is not to yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system, and subordinated to
"the primordial necessity of order in the social life." Wide enough in all
conscience is the field of discretion that remains." 71 Moreover what
made it difficult for this Court to apply settled principles, which for me
have not lost their validity, is traceable to the fact that the revised
Constitution was made to take effect immediately upon ratification. If a
period of time were allowed to elapse precisely to enable the judicial
power to be exercised, no complication would have arisen. Likewise,
had there been only one or two amendments, no such problem would
be before us. That is why I do not see sufficient justification for the
orthodoxies of constitutional law not to operate.
Even with full realization then that the approach pursued is not all that
it ought to have been and the process of reasoning not without its
shortcomings, the basic premises of a constitutional democracy, as I
understand them and as set forth in the preceding pages, compel me
to vote the way I did.
TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he painstakingly
deals with the momentous issues of the cases at bar in all their
complexity commands my concurrence.
I would herein make an exposition of the fundamental reasons and
considerations for my stand.
The unprecedented and precedent-setting issue submitted by
petitioners for the Court's resolution is the validity and constitutionality
of Presidential Proclamation No. 1102 issued on January 17, 1973,
certifying and proclaiming that the Constitution proposed by the 1971
Constitutional Convention "has been ratified by an overwhelming
majority of all the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby
come into effect."
More specifically, the issue submitted is whether the purported
ratification of the proposed Constitution by means of the Citizens
Assemblies has substantially complied with the mandate of Article XV
of the existing Constitution of 1935 that duly proposed amendments
thereto, in toto or parts thereof, "shall be valid as part of this
Constitution when approved by a majority of the votes cast at an
election at which the amendments are submitted to the people for their
ratification."1
A necessary corollary issue is whether the purported ratification of the
proposed Constitution as signed on November 30, 1972 by the 1971
Constitutional Convention may be said also to have substantially
complied with its own mandate that "(T)his Constitution shall take
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."2
Respondents contend that "(A)lthough apparently what is sought to be
annulled is Proclamation No. 1102, what petitioners really seek to
invalidate is the new Constitution", and their actions must be
dismissed, because:
— "the Court may not inquire into the validity of the procedure for
ratification" which is "political in character" and that "what is sought to
be invalidated is not an act of the President but of the people;
— "(T)he fact of approval of the new Constitution by an overwhelming
majority of the votes cast as declared and certified in Proclamation No.
1102 is conclusive on the courts;
— "Proclamation No. 1102 was issued by the President in the exercise
of legislative power under martial law. ... Alternatively, or
contemporaneously, he did so as "agent" of the Constitutional
Convention;"
— "alleged defects, such as absence of secret voting, enfranchisement
of persons less than 21 years, non supervision (by) the Comelec are
matters not required by Article XV of the 1935 Constitution"; (sic)
— "after ratification, whatever defects there might have been in the
procedure are overcome and mooted (and muted) by the fact of
ratification"; and
— "(A)ssuming finally that Article XV of the 1935 Constitution was not
strictly followed, the ratification of the new Constitution must
nonetheless be respected. For the procedure outlined in Article XV was
not intended to be exclusive of other procedures, especially one which
contemplates popular and direct participation of the citizenry ... ."3
To test the validity of respondents' submittal that the Court, in annulling
Proclamation No. 1102 would really be "invalidating the new
Constitution", the terms and premises of the issues have to be defined.
— Respondents themselves assert that "Proclamation No. 1102 ... is
plainly merely declaratory of the fact that the 1973 Constitution has
been ratified and has come into force.4
— The measure of the fact of ratification is Article XV of the 1935
Constitution. This has been consistently held by the Court in the
Gonzales:5 and Tolentino6 cases.
— In the Tolentino case, this Court emphasized "that the provisions of
Section 1 of Article XV of the Constitution, dealing with the procedure
or manner of amending the fundamental law are binding upon the
Convention and the other departments of the government. It must be
added that ... they are no less binding upon the people."7
— In the same Tolentino case, this Court further proclaimed that "as
long as any amendment is formulated and submitted under the aegis of
the present Charter, any proposal for such amendment which is not in
conformity with the letter, spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of this Court."8
— As continues to be held by a majority of this Court, proposed
amendments to the Constitution "should be ratified in only one way,
that is, in an election or plebiscite held in accordance with law and
participated in only by qualified and duly registered voters"9 and under
the supervision of the Commission on Elections. 10
— Hence, if the Court declares Proclamation 1102 null and void
because on its face, the purported ratification of the proposed
Constitution has not faithfully nor substantially observed nor complied
with the mandatory requirements of Article XV of the (1935)
Constitution, it would not be "invalidating" the proposed new
Constitution but would be simply declaring that the announced fact of
ratification thereof by means of the Citizens Assemblies referendums
does not pass the constitutional test and that the proposed new
Constitution has not constitutionally come into existence.
— Since Proclamation 1102 is acknowledged by respondent to be
"plainly merely declaratory" of the disputed fact of ratification, they
cannot assume the very fact to be established and beg the issue by
citing the self-same declaration as proof of the purported ratification
therein declared.
What complicates the cases at bar is the fact that the proposed 1972
Constitution was enforced as having immediately taken effect upon the
issuance on January 17, 1973 of Proclamation 1102 and the question
of whether "confusion and disorder in government affairs would (not)
result" from a judicial declaration of nullity of the purported ratification is
raised by the Solicitor-General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the
Emergency Powers cases, 11 wherein the Court in its Resolution of
September 16, 1949 after judgment was initially not obtained on
August 26, 1949 for lack of the required six (6) votes, finally declared in
effect that the pre-war emergency powers delegated by Congress to
the President, under Commonwealth Act 671 in pursuance of Article
VI, section 26 of the Constitution, had ceased and became inoperative
at the latest in May, 1946 when Congress met in its first regular
session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and
important rights that had arisen under executive orders "issued in good
faith and with the best of intentions by three successive Presidents,
and some of them may have already produced extensive effects on the
life of the nation" — in the same manner as may have arisen under the
bona fide acts of the President now in the honest belief that the 1972
Constitution had been validly ratified by means of the Citizens
Assemblies referendums — and indicated the proper course and
solution therefor, which were duly abided by and confusion and
disorder as well as harm to public interest and innocent parties thereby
avoided as follows:
Upon the other hand, while I believe that the emergency powers had
ceased in June 1945, I am not prepared to hold that all executive
orders issued thereafter under Commonwealth Act No. 671, are per se
null and void. It must be borne in mind that these executive orders had
been issued in good faith and with the best of intentions by three
successive Presidents, and some of them may have already produced
extensive effects in the life of the nation. We have, for instance,
Executive Order No. 73, issued on November 12, 1945, appropriating
the sum of P6,750,000 for public works; Executive Order No. 86,
issued on January 7, 1946, amending a previous order regarding the
organization of the Supreme Court; Executive Order No. 89, issued on
January 1, 1946, reorganizing Courts of First Instance; Executive
Order No. 184, issued on November 19, 1948, controlling rice and
palay to combat hunger; and other executive orders appropriating
funds for other purposes. The consequences of a blanket nullification
of all these executive orders will be unquestionably serious and
harmful. And I hold that before nullifying them, other important
circumstances should be inquired into, as for instance, whether or not
they have been ratified by Congress expressly or impliedly, whether
their purposes have already been accomplished entirely or partially,
and in the last instance, to what extent; acquiescence of litigants; de
facto officers; acts and contracts of parties acting in good faith; etc. It is
120
my opinion that each executive order must be viewed in the light of its
peculiar circumstances, and, if necessary and possible, nullifying it,
precautionary measures should be taken to avoid harm to public
interest and innocent parties. 12
Initially, then Chief Justice Moran voted with a majority of the Court to
grant the Araneta and Guerrero petitions holding null and void the
executive orders on rentals and export control but to defer judgment on
the Rodriguez and Barredo petitions for judicial declarations of nullity of
the executive orders appropriating the 1949-1950 fiscal year budget for
the government and P6 million for the holding of the 1949 national
elections. After rehearsing, he further voted to also declare null and
void the last two executive orders appropriating funds for the 1949
budget and elections, completing the "sufficient majority" of six against
four dissenting justices "to pronounce a valid judgment on that matter."
13
Then Chief Justice Moran, who penned the Court's majority resolution,
explained his vote for annulment despite the great difficulties and
possible "harmful consequences" in the following passage, which
bears re-reading:
However, now that the holding of a special session of Congress for the
purpose of remedying the nullity of the executive orders in question
appears remote and uncertain, I am compelled to, and do hereby, give
my unqualified concurrence in the decision penned by Mr. Justice
Tuason declaring that these two executive orders were issued without
authority of law.
While in voting for a temporary deferment of the judgment I was moved
by the belief that positive compliance with the Constitution by the other
branches of the Government, which is our prime concern in all these
cases, would be effected, and indefinite deferment will produce the
opposite result because it would legitimize a prolonged or permanent
evasion of our organic law. Executive orders which are, in our opinion,
repugnant to the Constitution, would be given permanent life, opening
the way or practices which may undermine our constitutional structure.
The harmful consequences which, as I envisioned in my concurring
opinion, would come to pass should the said executive orders be
immediately declared null and void are still real. They have not
disappeared by reason of the fact that a special session of Congress is
not now forthcoming. However, the remedy now lies in the hands of the
Chief Executive and of Congress, for the Constitution vests in the
former the power to call a special session should the need for one
arise, and in the latter, the power to pass a valid appropriations act.
That Congress may again fail to pass a valid appropriations act is a
remote possibility, for under the circumstances it fully realizes its great
responsibility of saving the nation from breaking down; and
furthermore, the President in the exercise of his constitutional powers
may, if he so desires, compel Congress to remain in special session till
it approves the legislative measures most needed by the country.
Democracy is on trial in the Philippines, and surely it will emerge
victorious as a permanent way of life in this country, if each of the great
branches of the Government, within its own allocated sphere, complies
with its own constitutional duty, uncompromisingly and regardless of
difficulties.
Our Republic is still young, and the vital principles underlying its
organic structure should be maintained firm and strong, hard as the
best of steel, so as to insure its growth and development along solid
lines of a stable and vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority
judgment (declaring null and void the rental and export control
executive orders) likewise observed that "(T)he truth is that under our
concept of constitutional government, in times of extreme perils more
than in normal circumstances 'the various branches, executive,
legislative, and judicial,' given the ability to act, are called upon 'to
perform the duties discharge the responsibilities committed to
respectively.' " 15
It should be duly acknowledged that the Court's task of discharging its
duty and responsibility has been considerably lightened by the
President's public manifestation of adherence to constitutional
processes and of working within the proper constitutional framework as
per his press conference of January 20,1973, wherein he stated that
"(T)he Supreme Court is the final arbiter of the Constitution. It can and
will probably determine the validity of this Constitution. I did not want to
talk about this because actually there is a case pending before the
Supreme Court. But suffice it to say that I recognize the power of the
Supreme Court. With respect to appointments, the matter falls under a
general provision which authorizes the Prime Minister to appoint
additional members to the Supreme Court. Until the matter of the new
Constitution is decided, I have no intention of utilizing that power." 16
Thus, it is that as in an analogous situation wherein the state Supreme
Court of Mississippi held that the questions of whether the submission
of the proposed constitutional amendment of the State Constitution
providing for an elective, instead of an appointive, judiciary and
whether the proposition was in fact adopted, were justifiable and not
political questions, we may echo the words therein of Chief Justice
Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by
the Constitution. We could not, if we would, escape the exercise of that
jurisdiction which the Constitution has imposed upon us. In the
particular instance in which we are now acting, our duty to know what
the Constitution of the state is, and in accordance with our oaths to
support and maintain it in its integrity, imposed on us a most difficult
and embarrassing duty, one which we have not sought, but one which,
like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my
colleagues' contrary views, we are faced with the hard choice of
maintaining a firm and strict — perhaps, even rigid — stand that the
Constitution is a "superior paramount law, unchangeable by ordinary
means" save in the particular mode and manner prescribed therein by
the people, who, in Cooley's words, so "tied up (not only) the hands of
their official agencies, but their own hands as well" 18 in the exercise of
their sovereign will or a liberal and flexible stand that would consider
compliance with the constitutional article on the amending process as
merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at bar,
signifies that the Constitution may be amended in toto or otherwise
exclusively "by approval by a majority of the votes cast an election at
which the amendments are submitted to the people for their
ratification", 19 participated in only by qualified and duly registered
voters twenty-one years of age or over 20 and duly supervised by the
Commission on Elections, 21 in accordance with the cited mandatory
constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of
said requirements on the theory urged by respondents that "the
procedure outlined in Article XV was not intended to be exclusive of
other procedures especially one which contemplates popular and direct
participation of the citizenry", 22 that the constitutional age and literacy
requirements and other statutory safeguards for ascertaining the will of
the majority of the people may likewise be changed as "suggested, if
not prescribed, by the people (through the Citizens Assemblies)
themselves", 23 and that the Comelec is constitutionally "mandated to
oversee ... elections (of public officers) and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in
the historic 1803 case of Marbury vs. Madison 25 the U.S. Supreme
Court's power of judicial review and to declare void laws repugnant to
the Constitution, there is no middle ground between these two
alternatives. As Marshall expounded it: "(T)he Constitution is either a
superior paramount law, unchangeable by ordinary means, or it is on a
level with ordinary legislative acts, and, like other acts, alterable when
the legislature shall please to alter it. If the former part of the alternative
be true, then a legislative act, contrary to the Constitution, is not law; if
the latter part be true, then written constitutions are absurd attempts on
the part of a people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third
later in the 1936 landmark case of Angara vs. Electoral Commission,
26 "(T)he Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If
these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by
which to direct the course of government along constitutional channels,
for then the distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations of good
government and restrictions embodied in our Constitution are real as
they should be in any living Constitution."
Justice Laurel pointed out that in contrast to the United States
Constitution, the Philippine Constitution as "a definition of the powers
of government" placed upon the judiciary the great burden of
"determining the nature, scope and extent of such powers" and
stressed that "when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other
departments ... but only asserts the solemn and sacred obligation
entrusted to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an
actual controversy the rights which the instrument secures and
guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case of
McCulloch vs. Maryland 27 the "climactic phrase," 28 "we must never
forget that it is a constitution we are expounding," — termed by Justice
Frankfurter as "the single most important utterance in the literature of
constitutional law — most important because most comprehensive and
comprehending." 29 This enduring concept to my mind permeated to
this Court's exposition and rationale in the hallmark case of Tolentino,
wherein we rejected the contentions on the Convention's behalf "that
the issue ... is a political question and that the Convention being a
legislative body of the highest order is sovereign, and as such, its acts
impugned by petitioner are beyond the control of Congress and the
Courts." 30
121
This Court therein made its unequivocal choice of strictly requiring
faithful (which really includes substantial) compliance with the
mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16,
1971 prohibiting the submittal in an advance election of 1971
Constitutional Convention's Organic Resolution No. 1 proposing to
amend Article V, section 1 of the Constitution by lowering the voting
age to 18 years (vice 21 years) 30a "without prejudice to other
amendments that will be proposed in the future ... on other portions of
the amended section", this Court stated that "the constitutional
provision in question (as proposed) presents no doubt which may be
resolved in favor of respondents and intervenors. We do not believe
such doubt can exist only because it is urged that the end sought to be
achieved is to be desired. Paraphrasing no less than the President of
Constitutional Convention of 1934, Claro M. Recto, let those who
would put aside, invoking grounds at best controversial, any mandate
of the fundamental law purportedly in order to attain some laudable
objective bear in mind that someday somehow others with purportedly
more laudable objectives may take advantage of the precedent and
continue the destruction of the Constitution, making those who laid
down the precedent of justifying deviations from the requirements of
the Constitution the victims of their own folly." 31
2. This Court held in Tolentino that:
... as to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now We hold
that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV.
This must be so, because it is plain to Us that the framers of the
Constitution took care that the process of amending the same should
not be undertaken with the same ease and facility in changing an
ordinary legislation. Constitution making is the most valued power,
second to none, of the people in a constitutional democracy such as
the one our founding fathers have chosen for this nation, and which we
of the succeeding generations generally cherish. And because the
Constitution affects the lives, fortunes, future and every other
conceivable aspect of the lives of all the people within the country and
those subject to its sovereignty, every degree of care is taken in
preparing and drafting it. A constitution worthy of the people for
deliberation and study. It is obvious that correspondingly, any
amendment of the Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and prepared with
as much care and deliberation. From the very nature of things, the
drafters of an original constitution, as already observed earlier, operate
without any limitations, restraints or inhibitions save those that they
may impose upon themselves. This is not necessarily true of
subsequent conventions called to amend the original constitution.
Generally, the framers of the latter see to it that their handiwork is not
lightly treated and as easily mutilated or changed, not only for reasons
purely personal but more importantly, because written constitutions are
supposed to be designed so as to last for some time, if not for ages, or
for, at least, as long as they can be adopted to the needs and
exigencies of the people, hence, they must be insulated against
precipitate and hasty actions motivated by more or less passing
political moods or fancies. Thus, as a rule, the original constitutions
carry with them limitations and conditions, more or less stringent, made
so by the people themselves, in regard to the process of their
amendment. And when such limitations or conditions are so
incorporated in the original constitution, it does not lie in the delegates
of any subsequent convention to claim that they may ignore and
disregard such conditions because they are powerful and omnipotent
as their original counterparts. 32
3. This Court in Tolentino likewise formally adopted the doctrine
of proper submission first advanced in Gonzales vs. Comelec33, thus:
We are certain no one can deny that in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it
must provide the voter not only sufficient time but ample basis for an
intelligent appraisal of the nature of amendment per se as well as its
relation to the other parts of the Constitution with which it has to form a
harmonious whole. In the context of the present state of things, where
the Convention hardly started considering the merits of hundreds, if not
thousands, proposals to amend the existing Constitution, to present to
people any single proposal or a few of them cannot comply with this
requirement. We are of the opinion that the present Constitution does
not contemplate in Section 1 of Article XV a plebiscite or "election"
wherein the people are in the dark as to frame of reference they can
base their judgment on. We reject the rationalization that the present
Constitution is a possible frame of reference, for the simple reason that
intervenors themselves are stating the sole purpose of the proposed
amendment is to enable the eighteen year olds to take part in the
election for the ratification of the Constitution to be drafted by the
Convention. In brief, under the proposed plebiscite, there can be, in the
language of Justice Sanchez, speaking for the six members of the
Court in Gonzales, supra, 'no proper submission.' " 34
4. Four other members of the Court 35 in a separate
concurrence in Tolentino, expressed their "essential agreement" with
Justice Sanchez' separate opinion in Gonzales on the need for "fair
submission (and) intelligent rejection" as "minimum requirements that
must be met in order that there can be a proper submission to the
people of a proposed constitutional amendment" thus:
... amendments must be fairly laid before the people for their blessing
or spurning. The people are not to be mere rubber stamps. They are
not to vote blindly. They must be afforded ample opportunity to mull
over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word "submitted" can only mean
that the government, within its maximum capabilities, should strain
every effort to inform every citizen of the provisions to be amended,
and the proposed amendments and the meaning, nature and effects
thereof. By this, we are not to be understood as saying that, if one
citizen or 100 citizens or 1,000 citizens cannot be reached, then there
is no submission within the meaning of the word as intended by the
framers of the Constitution. What the Constitution in effect directs is
that the government, in submitting an amendment for ratification,
should put every instrumentality or agency within its structural
framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For as we have earlier stated, one thing
is submission and another is ratification. There must be fair
submission, intelligent consent or rejection. 36
They stressed further the need for undivided attention, sufficient
information and full debate, conformably to the intendment of Article
XV, section 1 of the Constitution, in this wise:
A number of doubts or misgivings could conceivably and logically
assail the average voter. Why should the voting age be lowered at all,
in the first place? Why should the new voting age be precisely 18
years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-
year old as mature as the 21-year old, so that there is no need of an
educational qualification to entitle him to vote? In this age of
permissiveness and dissent, can the 18-year old be relied upon to vote
with judiciousness when the 21-year old, in the past elections, has not
performed so well? If the proposed amendment is voted down by the
people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed
amendment ratified at this particular time? Do some of the members of
the Convention have future political plans which they want to begin to
subserve by the approval this year of this amendment? If this
amendment is approved, does it thereby mean that the 18-year old
should not also shoulder the moral and legal responsibilities of the 21-
year old? Will he be required to compulsory military service under the
colors? Will the contractual consent be reduced to 18 years? If I vote
against the amendment, will I not be unfair to my own child who will be
18 years old, come 1973?
The above are just samplings from here, there and everywhere — from
a domain (of searching questions) the bounds of which are not
immediately ascertainable. Surely, many more questions can be added
to the already long litany. And the answers cannot except as the
questions are debated fully, pondered upon purposefully, and accorded
undivided attention.
Scanning the contemporary scene, we say that the people are not, and
by election time will not be, sufficiently informed of the meaning, nature
and effects of the proposed constitutional amendment. They have not
been afforded ample time to deliberate thereon conscientiously. They
have been and are effectively distracted from a full and dispassionate
consideration of the merits and demerits of the proposed amendment
by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom
proposed
amendment. 37
5. This Court therein dismissed the plea of disregarding
mandatory requirements of the amending process "in favor of allowing
the sovereign people to express their decision on the proposed
amendments" as "anachronistic in the real constitutionalism and
repugnant to the essence of the rule of law," in the following terms:
... The preamble of the Constitution says that the Constitution has been
ordained by the 'Filipino people, imploring the aid of Divine
Providence.' Section 1 of Article XV is nothing than a part of the
Constitution thus ordained by the people. Hence, in construing said
section, We must read it as if the people had said, 'This Constitution
may be amended, but it is our will that the amendment must be
proposed and submitted to Us for ratification only in the manner herein
provided.' ... Accordingly, the real issue here cannot be whether or not
the amending process delineated by the present Constitution may be
disregarded in favor of allowing the sovereign people to express their
decision on the proposed amendments, if only because it is evident
that the very idea of departing from the fundamental law is
anachronistic in the realm of constitutionalism and repugnant to the
essence of the rule of law; rather, it is whether or not the provisional
nature of the proposed amendment and the manner of its submission
to the people for ratification or rejection conform with the mandate of
122
the people themselves in such regard, as expressed in, the
Constitution itself. 38
6. This Court, in not heeding the popular clamor, thus stated its
position: "(I)t would be tragic and contrary to the plain compulsion of
these perspectives, if the Court were to allow itself in deciding this case
to be carried astray by considerations other than the imperatives of the
rule of law and of the applicable provisions of the Constitution.
Needless to say, in a larger measure than when it binds other
departments of the government or any other official or entity, the
Constitution imposes upon the Court the sacred duty to give meaning
and vigor to the Constitution, by interpreting and construing its
provisions in appropriate cases with the proper parties and by striking
down any act violative thereof. Here, as in all other cases, We are
resolved to discharge that duty. 39
7. The Chief Justice, in his separate opinion in Tolentino
concurring with this Court's denial of the motion for reconsideration,
succinctly restated this Court's position on the fundamentals, as
follows:
— On the premature submission of a partial amendment proposal, with
a "temporary provisional or tentative character": — "... a partial
amendment would deprive the voters of the context which is usually
necessary for them to make a reasonably intelligent appraisal of the
issue submitted for their ratification or rejection. ... Then, too, the
submission to a plebiscite of a partial amendment, without a definite
frame of reference, is fraught with possibilities which may jeopardize
the social fabric. For one thing, it opens the door to wild speculations. It
offers ample opportunities for overzealous leaders and members of
opposing political camps to unduly exaggerate the pros and cons of the
partial amendment proposed. In short, it is apt to breed false hopes
and create wrong impressions. As a consequence, it is bound to
unduly strain the people's faith in the soundness and validity of
democratic processes and institutions.
— On the plea to allow submission to the sovereign people of the
"fragmentary and incomplete" proposal, although inconsistent with the
letter and spirit of the Constitution: "The view, has, also, advanced that
the foregoing considerations are not decisive on the issue before Us,
inasmuch as the people are sovereign, and the partial amendment
involved in this case is being submitted to them. The issue before Us is
whether or not said partial amendment may be validly submitted to the
people for ratification "in a plebiscite coincide with the local elections in
November 1971," and this particular issue will not be submitted to the
people. What is more, the Constitution does not permit its submission
to the people. The question sought to be settled in the scheduled
plebiscite is whether or not the people are in favor of the reduction of
the voting age.
— On a "political" rather than "legalistic" approach: "Is this approach to
the problem too "legalistic?" This term has possible connotations. It
may mean strict adherence to the law, which in the case at bar is the
Supreme Law of the land. On point, suffice it to say that, in compliance
with the specific man of such Supreme Law, the members of the
Supreme Court taken the requisite "oath to support and defend the
Constitution." ... Then, again, the term "legalistic" may be used to
suggest inversely that the somewhat strained interpretation of the
Constitution being urged upon this Court be tolerated or, at least,
overlooked, upon the theory that the partial amendment on voting age
is badly needed and reflects the will of the people, specially the youth.
This course of action favors, in effect, adoption of a political approach,
inasmuch as the advisability of the amendment and an appraisal of the
people's feeling thereon political matters. In fact, apart from the
obvious message of the mass media, and, at times, of the pulpit, the
Court has been literally bombarded with scores of handwritten letters,
almost all of which bear the penmanship and the signature of girls, as
well as letterhead of some sectarian educational institutions, generally
stating that the writer is 18 years of age and urging that she or he be
allowed to vote. Thus, the pressure of public opinion has brought to
bear heavily upon the Court for a reconsideration of its decision in the
case at bar.
As above stated, however, the wisdom of the amendment and the
popularity thereof are political questions beyond our province. In fact,
respondents and the intervenors originally maintained that We have no
jurisdiction to entertain the petition herein, upon the ground that the
issue therein raised is a political one. Aside from the absence of
authority to pass upon political question, it is obviously improper and
unwise for the bench to develop into such questions owing to the
danger of getting involved in politics, more likely of a partisan nature,
and, hence, of impairing the image and the usefulness of courts of
justice as objective and impartial arbiters of justiciable controversies.
Then, too, the suggested course of action, if adopted, would constitute
a grievous disservice to the people and the very Convention itself.
Indeed, the latter and the Constitution it is in the process of drafting
stand essentially for the Rule of Law. However, as the Supreme Law of
the land, a Constitution would not be worthy of its name, and the
Convention called upon to draft it would be engaged in a futile
undertaking, if we did not exact faithful adherence to the fundamental
tenets set forth in the Constitution and compliance with its provisions
were not obligatory. If we, in effect, approved, consented to or even
overlooked a circumvention of said tenets and provisions, because of
the good intention with which Resolution No. 1 is animated, the Court
would thereby become the Judge of the good or bad intentions of the
Convention and thus be involved in a question essentially political in
nature.
This is confirmed by the plea made in the motions for reconsideration
in favor of the exercise of judicial statesmanship in deciding the
present case. Indeed, "politics" is the word commonly used to
epitomize compromise, even with principles, for the sake of political
expediency or the advancement of the bid for power of a given political
party. Upon the other hand, statesmanship is the expression usually
availed of to refer to high politics or politics on the highest level. In any
event, politics, political approach, political expediency and
statesmanship are generally associated, and often identified, with the
dictum that "the end justifies the means." I earnestly hope that the
administration of justice in this country and the Supreme Court, in
particular, will adhere to or approve or indorse such dictum." 40
Tolentino, he pointed out that although "(M)ovants' submittal that
"(T)he primary purpose for the submission of the proposed amendment
lowering the voting age to the plebiscite on November 8, 1971 is to
enable the youth 18 to 20 years who comprise more than three (3)
million of our population to participate in the ratification of the new
Constitution in so far as "to allow young people who would be
governed by the Constitution to be given a say on what kind of
Constitution they will have" is a laudable end, ... those urging the
vitality and importance of the proposed constitutional amendment and
its approval ahead of the complete and final draft of the Constitution
must seek a valid solution to achieve it in a manner sanctioned by the
amendatory process ordained by our people in the present
Constitution" 41 — so that there may be "submitted, not piece-meal,
but by way of complete and final amendments as an integrated whole
(integrated either with the subsisting Constitution or with the new
proposed Constitution)..."
9. The universal validity of the vital constitutional precepts and
principles above-enunciated can hardly be gainsaid. I fail to see the
attempted distinction of restricting their application to proposals for
amendments of particular provisions of the Constitution and not to so-
called entirely new Constitutions. Amendments to an existing
Constitution presumably may be only of certain parts or in toto, and in
the latter case would rise to an entirely new Constitution. Where this
Court held in Tolentino that "any amendment of the Constitution is of
no less importance than the whole Constitution itself and perforce must
be conceived and prepared with as much care and deliberation", it
would appeal that the reverse would equally be true; which is to say,
that the adoption of a whole new Constitution would be of no less
importance than any particular amendment and therefore the
necessary care and deliberation as well as the mandatory restrictions
and safeguards in the amending process ordained by the people
themselves so that "they (may) be insulated against precipitate and
hasty actions motivated by more or less passing political moods or
fancies" must necessarily equally apply thereto.
III
1. To restate the basic premises, the people provided in Article
XV of the Constitution for the amending process only "by approval by a
majority of the votes cast at an election at which the (duly proposed)
amendments are submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby
enfranchised and granted the right of suffrage may speak the "will of
the body politic", viz, qualified literate voters twenty one years of age or
over with one year's residence in the municipality where they have
registered.
The people, not as yet satisfied, further provided by amendment duly
approved in 1940 in accordance with Article XV, for the creation of an
independent Commission on Elections with "exclusive charge" for the
purpose of "insuring free, orderly and honest elections" and
ascertaining the true will of the electorate — and more, as ruled by this
Court in Tolentino, in the case of proposed constitutional amendments,
insuring proper submission to the electorate of such proposals. 42
2. A Massachussets case 43 with a constitutional system and
provisions analogous to ours, best defined the uses of the term
"people" as a body politic and "people" in the political sense who are
synonymous with the qualified voters granted the right to vote by the
existing Constitution and who therefore are "the sole organs through
which the will of the body politic can be expressed."
It was pointed out therein that "(T)he word 'people' may have
somewhat varying significations dependent upon the connection in
which it is used. In some connections in the Constitution it is confined
to citizens and means the same as citizens. It excludes aliens. It
includes men, women and children. It comprehends not only the sane,
competent, law-abiding and educated, but also those who are wholly or
in part dependents and charges upon society by reason of immaturity,
mental or moral deficiency or lack of the common essentials of
education. All these persons are secured fundamental guarantees of
the Constitution in life, liberty and property and the pursuit of
123
happiness, except as these may be limited for the protection of
society."
In the sense of "body politic (as) formed by voluntary association of
individuals" governed by a constitution and common laws in a "social
compact ... for the common good" and in another sense of "people" in
a "practical sense" for "political purposes" it was therein fittingly stated
that in this sense, "people" comprises many who, by reason of want of
years, of capacity or of the educational requirements of Article 20 of
the amendments of the Constitution, can have no voice in any
government and who yet are entitled to all the immunities and
protection established by the Constitution. 'People' in this aspect is
coextensive with the body politic. But it is obvious that 'people' cannot
be used with this broad meaning of political signification. The 'people'
in this connection means that part of the entire body of inhabitants who
under the Constitution are intrusted with the exercise of the sovereign
power and the conduct of government. The 'people' in the Constitution
in a practical sense means those who under the existing Constitution
possess the right to exercise the elective franchise and who, while that
instrument remains in force unchanged, will be the sole organs through
which the will of the body politic can be expressed. 'People' for political
purposes must be considered synonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the people are
thus the source of political power, their governments, national and
state, have been limited by constitutions, and they have themselves
thereby set bounds to their own power, as against the sudden impulse
of mere majorities." 44
From the text of Article XV of our Constitution, requiring approval of
amendment proposals "by a majority of the votes cast at an election at
which the amendments are submitted to the people for their
ratification", it seems obvious as above-stated that "people" as therein
used must be considered synonymous with "qualified voters" as
enfranchised under Article V, section 1 of the Constitution — since only
"people" who are qualified voters can exercise the right of suffrage and
cast their votes.
3. Sound constitutional policy and the sheer necessity of
adequate safeguards as ordained by the Constitution and
implementing statutes to ascertain and record the will of the people in
free, orderly and honest elections supervised by the Comelec make it
imperative that there be strict adherence to the constitutional
requirements laid down for the process of amending in toto or in part
the supreme law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain
safeguards for the holding of barrio plebiscites thus: "SEC. 6.
Plebiscite. — A plebiscite may be held in the barrio when authorized by
a majority vote of the members present in the barrio assembly, there
being a quorum, or when called by at least four members of the barrio
council: Provided, however, That no plebiscite shall be held until after
thirty days from its approval by either body, and such plebiscite has
been given the widest publicity in the barrio, stating the date, time and
place thereof, the questions or issues to be decided, action to be taken
by the voters, and such other information relevant to the holding of the
plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that
"(A)ll duly registered barrio assembly members qualified to vote may
vote in the plebiscite. Voting procedures may be made either in writing
as in regular elections, and/or declaration by the voters to the board of
election tellers." 47
The subjects of the barrio plebiscites are likewise delimited thus: "A
plebiscite may be called to decide on the recall of any member of the
barrio council. A plebiscite shall be called to approve any budgetary,
supplemental appropriations or special tax ordinances" and the
required majority vote is specified: "(F)or taking action on any of the
above enumerated measures, majority vote of all the barrio assembly
members registered in the list of the barrio secretary is necessary." 48
The qualifications for voters in such barrio plebiscites and elections of
barrio officials 49 comply with the suffrage qualifications of Article V,
section 1 of the Constitution and provide that "(S)EC. 10. Qualifications
of Voters and Candidates. — Every citizen of the Philippines, twenty
one years of age or over, able to read and write, who has been a
resident of the barrio during the six months immediately preceding the
election, duly registered in the list of voters by the barrio secretary, who
is not otherwise disqualified, may vote or be a candidate in the barrio
elections." 50
IV
1. Since it appears on the face of Proclamation 1102 that the
mandatory requirements under the above-cited constitutional articles
have not been complied with and that no election or plebiscite for
ratification as therein provided as well as in section 16 of Article XVII of
the proposed Constitution itself 51 has been called or held, there
cannot be said to have been a valid ratification.
2. Petitioners raised serious questions as to the veracity and
genuineness of the reports or certificates of results purportedly
showing unaccountable discrepancies in seven figures in just five
provinces 52 between the reports as certified by the Department of
Local Governments and the reports as directly submitted by the
provincial and city executives, which latter reports respondents
disclaimed inter alia as not final and complete or as not signed; 53
whether the reported votes of approval of the proposed Constitution
conditioned upon the non-convening of the interim National Assembly
provided in Article XVII, section 1 thereof, 54 may be considered as
valid; the allegedly huge and uniform votes reported; and many others.
3. These questions only serve to justify and show the basic
validity of the universal principle governing written constitutions that
proposed amendments thereto or in replacement thereof may be
ratified only in the particular mode or manner prescribed therein by the
people. Under Article XV, section 1 of our Constitution, amendments
thereto may be ratified only in the one way therein provided, i.e. in an
election or plebiscite held in accordance with law and duly supervised
by the Commission on Elections, and which is participated in only by
qualified and duly registered voters. In this manner, the safeguards
provided by the election code generally assure the true ascertainment
of the results of the vote and interested parties would have an
opportunity to thresh out properly before the Comelec all such
questions in pre-proclamation proceedings.
4. At any rate, unless respondents seriously intend to question
the very statements and pronouncements in Proclamation 1102 itself
which shows on its face, as already stated, that the mandatory
amending process required by the (1935) Constitution was not
observed, the cases at bar need not reach the stage of answering the
host of questions, raised by petitioners against the procedure observed
by the Citizens Assemblies and the reported referendum results —
since the purported ratification is rendered nugatory by virtue of such
non-observance.
5. Finally, as to respondents' argument that the President
issued Proclamation 1102 "as "agent" of the Constitutional Convention"
55 under Resolution No. 5844 approved on November 22, 1973, and
"as agent of the Convention the President could devise other forms of
plebiscite to determine the will of the majority vis-a-vis the ratification of
the proposed Constitution." 56
The minutes of November 22, 1972, of the Convention, however, do
not at all support this contention. On the contrary, the said minutes fully
show that the Convention's proposal and "agency" was that the
President issue a decree precisely calling a plebiscite for the
ratification of the proposed new Constitution on an appropriate date,
under the charge of the Comelec, and with a reasonable period for an
information campaign, as follows:
12. Upon recognition by the Chair, Delegate Duavit moved for
the approval of the resolution, the resolution portion of which read as
follows:
"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971
Constitutional Convention propose to President Ferdinand E. Marcos
that a decree be issued calling a plebiscite for the ratification of the
proposed New Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor, and that
copies of this resolution as approved in plenary session be transmitted
to the President of the Philippines and the Commission on Elections for
implementation."
He suggested that in view of the expected approval of the final draft of
the new Constitution by the end of November 1972 according to the
Convention's timetable, it would be necessary to lay the groundwork for
the appropriate agencies of the government to undertake the
necessary preparation for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.) contended that the
resolution was unnecessary because section 15, Article XVII on the
Transitory Provision, which had already been approved on second and
third readings, provided that the new constitution should be ratified in a
plebiscite called for the purpose by the incumbent President. Delegate
Duavit replied that the provision referred to did not include the
appropriation of funds for the plebiscite and that, moreover, the
resolution was intended to serve formal notice to the President and the
Commission on Elections to initiate the necessary preparations.
xxx xxx xxx
12.4 Interpellating, Delegate Madarang suggested that a
reasonable period for an information campaign was necessary in order
to properly apprise the people of the implications and significance of
the new charter. Delegate Duavit agreed, adding that this was
precisely why the resolution was modified to give the President the
discretion to choose the most appropriate date for the plebiscite.
12.5 Delegate Laggui asked whether a formal communication to
the President informing him of the adoption of the new Constitution
would not suffice considering that under Section 15 of the Transitory
Provisions, the President would be duty-bound to call a plebiscite for its
124
ratification. Delegate Duavit replied in the negative, adding that the
resolution was necessary to serve notice to the proper authorities to
prepare everything necessary for the plebiscite.
12.6 In reply to Delegate Britanico, Delegate Duavit stated that
the mechanics for the holding of the plebiscite would be laid down by
the Commission on Elections in coordination with the President.
12.7 Delegate Catan inquired if such mechanics for the plebiscite
could include a partial lifting of martial law in order to allow the people
to assemble peaceably to discuss the new Constitution. Delegate
Duavit suggested that the Committee on Plebiscite and Ratification
could coordinate with the COMELEC on the matter.
12.8 Delegate Guzman moved for the previous question. The
Chair declared that there was one more interpellant and that a prior
reservation had been made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his interpellation that there was
actually no need for such a resolution in view of the provision of section
15, Article XVII on the Transitory Provisions. Delegate Duavit
disagreed, pointing out that the said provision did not provide for the
funds necessary for the purpose.
13. Delegate Ozamiz then moved to close the debate and
proceed to the period of amendment.
13.1 Floor Leader Montejo stated that there were no reservations
to amend the resolution.
13.2 Delegate Ozamiz then moved for the previous question.
Submitted to a vote, the motion was approved.
Upon request of the Chair, Delegate Duavit restated the resolution for
voting.
14.1. Delegate Ordoñez moved for nominal voting. Submitted to a
vote, the motion was lost.
14.2. Thereupon, the Chair submitted the resolution to a vote. It
was approved by a show of hands. 57
I, therefore, vote to deny respondents' motion to dismiss and to give
due course to the petitions.
Promulgated: June 4, 1973 *
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my
concurrence.
I
It is my view that to preserve the independence of the State, the
maintenance of the existing constitutional order and the defense of the
political and social liberties of the people, in times of a grave
emergency, when the legislative branch of the government is unable to
function or its functioning would itself threaten the public safety, the
Chief Executive may promulgate measures legislative in character, for
the successful prosecution of such objectives. For the "President's
power as Commander- in-chief has been transformed from a simple
power of military command to a vast reservoir of indeterminate powers
in time of emergency. ... In other words, the principal canons of
constitutional interpretation are ... set aside so far as concerns both the
scope of the national power and the capacity of the President to gather
unto himself all constitutionally available powers in order the more
effectively to focus them upon the task of the hour." (Corwin, The
President: Office & Powers, pp. 317, 318, [1948]).
1. The proclamation of martial rule, ushered the
commencement of a crisis government in this country. In terms of
power, crisis government in a constitutional democracy entails the
concentration of governmental power. "The more complete the
separation of powers in a constitutional system, the more difficult, and
yet the more necessary" according to Rossiter, "will be their fusion in
time of crisis... The power of the state in crisis must not only be
concentrated and expanded, it must be freed from the normal system
of constitutional and legal limitations. One of the basic features of
emergency powers is the release of the government from the paralysis
of constitutional restraints" (Rossiter, Constitutional Dictatorship, p.
290).
It is clearly recognized that in moments of peril the effective action of
the government is channeled through the person of the Chief
Executive. "Energy in the executive," according to Hamilton, "is
essential to the protection of the community against foreign attacks ...
to the protection of property against those irregular and high-handed
combinations which sometimes interrupt the ordinary course of justice;
to the security of liberty against the enterprises and assaults of
ambition, of faction, and of anarchy." (The Federalist, Number 70).
"The entire strength of the nation", said Justice Brewer in the Debs
case (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any
part of the land the full and free exercise of all national powers and the
security of all rights entrusted by the constitution to its care." The
marshalling and employment of the "strength of the nation" are matters
for the discretion of the Chief Executive. The President's powers in
time of emergency defy precise definition since their extent and
limitations are largely dependent upon conditions and circumstances.
2. The power of the President to act decisively in a crisis has
been grounded on the broad conferment upon the Presidency of the
Executive power, with the added specific grant of power under the
"Commander-in-Chief" clause of the constitution. The contours of such
powers have been shaped more by a long line of historical precedents
of Presidential action in times of crisis, rather than judicial
interpretation. Lincoln wedded his powers under the "commander-in-
chief" clause with his duty "to take care that the laws be faithfully
executed," to justify the series of extraordinary measures which he took
— the calling of volunteers for military service, the augmentation of the
regular army and navy, the payment of two million dollars from
unappropriated funds in the Treasury to persons unauthorized to
receive it, the closing of the Post Office to "treasonable
correspondence", the blockade of southern ports, the suspension of
the writ of habeas corpus, the arrest and detention of persons "who
were represented to him" as being engaged in or contemplating
"treasonable practices" — all this for the most part without the least
statutory authorization. Those actions were justified by the imperatives
of his logic, that the President may, in an emergency thought by him to
require it, partially suspend the constitution. Thus his famous question:
"Are all laws but one to be unexecuted, and the Government itself go to
pieces lest that one be violated?" The actions of Lincoln "assert for the
President", according to Corwin, "an initiative of indefinite scope and
legislative in effect in meeting the domestic aspects of a war
emergency." (Corwin, The President: Office & Powers, p. 280 [1948]).
The facts of the civil war have shown conclusively that in meeting the
domestic problems as a consequence of a great war, an indefinite
power must be attributed to the President to take emergency
measures. The concept of "emergency" under which the Chief
Executive exercised extraordinary powers underwent correlative
enlargement during the first and second World Wars. From its narrow
concept as an "emergency" in time of war during the Civil War and
World War I, the concept has been expanded in World War II to include
the "emergency" preceding the war and even after it. "The Second
World War" observed Corwin and Koenig, was the First World War writ
large, and the quasi-legislative powers of Franklin Roosevelt as
"Commander-in-Chief in wartime"... burgeoned correspondingly. The
precedents were there to be sure, most of them from the First World
War, but they proliferated amazingly. What is more, Roosevelt took his
first step toward war some fifteen months before our entrance into
shooting war. This step occurred in September, 1940, when he handed
over fifty so-called overage destroyers to Great Britain. The truth is,
they were not overage, but had been recently reconditioned and
recommissioned. ... Actually, what President Roosevelt did was to take
over for the nonce Congress's power to dispose of property of the
United States (Article IV, Section 3) and to repeal at least two statutes."
(Corwin & Koenig, The Presidency Today, New York University Press,
1956; sf Corwin, The President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to
Congress. And yet President Wilson, during World War I on the basis
of his powers under the "Commander-in-Chief" clause created "offices"
which were copied in lavish scale by President Roosevelt in World War
II. In April 1942, thirty-five "executive agencies" were purely of
Presidential creation. On June 7, 1941 on the basis of his powers as
"Commander-in-Chief", he issued an executive order seizing the North
American Aviation plant of Inglewood, California, where production
stopped as a consequence of a strike. This was justified by the
government as the exercise of presidential power growing out of the
"duty constitutionally and inherently resting upon the President to exert
his civil and military as well as his moral authority to keep the defense
efforts of the United States a going concern" as well as "to obtain
supplies for which Congress has appropriated money, and which it has
directed the President to obtain." On a similar justification, other plants
and industries were taken over by the government. It is true that in
Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863;
96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not
sustain the claims that the President could, as the Nation's Chief
Executive and Commander-in-Chief of the armed forces, validly order
the seizure of most of the country's steel mills. The Court however did
not face the naked question of the President's power to seize steel
plants in the absence of any congressional enactment or expressions
of policy. The majority of the Court found that this legislative
occupation of the field made untenable the President's claim of
authority to seize the plants as an exercise of inherent executive power
or as Commander-in-Chief. Justice Clark, in his concurrence to the
main opinion of the Court, explicitly asserted that the President does
possess, in the absence of restrictive legislation, a residual or resultant
power above or in consequence of his granted powers, to deal with
emergencies that he regards as threatening the national security. The
same view was shared with vague qualification by Justices Frankfurter
and Jackson, two of the concurring Justices. The three dissenting
Justices, speaking through Chief Justice Vinson, apparently went
further by quoting with approval a passage extracted from the brief of
125
the government in the case of United States vs. Midwest Oil Co., (236
U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the
power of the President to order withdrawals from the public domain not
only without Congressional sanction but even contrary to
Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked
as an authority to support the view that the President in times of a
grave crisis does not possess a residual power above or in
consequence of his granted powers, to deal with emergencies that he
regards as threatening the national security. The lesson of the Steel
Seizure case, according to Corwin and Koenig, "Unquestionably ...
tends to supplement presidential emergency power to adopt temporary
remedial legislation when Congress has been, in the judgment of the
President, unduly remiss in taking cognizance of and acting on a given
situation." (Corwin and Koenig, The Presidency Today, New York
University Press, 1956).
The accumulation of precedents has thus built up the presidential
power under emergency conditions to "dimensions of executive
prerogative as described by John Locke, of a power to wit, to fill
needed gaps in the law, or even to supersede it so far as may be
requisite to realize the fundamental law of nature and government,
namely, that as much as may be all the members of society are to be
preserved." (Corwin and Koenig, The Presidency Today).
In the light of the accumulated precedents, how could it be reasonably
argued therefore, that the President had no power to issue Presidential
Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since
these measures were considered indispensable to effect the desired
reforms at the shortest time possible and hasten the restoration of
normalcy? It is unavailing for petitioners to contend that we are not
faced by an actual "shooting war" for today's concept of the emergency
which justified the exercise of those powers has of necessity been
expanded to meet the exigencies of new dangers and crisis that
directly threaten the nation's continued and constitutional existence.
For as Corwin observed: "... today the concept of 'war' as a special
type of emergency warranting the realization of constitutional
limitations tends to spread, as it were, in both directions, so that there
is not only "the war before the war," but the 'war after the war.' Indeed,
in the economic crisis from which the New Deal may be said to have
issued, the nation was confronted in the opinion of the late President
with an 'emergency greater than war'; and in sustaining certain of the
New Deal measures the Court invoked the justification of 'emergency.'
In the final result constitutional practices of wartime have moulded the
Constitution to greater or less extent for peacetime as well, seem likely
to do so still more pronouncedly under fresh conditions of crisis."
(Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the authority of a constitutional
government is resisted openly by large numbers of citizens who are
engaged in violent insurrection against enforcement of its laws or are
bent on capturing it illegally or destroying it altogether. The third crisis,
one recognized particularly in modern times as sanctioning emergency
action by constitutional governments, is economic depression. The
economic troubles which plagued all the countries of the world in the
early thirties involved governmental methods of an unquestionably
dictatorial character in many democracies. It was thereby
acknowledged that an economic existence as a war or a rebellion. And
these are not the only cases which have justified extraordinary
governmental action in nations like the United States. Fire, flood,
drought, earthquake, riots, great strikes have all been dealt with by
unusual and of dictatorial methods. Wars are not won by debating
societies, rebellions are not suppressed by judicial injunctions,
reemployment of twelve million jobless citizens will not be effected
through a scrupulous regard for the tenets of free enterprise, hardships
caused by the eruptions of nature cannot be mitigated letting nature
take its course. The Civil War, the depression of 1933 and the recent
global conflict were not and could not have been successfully resolved
by governments similar to those of James Buchanan, William Howard
Taft, or Calvin Coolidge. (Rossiter, Constitutional Dictatorship — Crisis
of Government in the Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the
referendum in question not having been done inaccordance with the
provisions of existing election laws, which only qualified voters who are
allowed to participate, under the supervision of the Commission on
Elections, the new Constitution, should therefore be a nullity. Such an
argument is predicated upon an assumption, that Article XV of the
1935 Constitution provides the method for the revision of the
constitution, and automatically apply in the final approval of such
proposed new Constitution the provisions of the election law and those
of Article V and X of the old Constitution. We search in vain for any
provision in the old charter specifically providing for such procedure in
the case of a total revision or a rewriting of the whole constitution.
1. There is clearly a distinction between revision and
amendment of an existing constitution. Revision may involve a
rewriting of the whole constitution. The act of amending a constitution,
on the other hand, envisages a change of only specific provisions. The
intention of an act to amend is not the change of the entire constitution
but only the improvement of specific parts of the existing constitution of
the addition of provisions deemed essential as a consequence of new
constitutions or the elimination of parts already considered obsolete or
unresponsive to the needs of the times.1 The 1973 Constitution is not
a mere amendment to the 1935 Constitution. It is a completely new
fundamental charter embodying new political, social and economic
concepts.
According to an eminent authority on Political Law, "The Constitution of
the Philippines and that of the United States expressly provide merely
for methods of amendment. They are silent on the subject of revision.
But this is not a fatal omission. There is nothing that can legally prevent
a convention from actually revising the Constitution of the Philippines
or of the United States even were such conventions called merely for
the purpose of proposing and submitting amendments to the people.
For in the final analysis, it is the approval of the people that gives
validity to any proposal of amendment or revision." (Sinco, Philippine
Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the
method or procedure for the revision or for the approval of a new
constitution, should it now be held, that the people have placed such
restrictions on themselves that they are not disabled from exercising
their right as the ultimate source of political power from changing the
old constitution which, in their view, was not responsive to their needs
and in adopting a new charter of government to enable them to rid
themselves from the shackles of traditional norms and to pursue with
new dynamism the realization of their true longings and aspirations,
except in the manner and form provided by Congress for previous
plebiscites? Was not the expansion of the base of political
participation, by the inclusion of the youth in the process of ratification
who after all constitute the preponderant majority more in accord with
the spirit and philosophy of the constitution that political power is
inherent in the people collectively? As clearly expounded by Justice
Makasiar, in his opinion, in all the cases cited where the Courts held
that the submission of the proposed amendment was illegal due to the
absence of substantial compliance with the procedure prescribed by
the constitution, the procedure prescribed by the state Constitution, is
so detailed, that specified the manner in which such submission shall
be made, the persons qualified to vote for the same, the date of
election and other definite standards, from which the court could safely
ascertain whether or not the submission was in accordance with the
Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied
upon in one of the dissenting opinions involved in the application of the
provisions of the state Constitution of Minnesota which clearly
prescribed in detail the procedure under which the Constitution may be
amended or revised.2 This is not true with our Constitution. In the case
of revision there are no "standards meet for judicial judgment."3
The framers of our Constitution were free to provide in the Constitution
the method or procedure for the revision or rewriting of the entire
constitution, and if such was their intention, they could and should have
so provided. Precedents were not wanting. The constitutions of the
various states of the American Union did provide for procedures for
their amendment and methods for their revision.4
Certainly We cannot, under the guise of interpretation, modify, revise,
amend, remodel or rewrite the 1935 Charter. To declare what the law
is, or has been, is a judicial power, but to declare what the law shall be
is not within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided
the method or procedure for the revision or complete change of the
Constitution, it is evident that the people have reserved such power in
themselves. They decided to exercise it not through their legislature,
but through a Convention expressly chosen for that purpose. The
Convention as an independent and sovereign body has drafted not an
amendment but a completely new Constitution, which decided to
submit to the people for approval, not through an act of Congress, but
by means of decrees to be promulgated by the President. In view of
the inability of Congress to act, it was within the constitutional powers
of the President, either as agent of the Constitutional Convention, or
under his authority under martial law, to promulgate the necessary
measures for the ratification of the proposed new Constitution. The
adoption the new Charter was considered as a necessary basis for all
the reforms set in motion under the new society, to root out the causes
of unrest. The imperatives of the emergency underscored the urgency
of its adoption. The people in accepting such procedure and in voting
overwhelmingly for the approval of the new Constitution have, in effect,
ratified the method and procedure taken. "When the people adopt
completely revised or new constitution," said the Court in Wheeler v.
Board of Trustees (37 SE 2nd 322, 326-330), "the framing or
submission of the instrument is not what gives it binding force and
effect. The fiat of the people, and only the fiat of the people, can
breathe life into a constitution."
This has to be so because, in our political system, all political power is
inherent in the people and free governments are founded on their
authority and instituted for their benefit. Thus Section 1 of Article II of
the 1935 Constitution declares that: "Sovereignty resides in the people
and all government authority emanate from them." Evidently the term
126
people refers to the entire citizenry and not merely to the electorate, for
the latter is only a fraction of the people and is only an organ of
government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority
to nullify an entire Constitution that is already effective as it has been
accepted and acquiesced in by the people as shown by their
compliance with the decree promulgated thereunder, their cooperation
in its implementation, and is now maintained by the Government that is
in undisputed authority and dominance?
Of course it is argued that acquiescence by the people can be deduced
from their acts of conformity, because under a regime of martial law the
people are bound to obey and act in conformity with the orders of the
President, and has absolutely no other choice. The flaw of this
argument lies in its application of a mere theoretical assumption based
on the experiences of other nations on an entirely different factual
setting. Such an assumption flounders on the rock of reality. It is true
that as a general rule martial law is the use of military forces to perform
the functions of civil government. Some courts have viewed it as a
military regime which can be imposed in emergency situations. In other
words, martial rule exists when the military rises superior to the civil
power in the exercise of some or all the functions of government. Such
is not the case in this country. The government functions thru its
civilian officials. The supremacy of the civil over the military authority is
manifest. Except for the imposition of curfew hours and other
restrictions required for the security of the State, the people are free to
pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the
oppressive features, generally associated with a regime of Martial law
in other countries. "Upon the other hand the masses of our people
have accepted it, because of its manifold blessings. The once
downtrodden rice tenant has at long last been emancipated — a
consummation devoutly wished by every Philippine President since the
1930's. The laborer now holds his head high because his rights are
amply protected and respected." * A new sense of discipline has swiftly
spread beyond the corridors of government into the social order.
Responding to the challenges of the New Society, the people have
turned in half a million loose firearms, paid their taxes on undeclared
goods and income in unprecedented numbers and amount, lent their
labors in massive cooperation — in land reform, in the repair of dikes,
irrigation ditches, roads and bridges, in reforestation, in the physical
transformation of the environment to make ours a cleaner and greener
land. "The entire country is turning into one vast garden growing food
for the body, for thought and for the soul." * More important the
common man has at long last been freed from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines" reported Frank Valeo to the United States
Senate. "President Marcos has been prompt and sure-footed in using
the power of presidential decree under martial law for this purpose. He
has zeroed in on areas which have been widely recognized as prime
sources of the nation's difficulties — land tenancy, official corruption,
tax evasion and abuse of oligarchic economic power. Clearly he knows
his targets ... there is marked public support for his leadership..."
(Bulletin Today, March 3 and 4, 1973)..
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in
the April 11 issue of The New York Times:
During his first Presidential term (1965-1969), Mr. Marcos was
discouraged by the failure of legislators to approve urgently needed
reforms. He found his second term further frustrated by spread riots, a
Maoist uprising in Luzon and a much more serious Moslem
insurrection in the southern islands from Mindanao across the Sulu
archipelago to the frontier regions of Malaysia and Indonesia. Manila
claims this war is Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of power and makes
no promise as to when he will relinquish them. But, while fettering a
free press, terminating Congress and locking up some opponents
(many of whom were later amnestied), he has hauled the Philippines
out of stagnation.
Sharecropping is being ended as more than three million acres of
arable land are redistributed with state funds. New roads have been
started. The educational system is undergoing revision, a corruption is
diminished. In non-communist Asia it is virtually impossible to wholly
end it and this disagreeable phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by
creating an agrarian middle-class to replace the archaic sharecropper-
absentee landlord relationship. He is even pushing for a birth control
program with the tacit acceptance of the Catholic Church. He has
started labor reforms and increased wages. (Daily Express, April 15,
1973)
As explained in this writer's opinion of April 24, 1973 on the
"Constancia" and "Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in
conformity with it are by and large applied and obeyed. As soon as the
old Constitution loses its effectiveness and the new Constitution has
become effective, the acts that appear with the subjective meaning of
creating or applying legal norms are no longer interpreted by
presupposing the old basic norm, but by presupposing the new one.
The statutes issued under the old Constitution and not taken over are
no longer regarded as valid, and the organs authorized by the old
Constitution no longer competent." (Kelsen, Pure Theory of Law,
[1967].)
The essentially political nature of the question is at once made
manifest by understanding that in the final analysis, what is assailed is
not merely the validity of Proclamation No. 1102 of the President,
which is merely declaratory of the fact of approval or ratification, but
the legitimacy of the government. It is addressed more to the
framework and political character of this Government which now
functions under the new Charter. It seeks to nullify a Constitution that is
already effective.
In such a situation, We do not see how the question posed by
petitioners could be judicially decided. "Judicial power presupposes an
established government capable of enacting laws and enforcing their
execution, and of appointing judges to expound and administer them. If
it decides at all as a court, it necessarily affirms the existence and
authority of the government under which it is exercising judicial power."
(Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has
been effected through political action, the Court whose existence is
affected by such change is, in the words of Mr. Melville Fuller Weston,
"precluded from passing upon the fact of change by a logical difficulty
which is not to be surmounted."5 Such change in the organic law
relates to the existence of a prior point in the Court's "chain of title" to
its authority and "does not relate merely to a question of the horizontal
distribution of powers."6 It involves in essence a matter which "the
sovereign has entrusted to the so-called political departments of
government or has reserved to be settled by its own extra
governmental action."7
The non-judicial character of such a question has been recognized in
American law. "From its earliest opinions this Court has consistently
recognized," said Justice Frankfurter, in his illuminating dissent in
Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class
of controversies which do not lend themselves to judicial standards and
judicial remedies. To classify the various instances as "political
questions" is rather a form of stating this conclusion than revealing of
analysis ... The crux of the matter is that courts are not fit instruments
of decision where what is essentially at stake is the composition of
those large contests of policy traditionally fought out in non-judicial
forums, by which governments and the actions of governments are
made and unmade."
The diversity of views contained in the opinions of the members of this
Court, in the cases at bar, cannot be a case on "right" or "wrong" views
of the Constitution. It is one of attitudes and values. For there is
scarcely any principle, authority or interpretation which has not been
countered by the opposite. At bottom, it is the degree of one's faith —
in the nation's leadership and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and
the conclusion of this Court in its judgment of March question becomes
wholly moot except for this consideration, that, when the judges as
individuals or as a body of individuals come to decide which king or
which constitution they will support and assert to represent, it may
often be good judgment for them to follow the lead of the men who as a
practical matter are likely to be looked to by the people as more
representative of themselves and conversely are likely to be more
directly in touch with popular sentiment. If, however, the judges hold
too strong views of their own to be able to take this course, they may
follow their own leads at their own hazard. No question of law is
involved. (Political Questions, 38 Harvard Law Review [1924-25], pp.
305-309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY
PROVIDING FOR AMENDMENT AND REVISION @
1. Alaska (1959) — Art. XIII. Amendment and Revision.
Sec. 1. Amendments. Amendments to this constitution may be
proposed by a two-thirds vote of each house of the legislature. The
secretary of state shall prepare a ballot title and proposition
summarizing each proposed amendment, and shall place them on the
ballot for the next statewide election. If a majority of the votes cast on
127
the proposition favor the amendment, it becomes effective thirty days
after the certification of the election returns by the secretary of state.
Sec. 2. Convention. The legislature may call constitutional
conventions at any time.
Sec. 3. Call by referendum. If during any ten-year period a
constitutional convention has not been held, the secretary of state shall
place on the ballot for the next general election the question: "Shall
there be a Constitutional Convention?" If a majority of the votes cast on
the question are in the negative, the question need not be placed on
the ballot until the end of the next ten-year period. If a majority of the
votes cast on the question are in the affirmative, delegates to the
convention shall be chosen at the next regular statewide election,
unless the legislature provides for the election of the election delegates
at a special election. The secretary of state shall issue the call for the
convention. Unless other provisions have been made by law, the call
shall conform as nearly as possible to the act calling the Alaska
Constitutional Convention of 1955, including, but not limited to, number
of members, districts, election and certification of delegates, and
submission and ratification of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power
to amend or revise the constitution, subject only to ratification by the
people. No call for a constitutional convention shall limit these powers
of the convention.
2. California (1879) — Art. XVIII. Amending and Revising the
Constitution.
Sec. 1. Constitutional amendments. Any amendment or
amendments to this Constitution may be proposed in the Senate or
Assembly, and if two-thirds of all the members elected to each of the
houses shall vote in favor thereof, such proposed amendment or
amendments shall be entered in their Journals, with the yeas and nays
taken thereon; and it shall be the duty of the Legislature to submit such
proposed amendment or amendments to the people in such manner,
and at such time, and after such publication as may be deemed
expedient. Should more amendments than one be submitted at the
same election they shall be so prepared and distinguished, by numbers
or otherwise, that each can be voted on separately. If the people shall
approve and ratify such amendment or amendments, or any of them,
by a majority of the qualified electors voting thereon such amendment
or amendments shall become a part of this constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the
members elected to each branch of the Legislature shall deem it
necessary to revise this Constitution, they shall recommend to the
electors to vote at the next general for or against a Convention for that
purpose, and if a majority of the electors voting at such election on the
proposition for a Convention shall vote in favor thereof, the Legislature
shall, at its next session, provide by law for calling the same. The
Convention shall consist of a number of delegates not to exceed that of
both branches of the Legislature, who shall be chosen in the same
manner, and have the same qualifications, as Members of the
Legislature. The delegates so elected shall meet within three months
after their election at such place as the Legislature may direct. At a
special election to be provided for by law, the Constitution that may be
agreed upon by such Convention shall be submitted to the people for
their ratification or rejection, in such manner as the Convention may
determine. The returns of such election shall, in such manner as the
Convention shall direct, be certified to the Executive of the State, who
shall call to his assistance the Controller, Treasurer, and Secretary of
State, and compare the returns so certified to him; and it shall be the
duty of the Executive to declare, by his proclamation, such
Constitution, as may have been ratified by a majority of all the votes
cast at such special election, to be the Constitution of the State of
California.
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly
may at any time be a vote of two-thirds of the members elected to each
house, recommend to the electors of the state, to vote at the next
general election for or against a convention to revise, alter and amend
this constitution; and if a majority of those voting on the question shall
declare in favor of such convention, the general assembly shall, at the
next session, provide for the calling thereof. The number of members
of the convention shall be twice that of the senate and they shall be
elected in the same manner, at the same places, and in the same
districts. The general assembly shall, in the act calling the convention,
designate the day, hour and place of its meeting; fix the pay of its
members and officers, and provide for the payment of the same,
together with the necessary expenses of the convention. Before
proceeding, the members shall take an oath to support the constitution
of the United States, and of the state of Colorado, and to faithfully
discharge their duties as members of the convention. The qualifications
of members shall be the same as of members of the senate; and
vacancies occurring shall be filled in the manner provided for filling
vacancies in the general assembly. Said convention shall meet within
three months after such election and prepare such revisions,
alterations or amendments to the constitution as may be deemed
necessary; which shall be submitted to the electors for their ratification
or rejection at an election appointed by the convention for that purpose,
not less than two nor more than six months after adjournment thereof;
and unless so submitted and approved by a majority of the electors
voting at the election, no such revision, alteration or amendment shall
take effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment
or amendments to this constitution may be proposed in either house of
the general assembly, and if the same shall be voted for by two-thirds
of all the members elected to each house, such proposed amendment
or amendments, together with the ayes and noes of each house
hereon, shall be entered in full on their respective journals; the
proposed amendment or amendments shall be published with the laws
of that session of the general assembly, and the secretary of state shall
also cause the said amendment or amendments to be published in full
in not more than one newspaper of general circulation in each county,
for four successive weeks previous to the next general election for
members of the general assembly; and at said election the said
amendment or amendments shall be submitted to the qualified electors
of the state for their approval or rejection, and such as are approved by
a majority of those voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any
general election, each of said amendments shall be voted upon
separately and votes thereon cast shall be separately counted the
same as though but one amendment was submitted. But the general
assembly shall have no power to propose amendments to more than
six articles of this constitution at the same session.
4. Delaware (1897) — Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly;
procedure. Any amendment or amendments to this Constitution may
be proposed in the Senate or House of Representatives; and if the
same shall be agreed to by two-thirds of all the members elected to
each House, such proposed amendment or amendments shall be
entered on their journals, with the yeas and nays taken thereon, and
the Secretary of State shall cause such proposed amendment or
amendments to be published three months before the next general
election in at least three newspapers in each County in which such
newspaper shall be published; and if in the General Assembly next
after the said election such proposed amendment or amendments shall
upon yea and nay vote be agreed to by two-thirds of all the members
elected to each House, the same shall thereupon become part of the
Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of
delegates; quorum; powers and duties; vacancies. The General
Assembly by a two-thirds vote of all the members elected to each
House may from time to time provide for the submission to the qualified
electors of the State at the general election next thereafter the
question, "Shall there be a Convention to revise the Constitution and
amend the same?;" and upon such submission, if a majority of those
voting on said question shall decide in favor of a Convention for such
purpose, the General Assembly at its next session shall provide for the
election of delegates to such convention at the next general election.
Such Convention shall be composed of forty-one delegates, one of
whom shall be chosen from each Representative District by the
qualified electors thereof, and two of whom shall be chosen from New
Castle County, two from Kent County and two from Sussex County by
the qualified electors thereof respectively. The delegates so chosen
shall convene at the Capital of the State on the first Tuesday in
September next after their election. Every delegate shall receive for his
services such compensation as shall be provided by law. A majority of
the Convention shall constitute a quorum for the transaction of
business. The Convention shall have the power to appoint such
officers, employees and assistants as it may be deem necessary, and
fix their compensation, and provide for the printing of its documents,
journals, debates and proceedings. The Convention shall determine
the rules of its proceedings, and be the judge of the elections, returns
and qualifications of its members. Whenever there shall be a vacancy
in the office of delegate from any district or county by reason of failure
to elect, ineligibility, death, resignation or otherwise, a writ of election to
fill such vacancy shall be issued by the Governor, and such vacancy
shall be filled by the qualified electors of such district or county.
5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the
Legislature, at any regular session, or at any special or extra-ordinary
session thereof called for such purpose either in the governor's original
call or any amendment thereof, may propose the revision or
amendment of any portion or portions of this Constitution. Any such
revision or amendment may relate to one subject or any number of
subjects, but no amendment shall consist of more than one revised
article of the Constitution.
If the proposed revision or amendment is agreed to by three-fifths of
the members elected to each house, it shall be entered upon their
respective journals with the yeas and nays and published in one
newspaper in each county where a newspaper is published for two
times, one publication to be made not earlier than ten weeks and the
other not later than six weeks, immediately preceding the election at
128
which the same is to be voted upon, and thereupon submitted to the
electors of the State for approval or rejection at the next general
election, provided, however, that such revision or amendment may be
submitted for approval or rejection in a special election under the
conditions described in and in the manner provided by Section 3 of
Article XVII of the Constitution. If a majority of the electors voting upon
the amendment adopt such amendment the same shall become a part
of this Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature,
by a vote of two-thirds of all the members of both Houses, shall
determine that a revision of this Constitution is necessary, such
determination shall be entered upon their respective Journals, with
yea's and nay's thereon. Notice of said action shall be published
weekly in one newspaper in every county in which a newspaper is
published, for three months preceding the next general election of
Representatives, and in those countries where no newspaper is
published, notice shall be given by posting at the several polling
precincts in such counties for six weeks next preceding said election.
The electors at said election may vote for or against the revision in
question. If a majority of the electors so voting be in favor of revision,
the Legislature chosen at such election shall provide by law for a
Convention to revise the Constitution, said Convention to be held
within six months after the passage of such law. The Convention shall
consist of a number equal to the membership of the House of
Representatives, and shall be apportioned among the several counties
in the same manner as members of said House.
6. Idaho (1890) — Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or
amendments to this Constitution may be proposed in either branch of
the legislature, and if the same shall be agreed to by two-thirds of all
the members of each of the two houses, voting separately, such
proposed amendment or amendments shall, with the yeas and nays
thereon, be entered on their journals, and it shall be the duty of the
legislature to submit such amendment or amendments to the electors
of the state at the next general election, and cause the same to be
published without delay for at least six consecutive weeks, prior to said
election, in not less than one newspaper of the general circulation
published in each county; and if a majority of the electors shall ratify
the same, such amendment or amendments shall become a part of this
Constitution.
Sec. 3. Revision or amendments by convention. Whenever two-
thirds of the members elected to each branch of the legislature shall
deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next
general election, for or against a convention, and if a majority of all the
electors voting at said election shall have voted for a convention, the
legislature shall at the next session provide by law for calling the same;
and such convention shall consist of a number of members, not less
than double the number of the most numerous branch of the
legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
Sec. 3. Convention. At the general election to be held in the year
one thousand eight hundred and seventy, and in each tenth year
thereafter, and also at such times as the General Assembly may, by
law, provide, the question, "Shall there be a Convention to revise the
Constitution, and amend the same?" shall be decided by the electors
qualified to vote for members of the General Assembly; and in case a
majority of the electors so qualified, voting at such election, for and
against such proposition, shall decide in favor of a Convention for such
purpose, the General Assembly, at its next session, shall provide by
law for the election of delegates to such Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature;
submission to electors. Any amendment or amendments to this
constitution may be proposed in the senate or house of
representatives. If the same shall be agreed to by 2/3 of the members
elected to each house, such amendment or amendments shall be
entered on the journals, respectively, with the yeas and nays taken
thereon; and the same shall be submitted to the electors at the next
spring or autumn election thereafter, as the legislature shall direct; and,
if a majority of the electors qualified to vote for members of the
legislature voting thereon shall ratify and approve such amendment or
amendments, the same shall become part of the constitution.
Sec. 4. General revision; convention; procedure. At the Biennial
Spring Election to be held in the year 1961, in each sixteenth year
thereafter and at such times as may be provided by law, the question
of a General Revision of the Constitution shall be submitted to the
Electors qualified to vote for members of the Legislature. In case a
majority of the Electors voting on the question shall decide in favor of a
Convention for such purpose, at an Election to be held not later than
four months after the Proposal shall have been certified as approved,
the Electors of each House of Representatives District as then
organized shall Elect One Delegate for each Electors of each
Senatorial District as then organized shall Elect One Delegate for each
State Senator to which the District is entitled. The Delegates so elected
shall convene at the Capital City on the First Tuesday in October next
succeeding such election, and shall continue their sessions until the
business of the convention shall be completed. A majority of the
delegates elected shall constitute a quorum for the transaction of
business. ... No proposed constitution or amendment adopted by such
convention shall be submitted to the electors for approval as
hereinafter provided unless by the assent of a majority of all the
delegates elected to the convention, the yeas and nays being entered
on the journal. Any proposed constitution or amendments adopted by
such convention shall be submitted to the qualified electors in the
manner provided by such convention on the first Monday in April
following the final adjournment of the convention; but, in case an
interval of at least 90 days shall not intervene between such final
adjournment and the date of such election. Upon the approval of such
constitution or amendments by a majority of the qualified electors
voting thereon such constitution or amendments shall take effect on
the first day of January following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the
Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting
makes amendment valid. Whenever a majority of both houses of the
legislature shall deem it necessary to alter or amend this Constitution,
they may proposed such alterations or amendments, which proposed
amendments shall be published with the laws which have been passed
at the same session, and said amendments shall be submitted to the
people for their approval or rejection at any general election, and if it
shall appear, in a manner to be provided by law, that a majority of all
the electors voting at said election shall have voted for and ratified
such alterations or amendments, the same shall be valid to all intents
and purposes as a part of this Constitution. If two or more alterations or
amendments shall be submitted at the same time, it shall be so
regulated that the voters shall vote for or against each separately.
Sec. 2. Revision of constitution. Whenever two-thirds of the
members elected to each branch of the legislature shall think it
necessary to call a convention to revise this Constitution, they shall
recommend to the electors to vote at the next general election for
members of the legislature, for or against a convention; and if a
majority of all the electors voting at said election shall have voted for a
convention, the legislature shall, at their next session, provide by law
for calling the same. The convention shall consist of as many members
as the House of Representatives, who shall be chosen in the same
manner, and shall meet within three months after their election for the
purpose aforesaid.
Sec. 3. Submission to people of revised constitution drafted at
convention. Any convention called to revise this constitution shall
submit any revision thereof by said convention to the people of the
State of Minnesota for their approval or rejection at the next general
election held not less than 90 days after the adoption of such revision,
and, if it shall appear in the manner provided by law that three-fifths of
all the electors voting on the question shall have voted for and ratified
such revision, the same shall constitute a new constitution of the State
of Minnesota. Without such submission and ratification, said revision
shall be of no force or effect. Section 9 of Article IV of the Constitution
shall not apply to election to the convention.
10. Nevada (1864) — Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment or
amendments to this Constitution may be proposed in the Senate or
Assembly; and if the same shall be agreed to by a Majority of all the
members elected to each of the two houses, such proposed
amendment or amendments shall be entered on their respective
journals, with the Yeas and Nays taken thereon, and referred to the
Legislature then next to be chosen, and shall be published for three
months next preceding the time of making such choice. And if in the
Legislature next chosen as aforesaid, such proposed amendment or
amendments shall be agreed to by a majority of all the members
elected to each house, then it shall be the duty of the Legislature to
submit such proposed amendment or amendments to the people, in
such manner and at such time as the Legislature shall prescribe; and if
the people shall approve and ratify such amendment or amendments
by a majority of the electors qualified to vote for members of the
Legislature voting thereon, such amendment or amendments shall
become a part of the Constitution.
Sec. 2. Convention for revision of constitution; procedure. If at any
time the Legislature by a vote of two-thirds of the Members elected to
each house, shall determine that it is necessary to cause a revision of
this entire Constitution they shall recommend to the electors at the next
election for Members of the Legislature, to vote for or against a
convention, and if it shall appear that a majority of the electors voting at
such election, shall have voted in favor of calling a Convention, the
Legislature shall, at its next session provide by law for calling a
Convention to be holden within six months after the passage of such
law, and such Convention shall consist of a number of Members not
less that of both branches of the legislature. In determining what is a
majority of the electors voting such election, reference shall be had to
129
the highest number of vote cast at such election for the candidates of
any office or on any question.
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. It shall be the duty of
the selectmen, and assessors, of the several towns and places in this
state, in warning the first annual meetings for the choice of senators,
after the expiration of seven years from the adoption of this
constitution, as amended, to insert expressly in the warrant this
purpose, among the others for the meeting, to wit, to take the sense of
the qualified voters on the subject of a revision of the constitution; and,
the meeting being warned accordingly, and not otherwise, the
moderator shall take the sense of the qualified voters present as to the
necessity of a revision; and a return of the number of votes for and
against such necessity, shall be made by the clerk sealed up, and
directed to the general court at their then next session; and if, it shall
appear to the general court by such return, that the sense of the people
of the state has taken, and that, in the opinion of the majority of the
qualified voters in the state, present and voting at said meetings, there
is a necessity for a revision of the constitution, it shall be the duty of the
general court to call a convention for that purpose, otherwise the
general court shall direct the sense of the people to be taken, and then
proceed in the manner before mentioned. The delegates to be chosen
in the same manner, and proportioned, as the representatives to the
general court; provided that no alterations shall be made in this
constitution, before the same shall be laid before the towns and
unincorporated places, and approved by two thirds of the qualified
voters present and voting on the subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote.
Any amendment or amendments to this Constitution may be proposed
in either branch of the Legislature, and if the same shall be agreed to
by a majority of all the members elected to each of the two houses,
such proposed amendment or amendments shall, with yeas and nays
thereon, be entered in their journals and referred by the Secretary of
State to the people for their approval or rejection, at the next regular
general election, except when the Legislature, by a two-thirds vote of
each house, shall order a special election for that purpose. If a majority
of all the electors voting at such election shall vote in favor of any
amendment thereto, it shall thereby become a part of this Constitution.
If two or more amendments are proposed they shall be submitted in
such manner that electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which
is submitted to the voters shall embrace more than one general subject
and the voters shall vote separately for or against each proposal
submitted; provided, however, that in the submission of proposals for
the amendment of this Constitution by articles, which embrace one
general subject, each proposed article shall be deemed a single
proposals or proposition
Sec. 2. Constitutional convention to propose amendments or new
constitution. No convention shall be called by the Legislature to
propose alterations, revisions, or amendments to this Constitution, or
to propose a new Constitution, unless the law providing for such
convention shall first be approved by the people on a referendum vote
at a regular or special election, and any amendments, alterations,
revisions, or new Constitution, proposed by such convention, shall be
submitted to the electors of the State at a general or special election
and be approved by a majority of the electors voting thereon, before
the same shall become effective Provided, That the question of such
proposed convention shall be submitted to the people at least once in
every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or
amendments to this Constitution may be proposed in either branch of
the legislative assembly, and if the same shall be agreed to by a
majority of all the members elected to each of the two houses, such
proposed amendment or amendments shall, with the yeas and nays
thereon, be entered in their journals and referred by the secretary of
state to the people for their approval or rejection, at the next regular
election, except when the legislative assembly shall order a special
election for that purpose. If a majority of the electors voting on any
such amendment shall vote in favor thereof, it shall thereby become a
part of this Constitution. The votes for and against such amendment, or
amendments, severally, whether proposed by the legislative assembly
or by initiative petition, shall be canvassed by the secretary of state in
the presence of the governor, and if it shall appear to the governor that
the majority of the votes cast at said election on said amendment, or
amendments, severally, are cast in favor thereof, it shall be his duty
forthwith after such canvass, by his proclamation, to declare the said
amendment, or amendments, severally, having received said majority
of votes to have been adopted by the people of Oregon as part of the
Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. When two or more
amendments shall be submitted in the manner aforesaid to the voters
of this state at the same election, they shall be so submitted that each
amendment shall be voted on separately. No convention shall be
called to amend or propose amendments to this Constitution, or to
propose a new Constitution, unless the law providing for such
convention shall first be approved by the people on a referendum vote
at a regular general election. This article shall not be construed to
impair the right of the people to amend this Constitution by vote upon
an initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power
to amend this Constitution granted by section 1, Article IV, and section
1 of this Article, a revision of all or part of this Constitution may be
proposed in either house of the Legislative Assembly and, if the
proposed revision is agreed to by at least two-thirds of all the members
of each house, the proposed revision shall, with the yeas and nays
thereon, be entered in their journals and referred by the Secretary of
State to the people for their approval or rejection, notwithstanding
section 1, Article IV of this Constitution, at the next regular state-wide
primary election, except when the Legislative Assembly orders a
special election for that purpose. A proposed revision may deal with
more than one subject and shall be voted upon as one question. The
votes for and against the proposed revision shall be canvassed by the
Secretary of State in the presence of the Governor and, if it appears to
the Governor that the majority of the votes cast in the election on the
proposed revision are in favor of the proposed revision, he shall,
promptly following the canvass, declare, by his proclamation, that the
proposed revision has received a majority of votes and has been
adopted by the people as the Constitution of the State of Oregon, as
the case may be. The revision shall be in effect as the Constitution or
as a part of this Constitution from the date of such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any
amendments to his Constitution may be proposed in either house of
the Legislature, and if two-thirds of all the members elected of the two
houses, shall vote in favor thereof, such proposed amendment or
amendments shall be entered on their respective journals with the yeas
and nays taken thereon; and the Legislature shall cause the same to
be published in at least one newspaper in every county of the State,
where a newspaper is published, for two months immediately
preceding the next general election, at which time the said amendment
or amendments shall be submitted to the electors of the State, for their
approval or rejection, and if a majority of the electors voting thereon
shall approve the same, such amendment or amendments shall
become part of this Constitution. If two or more amendments are
proposed, they shall be so submitted as to enable the electors to vote
on each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever two-
thirds of the members, elected to each branch of the Legislature, shall
deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next
general election, for or against a convention, and, if a majority of all the
electors, voting at such election, shall vote for a convention. The
Legislature, at its next session, shall provide by law for calling the
same. The convention shall consist of not less than the number of
members in both branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or
amendments to this Constitution may be proposed in either branch of
the legislature, and, if the same shall be agreed to by two-thirds of all
the members of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the legislature to
submit such amendment or amendments to the electors of the state at
the next general election, in at least one newspaper of general
circulation, published in each county, and if a majority of the electors
shall ratify the same, such amendment or amendments shall become a
part of this constitution.
Sec. 2. How voted for. If two or more amendments are proposed,
they shall be submitted in such manner that the electors shall vote for
or against each of them separately.
Sec. 3. Constitutional convention; provision for. Whenever two-thirds
of the members elected to each branch of the legislature shall deem it
necessary to call a convention to revise or amend this constitution,
they shall recommend to the electors to vote at the next general
election for or against a convention, and if a majority of all the electors
voting at such election shall have voted for a convention, the
legislature shall at the next session provide by a law for calling the
same; and such convention shall consist of a number of members, not
less than double that of the most numerous branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such
convention shall have no validity until it has been submitted to and
adopted by the people.
130
Separate Opinions
MAKALINTAL, J., concurring:
CASTRO, J., concurring:
The preliminary question before this Court was whether or not the
petitioners had made out a sufficient prima facie case in their petitions
to justify their being given due course. Considering on the one hand
the urgency of the matter and on the other hand its transcendental
importance, which suggested the need for hearing the side of the
respondents before that preliminary question was resolved, We
required them to submit their comments on the petitions. After the
comments were filed We considered them as motions to dismiss so
that they could be orally argued. As it turned out, the hearing lasted
five days, morning and afternoon, and could not have been more
exhaustive if the petitions had been given due course from the
beginning.
The major thrust of the petitions is that the act of the Citizens
Assemblies as certified and proclaimed by the President on January
17, 1973 (Proclamation No. 1102) was not an act of ratification, let
alone a valid one, of the proposed Constitution, because it was not in
accordance with the existing Constitution (of 1935) and the Election
Code of 1971. Other grounds are relied upon by the petitioners in
support of their basic proposition, but to our mind they are merely
subordinate and peripheral.
Article XV, Section 1, of the 1935 Constitution provides that
amendments (proposed either by Congress in joint session or by a
Convention called by it for the purpose) "shall be valid part of this
Constitution when approved by a majority of votes cast at an election
at which the amendments submitted to the people for their ratification."
At the time Constitution was approved by the Constitutional Convention
on February 8, 1935, and ratified in a plebiscite held on following May
14, the word "election" had already a definite meaning in our law and
jurisprudence. It was not a vague and amorphous concept, but a
procedure prescribed by statute ascertaining the people's choices
among candidates for public offices, or their will on important matters
submitted to the pursuant to law, for approval. It was in this sense that
word was used by the framers in Article XV (also in Articles VI and VII),
and in accordance with such procedure that plebiscites were held to
ratify the very same Constitution in 1935 as well as the subsequent
amendments thereto, thus: in 1939 (Ordinance appended to the
Constitution); 1940 (establishment of a bicameral legislature; eligibility
of the President and the Vice President for re election; creation of the
Commission of Elections); 1947 (Parity Amendment); and 1967
(increase in membership of the House of Representatives and eligibility
of members of Congress to run for the Constitutional Convention
without forfeiture of their offices).
The Election Code of 1971, in its Section 2, states that "all elections of
public officers except barrio officials and plebiscites shall be conducted
in the manner provided by this Code." This is a statutory requirement
designed, as were the other election laws previously in force, to carry
out the constitutional mandate relative to the exercise of the right
suffrage, and with specific reference to the term "plebiscites," the
provision of Article XV regarding ratification of constitutional
amendments.
The manner of conducting elections and plebiscites provided by the
Code is spelled out in other sections thereof. Section 99 requires that
qualified voters be registered in a permanent list, the qualifications
being those set forth in Article V, Section 1, of the 1935 Constitution on
the basis of age (21), literacy and residence. These qualifications are
reiterated in Section 101 of the Election Code. Section 102 enumerates
the classes of persons disqualified to vote. Succeeding sections
prescribe the election paraphernalia to be used, the procedure for
registering voters, the records, of registration and the custody thereof,
the description and printing of official ballots, the actual casting of votes
and their subsequent counting by the boards of inspectors, the rules for
appreciation of ballots, and then the canvass and proclamation of the
results.
With specific reference to the ratification of the 1972 draft Constitution,
several additional circumstances should be considered:
(1) This draft was prepared and approved by a Convention
which had been convened pursuant to Resolution No. 2 passed by
Congress on March 16, 1967, which provides:
Sec. 7. The amendments proposed by the Convention shall be valid
and considered part of the Constitution when approved by a majority of
the votes cast in an election at which they are submitted to the people
for their ratification pursuant to Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
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.
The same procedure is prescribed in Article XVI, Section 2, for the
ratification of any future amendment to or revision of the said
Constitution.
(3) After the draft Constitution was approved by the
Constitutional Convention on November 30, 1972 the said body
adopted Resolution No. 5843, proposing "to President Ferdinand E.
Marcos that a decree be issued calling a plebiscite for the ratification of
the proposed New Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor." Pursuant to
said Resolution the President issued Decree No. 73 on the same day,
calling a plebiscite to be held on January 15, 1973, at which the
proposed Constitution "shall be submitted to the people for ratification
or rejection." The Decree had eighteen (18) sections in all, prescribing
in detail the different steps to be taken to carry out the process of
ratification, such as: (a) publication of the proposed Constitution in
English and Pilipino; (b) freedom of information and discussion; (c)
registration of voters: (d) appointment of boards of election inspectors
and designation of watchers in each precinct; (e) printing of official
ballots; (f) manner of voting to insure freedom and secrecy thereof; (g)
canvass of plebiscite returns; and (h) in general, compliance with the
provisions of the Election Code of 1971, with the Commission on
Elections exercising its constitutional and statutory powers of
supervision of the entire process.
There can hardly be any doubt that in everybody's view — from the
framers of the 1935 Constitution through all the Congresses since then
to the 1971 Constitutional Convention — amendments to the
Constitution should be ratified in only one way, that is, in an election or
plebiscite held in accordance with law and participated in only by
qualified and duly registered voters. Indeed, so concerned was this
Court with the importance and indispensability of complying with the
mandate of the (1935) Constitution in this respect that in the recent
case of Tolentino vs. Commission on Elections, No. L-34150, October
16, 1971 (41 SCRA 702), a resolution of the (1971) Constitutional
Convention submitting a proposed amendment for ratification to a
plebiscite to be held in November 1971 was declared null and void.
The amendment sought to reduce the voting age from twenty-one to
eighteen years and was approved by the Convention for submission to
a plebiscite ahead of and separately from other amendments still being
or to be considered by it, so as to enable the youth to be thus
enfranchised to participate in the plebiscite for the ratification of such
other amendments later. This Court held that such separate
submission was violative of Article XV, Section 1, of the Constitution,
which contemplated that "all the amendments to be proposed by the
same Convention must be submitted to the people in a single "election"
or plebiscite." * Thus a grammatical construction based on a singular,
instead of plural, rendition of the word "election" was considered a
sufficient ground to rule out the plebiscite which had been called to
ratify a proposed amendment in accordance with the procedure and
under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the
ratification of just one amendment, as in Tolentino vs. COMELEC, but
the ratification of an entire charter setting up a new form of
government; and the issue has arisen not because of a disputed
construction of one word or one provision in the 1935 Constitution but
because no election or plebiscite in accordance with that Constitution
and with the Election Code of 1971 was held for the purpose of such
ratification.
The Citizens Assemblies which purportedly ratified the draft
Constitution were created by Presidential Decree No. 86 dated
December 31, 1972, "to broaden the base of citizen participation in the
democratic process and to afford ample opportunities for the citizenry
to express their views on important national issues." The Assemblies
"shall consist of all persons who are residents of the barrio, district or
ward for at least six months, fifteen years of age or over, citizens of the
Philippines and who are registered in the lists of Citizen Assembly
members kept by the barrio, district or ward secretary." By Presidential
Decree No. 86-A, dated January 5, 1973, the Assemblies were
convened for a referendum between January 10 and 15, to "consider
vital national issues now confronting the country, like the holding of the
plebiscite on the new Constitution, the continuation of martial rule, the
convening of Congress on January 22, 1973, and the holding of
elections in November 1973."
On January 5, 1973 the newspapers came out with a list of four
questions to be submitted to the Citizens Assemblies, the fourth one
being as follows: "How soon would you like plebiscite on the new
Constitution to be held?" It should be noted in this connection that the
President had previously announced that he had ordered the
postponement of plebiscite which he had called for January 15, 1973
(Presidential Decree No. 73) for the ratification of the Constitution, and
that he was considering two new dates for the purpose — February 19
or March 5; that he had ordered that the registration of voters (pursuant
to Decree No. 73) be extended to accommodate new voters; and that
copies of the new Constitution would be distributed in eight dialects the
people. (Bulletin Today, December 24, 1972.)
131
On January 10, 1973 it was reported that one more question would be
added to the original four which were to be submitted to the Citizens
Assemblies. The question concerning plebiscite was reworded as
follows: "Do you like the plebiscite to be held later?" The implication, it
may likewise be noted, was that the Assemblies should express their
views as to the plebiscite should be held, not as to whether or not it
should be held at all.
The next day, January 11, it was reported that six additional questions
would be submitted, namely:
(1) Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interest?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify the new
Constitution?
(4) Do you want the elections to be held in November, 1973
accordance with the provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want the next
elections to be called?
(6) Do you want martial law to continue? [Bulletin Today,
January 11, 1973; emphasis supplied].
Appended to the six additional questions above quoted were the
suggested answers, thus:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it is
to be convened at all, it should not be done so until after at least seven
(7) years from the approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
If the Citizens Assemblies approve of the New Constitution, then the
new Constitution should be deemed ratified.
The vote of the Citizens Assemblies should already be considered the
plebiscite on the New Constitution.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections
will be enough for stability to be established in the country, for reforms
to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want him
to exercise his powers with more authority. We want him to be strong
and firm so that he can accomplish all his reform program and
establish normalcy in the country. If all other measures fail, we want
President Marcos to declare a revolutionary government along the
lines of the new Constitution without the ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported
referendum, the suggestion was broached, for the first time, that the
plebiscite should be done away with and a favorable vote by the
Assemblies deemed equivalent ratification. This was done, not in the
questionnaire itself, but in the suggested answer to question No. 3.
Strangely, however, it was not similarly suggested that an unfavorable
vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in
which the voting was conducted in the Citizen Assemblies, assuming
that such voting was held, was not within the intendment of Article XV,
Section 1, of the 1935 Constitution nor in accordance with the Election
Code of 1971. The referendum can by no means be considered as the
plebiscite contemplated in Section 2 of said Code and in Article XVII,
Section 16, of the draft Constitution itself, or as the election intended
by Congress when it passed Resolution No. 2 on March 16, 1967
calling a Convention for the revision of the 1935 Constitution. The
Citizens Assemblies were not limited to qualified, let alone registered
voters, but included all citizens from the age of fifteen, and regardless
of whether or not they were illiterates, feeble-minded, or ex convicts *
— these being the classes of persons expressly disqualified from
voting by Section 102 of the Election Code. In short, the constitutional
and statutory qualifications were not considered in the determination of
who should participate. No official ballots were used in the voting; it
was done mostly by acclamation or open show of hands. Secrecy,
which is one of the essential features of the election process, was not
therefore observed. No set of rules for counting the votes or of
tabulating them and reporting the figures was prescribed or followed.
The Commission on Elections, which is the constitutional body charged
with the enforcement and administration of all laws relative to the
conduct of elections, took no part at all, either by way of supervision or
in the assessment of the results.
It has been suggested that since according to Proclamation No. 1102
the overwhelming majority of all the members of the Citizens
Assemblies had voted for the adoption of the proposed Constitution
there was a substantial compliance with Article XV, Section 1, of the
1935 Constitution and with the Election Code of 1971. The suggestion
misses the point entirely. It is of the essence of a valid exercise of the
right of suffrage that not only must a majority or plurality of the voters
carry the day but that the same must be duly ascertained in
accordance with the procedure prescribed by law. In other words the
very existence of such majority or plurality depends upon the manner
of its ascertainment, and to conclude that it exists even if it has not
been ascertained according to law is simply to beg the issue, or to
assume the very fact to be established. Otherwise no election or
plebiscite could be questioned for non-compliance with the provisions
of the Election Law as long as it is certified that a majority of the
citizens had voted favorably or adversely on whatever it was that was
submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the
Citizens Assemblies, as certified by the President in Proclamation No.
1102, was not in accordance with the constitutional and statutory
procedure laid down for the purpose does not quite resolve the
questions raised in these cases. Such a finding, in our opinion, is on a
matter which is essentially justiciable, that is, within the power of this
Court to inquire into. It imports nothing more than a simple reading and
application of the pertinent provisions of the 1935 Constitution, of the
Election Code and of other related laws and official acts. No question
of wisdom or of policy is involved. But from this finding it does not
necessarily follow that this Court may justifiably declare that the
Constitution has not become effective, and for that reason give due
course to these petitions or grant the writs herein prayed for. The
effectivity of the said Constitution, in the final analysis, is the basic and
ultimate question posed by these cases, to resolve which
considerations other than judicial, and therefore beyond the
competence of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The
petitioners lay stress on the invalidity of the ratification process
adopted by the Citizens Assemblies and on that premise would have
this Court grant the reliefs they seek. The respondents represented by
the Solicitor General, whose theory may be taken as the official
position of the Government, challenge the jurisdiction of this Court on
the ground that the questions raised in the petitions are political and
therefore non-justiciable, and that in any case popular acquiescence in
the new Constitution and the prospect of unsettling acts done in
reliance thereon should caution against interposition of the power of
judicial review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in
their respective capacities as President and President Pro Tempore of
the Senate of the Philippines, and through their counsel, Senator
Arturo Tolentino, likewise invoke the political question doctrine, but on
a ground not concurred in by the Solicitor General, namely, that
approval of the 1973 Constitution by the people was made under a
revolutionary government, in the course of a successful political
revolution, which was converted by act of the people to the present de
jure government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court
for adjudication proceeded on the assumption, conceded by all, that
the Constitution was in full force and effect, with the power and
authority of the entire Government behind it; and the task of this Court
was simply to determine whether or not the particular act or statute that
was being challenged contravened some rule or mandate of that
Constitution. The process employed was one of interpretation and
synthesis. In the cases at bar there is no such assumption: the
Constitution (1935) has been derogated and its continued existence as
well as the validity of the act of derogation is issue. The legal problem
posed by the situation is aggravated by the fact that the political arms
of the Government — the Executive Departments and the two Houses
of Congress — have accepted the new Constitution as effective: the
former by organizing themselves and discharging their functions under
it, and the latter by not convening on January 22, 1973 or at any time
thereafter, as ordained by the 1935 Constitution, and in the case of a
majority of the members by expressing their option to serve in the
Interim National Assembly in accordance with Article XVIII, Section 2,
of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents
Puyat and Roy, may be taken up and restated at same length if only
because it would constitute, if sustained, the most convenient ground
for the invocation of the political-question doctrine. In support of his
theory, Senator Tolentino contends that after President Marcos
132
declared martial law on September 21, 1972 (Proclamation No. 1081)
he established a revolutionary government when he issued General
Order No. 1 the next day, wherein he proclaimed "that I shall govern
the nation and direct the operation of the entire government, including
all its agencies and instrumentalities, in my capacity, and shall exercise
all the powers and prerogatives appurtenant and incident to my
position as such Commander-in-Chief of all the Armed Forces of the
Philippines." By this order, it is pointed out, the Commander-in-Chief of
the Armed Forces assumed all the powers of government — executive,
legislative, and judicial; and thereafter proceeded to exercise such
powers by a series of Orders and Decrees which amounted to
legislative enactments not justified under martial law and, in some
instances, trenched upon the domain of the judiciary, by removing from
its jurisdiction certain classes of cases, such as "those involving the
validity, legality, or constitutionality of Proclamation No. 1081, or of any
decree, order or act issued, promulgated or performed by me or by my
duly designated representative pursuant thereto." (General Order No. 3
as amended by General Order No. 3-A, dated September 24, 1972.)
The ratification by the Citizens Assemblies, it is averred, was the
culminating act of the revolution, which thereupon converted the
government into a de jure one under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the
1973 Constitution and that such ratification as well as the
establishment of the government thereunder formed part of a
revolution, albeit peaceful, then the issue of whether or not that
Constitution has become effective and, as necessary corollary,
whether or not the government legitimately functions under it instead of
under the 1935 Constitution, is political and therefore non-judicial in
nature. Under such a postulate what the people did in the Citizen
Assemblies should be taken as an exercise of the ultimate sovereign
power. If they had risen up in arms and by force deposed the then
existing government and set up a new government in its place, there
could not be the least doubt that their act would be political and not
subject to judicial review but only to the judgment of the same body
politic act, in the context just set forth, is based on realities. If a new
government gains authority and dominance through force, it can be
effectively challenged only by a stronger force; judicial dictum can
prevail against it. We do not see that situation would be any different,
as far as the doctrine of judicial review is concerned, if no force had
been resorted to and the people, in defiance of the existing
Constitution but peacefully because of the absence of any appreciable
opposition, ordained a new Constitution and succeeded in having the
government operate under it. Against such a reality there can be no
adequate judicial relief; and so courts forbear to take cognizance of the
question but leave it to be decided through political means.
The logic of the political-question doctrine is illustrated in statement of
the U.S. Supreme Court in a case * relied upon, curiously enough, by
the Solicitor General, who disagrees with the revolutionary government
theory of Senator Tolentino. The case involved the issue of which of
two opposing governments struggling for supremacy in the State of
Rhode Island was the lawful one. The issue had previously come up in
several other cases before the courts of the State, which uniformly held
that the inquiry belonged to the political power and not to the judicial.
Commenting on the ruling thus arrived at, the U.S. Supreme Court
said: "And if a State court should enter upon the inquiry proposed in
this case, and should come to the conclusion that the government
under which it acted had been put aside and displaced by an opposing
government, it would cease to be a court, and incapable of
pronouncing a judicial decision upon the question it undertook to try. If
it decides at all as a court, it necessarily affirms the existence and
authority of the government under which it is exercising judicial power."
In other words, since the court would have no choice but to decide in
one way alone in order to be able to decide at all, the question could
not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden
would be applicable in the cases at bar only on the premise that the
ratification of the Constitution was a revolutionary act and that the
government now functioning it is the product of such revolution.
However, we are not prepared to agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification,
several significant circumstances may be noted. (1) The Citizens
Assemblies were created, according to Presidential Decree No. 86, "to
broaden the base of citizen participation in the democratic process and
to afford ample opportunities for the citizenry to express their views on
important national issues." (2) The President announced, according to
the Daily Express of January 2, 1973, that "the referendum will be in
the nature of a loose consultation with the people." (3) The question, as
submitted to them on the particular point at issue here, was "Do you a
approve of the Constitution?" (4) President Marcos, in proclaiming that
the Constitution had been ratified, stated as follows: "(S)ince the
referendum results show that more than ninety-five (95) per cent of the
members of the Barangays (Citizens Assemblies) are in favor of the
new Constitution, the Katipunan ng mga Barangay has strongly
recommended that the new Constitution should already be deemed
ratified by the Filipino people." (5) There was not enough time for the
Citizens Assemblies to really familiarize themselves with the
Constitution, much less with the many other subjects that were
submitted to them. In fact the plebiscite planned for January 15, 1973
under Presidential Decree No. 73 had been postponed to an indefinite
date, the reasons for the postponement being, as attributed to the
President in the newspapers, that "there was little time to campaign for
or against ratification" (Daily Express, Dec. 22, 1972); that he would
base his decision (as to the date, of the plebiscite) on the compliance
by the Commission (on Elections) on the publication requirement of the
new Charter and on the position taken by national leaders" (Daily
Express, Dec. 23, 1972); and that "the postponement would give us
more time to debate on the merits of the Charter." (Bulletin Today, Dec.
24, 1972.)
The circumstances above enumerated lead us to the conclusion that
the Citizens Assemblies could not have understood the referendum to
be for the ratification of the Constitution, but only for the expression of
their views on a consultative basis. Indeed, if the expression of those
views had been intended as an act of ratification (or of rejection as a
logical corollary) — there would have been no need for the Katipunan
ng mga Barangay to recommend that the Constitution should already
be deemed ratified, for recommendation imports recognition of some
higher authority in whom the final decision rests.
But then the President, pursuant to such recommendation, did proclaim
that the Constitution had been ratified and had come into effect. The
more relevant consideration, therefore, as far as we can see, should be
as to what the President had in mind in convening the Citizens
Assemblies, submitting the Constitution to them and proclaiming that
the favorable expression of their views was an act of ratification. In this
respect subjective factors, which defy judicial analysis and
adjudication, are necessarily involved.
In positing the problem within an identifiable frame of reference we find
no need to consider whether or not the regime established by
President Marcos since he declared martial law and under which the
new Constitution was submitted to the Citizens Assemblies was a
revolutionary one. The pivotal question is rather whether or not the
effectivity of the said Constitution by virtue of Presidential Proclamation
No. 1102, upon the recommendation of the Katipunan ng mga
Barangay, was intended to be definite and irrevocable, regardless of
non-compliance with the pertinent constitutional and statutory
provisions prescribing the procedure for ratification. We must confess
that after considering all the available evidence and all the relevant
circumstances we have found no reasonably reliable answer to the
question. On one hand we read, for instance, the following public
statements of the President:
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no turning back for our
people.
We have committed ourselves to this revolution. We have pledged to it
our future, our fortunes, our lives, our destiny. We have burned our
bridges behind us. Let no man misunderstand the strength of our
resolution. (A Report to the Nation, Jan. 7, 1973.)
On the occasion of the signing of Proclamation No. 1102 on January
17, 1973, the President said the following, among other things:
... We can, perhaps delimit the power of the people to speak on legal
matters, on justiciable matters, on matters that may come before the
experts and interpreters of the law. But we cannot disqualify the people
from speaking on what we and the people consider purely political
matters especially those that affect the fundamental law of the land.
... The political questions that were presented to the people are exactly
those that refer to the form of government which the people want ...
The implications of disregarding the people's will are too awesome to
be even considered. For if any power in government should even dare
to disregard the people's will there would be valid ground for revolt.
... Let it be known to everybody that the people have spoken and they
will no longer tolerate any attempt to undermine the stability of their
Republic; they will rise up in arms not in revolt against the Republic but
in protection of the Republic which they have installed. It is quite clear
when the people say, we ratify the Constitution, that they mean they
will not discard, the Constitution.
On January 19, 1973 the Daily Express published statement of the
President made the day before, from which the following portion is
quoted:
... the times are too grave and the stakes too high for us permit the
customary concessions to traditional democratic process to hold back
our people's clear and unequivocal resolve and mandate to meet and
overcome the extraordinary challenges presented by these
extraordinary times.
On the same occasion of the signing of Proclamation No. 1102 the
President made pointed reference to "the demand of some of our
citizens ... that when all other measures should fail, that the President
be directed to organize and establish a Revolutionary Government,"
but in the next breath added: "... if we do ratify the Constitution, how
can we speak of Revolutionary Government? They cannot be
compatible ..." "(I)t is my feeling," he said, "that the Citizens'
133
Assemblies which submitted this recommendation merely sought
articulate their impatience with the status quo that has brought about
anarchy, confusion and misery to the masses ..." The only alternatives
which the President clearly implied by the foregoing statements were
the ratification of the new Constitution and the establishment of a
revolutionary government, the latter being unnecessary, in his opinion,
because precisely the Constitution had been ratified. The third obvious
alternative was entirely ruled out, namely, a return to the 1935
Constitution, for it was the status quo under that Constitution that had
caused "anarchy, confusion and misery." The message seems clear:
rather than return to such status quo, he would heed the
recommendation of the Citizens' Assemblies to establish a
revolutionary government, because that would be the only other way to
carry out the reforms he had envisioned and initiated — reforms which,
in all fairness and honesty, must be given credit for the improved
quality of life in its many aspects, except only in the field of civil
liberties.
If there is any significance, both explicit and implicit, and certainly
unmistakable, in the foregoing pronouncements, it is that the step
taken in connection with the ratification of the Constitution was meant
to be irreversible, and that nothing anyone could say would make the
least difference. And if this is a correct and accurate assessment of the
situation, then we would say that since it has been brought about by
political action and is now maintained by the government that is in
undisputed authority and dominance, the matter lies beyond the power
of judicial review.
On the other hand, by avowals no less significant if not so emphatic in
terms, President Marcos has professed fealty to the Constitution. In
"Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution as an instrument of
individual and social change ... but that in a democratic society,
revolution is of necessity, constitutional, peaceful, and legal.
In his TV address of September 23, 1972, President Marcos told the
nation:
I have proclaimed martial law in accordance with the powers vested in
the President by the Constitution of the Philippines.
xxx xxx xxx
I repeat, this is not a military takeover of civil government functions.
The Government of the Republic of the Philippines which was
established by our people in 1946 continues.
xxx xxx xxx
I assure you that I am utilizing this power vested in me by the
Constitution to save the Republic and reform our society...
I have had to use this constitutional power in order that we may not
completely lose the civil rights and freedom which we cherish...
... We are against the wall. We must now defend the Republic with the
stronger powers of the Constitution.
(Vital Documents, pp. 1-12; emphasis supplied).
In the report of an interview granted by the President to the Newsweek
Magazine (published in the issue of January 29, 1973), the following
appears:
xxx xxx xxx
Q. Now that you have gotten off the constitutional track, won't
you be in serious trouble if you run into critical problems with your
programs?
R. I have never gotten off the constitutional track. Everything I
am doing is in accordance with the 1935 Constitution. The only thing is
that instead of 18-year-olds voting, we have allowed 15-year-olds the
right to vote. But the 15-year-olds of today are high-school students, if
not graduates, and they are better informed than my contemporaries at
that age. On the matter of whether it is constitutional to proclaim
martial law, it is constitutional because the Constitution provides for it
in the event of invasion, insurrection, rebellion or immediate danger
thereof. We may quarrel about whether what we have gone through is
sufficient cause to proclaim martial law but at the very least there is a
danger of rebellion because so many of our soldiers have been killed.
You must remember this (martial law provision) was lifted from the
American legislation that was the fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of
action to pursue belongs to the President. We have earlier made
reference to subjective factors on which this Court, to our mind, is in no
position to pass judgment. Among them is the President's own
assessment of the will of the people as expressed through the Citizens
Assemblies and of the importance of the 1973 Constitution to the
successful implementation of the social and economic reforms he has
started or envisioned. If he should decide that there is no turning back,
that what the people recommended through the Citizens Assemblies,
as they were reported to him, demand that the action he took pursuant
thereto be final and irrevocable, then judicial review is out of the
question.
In articulating our view that the procedure of ratification that was
followed was not in accordance with the 1935 Constitution and related
statutes, we have discharged our sworn duty as we conceive it to be.
The President should now perhaps decide, if he has not already
decided, whether adherence to such procedure is weighty enough a
consideration, if only to dispel any cloud of doubt that may now and in
the future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated for
resolution is whether or not the new Constitution, since its submission
to the Citizens Assemblies, has found acceptance among the people,
such issue being related to the political question theory propounded by
the respondents. We have not tarried on the point at all since we find
no reliable basis on which to form a judgment. Under a regime of
martial law, with the free expression of opinions through the usual
media vehicles restricted, we have no means of knowing, to the point
of judicial certainty, whether the people have accepted the
Constitution. In any event, we do not find the issue decisive insofar as
our vote in these cases is concerned. To interpret the Constitution —
that is judicial. That the Constitution should be deemed in effect
because of popular acquiescence — that is political, and therefore
beyond the domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more
than mere reiterations of the Supplemental Petitions filed by Counsel
Lorenzo M. Tañada on January 15, 1973 in the so called Plebiscite
Cases decided by this Court on January 22, 1978. Of course, there are
amplifications of some of the grounds previously alleged and in the
course of the unprecedented five-day hearing that was held from
February 12 to 16 last, more extensive and illuminating arguments
were heard by Us, but, in my estimation, and with due recognition of
the sincerety, brilliance and eloquence of counsels, nothing more
cogent and compelling than what had already been previously
presented by Counsel Tañada is before Us now. Accordingly, I cannot
see any reason why I should change the position I took in regard to the
earlier cases. I reiterate, therefore, the vote I cast when these petitions
were initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues
before the Court and the significance to our people and in history of the
individual stands of the members of the Court in relation to said issues
and to the final outcome of these cases, and considering that I
reserved before the filing of a more extended opinion, I will take this
opportunity to explain further why I hold that the 1973 Constitution is
already in force, if only to clarify that apart from the people's right of
revolution to which I made pointed reference in my previous opinion, I
can see now, after further reflection, that the vote of the people in the
referendum in the Citizens Assemblies held on January 10 to 15, 1973,
upon the result of which Proclamation 1102 is based, may be viewed
more importantly as a political act than as a purely legal one with the
result that such vote to consider the 1973 Constitution as ratified
without the necessity of holding a plebiscite in the form followed in the
previous ratification plebiscites in 1935 of the Constitution itself, 1937
of women's suffrage, 1939 of the amendments to the Ordinance
Appended to the Constitution, 1940 of the re-election of the President,
the bicameral legislature and the Commission on Elections, 1947 of the
parity amendment and 1967, rejecting the proposed increase in the
members of the House of Representatives and eligibility of members of
Congress to the Constitutional Convention, may be deemed as a valid
ratification substantially in compliance with the basic intent of Article
XV of the 1935 Constitution. If indeed this explanation may be
considered as a modification of my rationalization then, I wish to
emphasize that my position as to the fundamental issue regarding the
enforceability of the new Constitution is even firmer now than ever
before. As I shall elucidate anon, paramount considerations of national
import have led me to the conviction that the best interests of all
concerned would be best served by the Supreme Court holding that
the 1973 Constitution is now in force, not necessarily as a
consequence of the revolutionary concept previously suggested by me,
but upon the ground that as a political, more than as a legal, act of the
people, the result of the referendum may be construed as a
compliance with the substantiality of Article XV of the 1935
Constitution.
I WHEREAS, the people would like the citizens assemblies to conduct
The facts that gave rise to these proceedings are historical and well
known. Generally, they may be taken judicial notice of. They revolve
around the purported ratification of the Constitution of 1973 declared in
Proclamation 1102 issued by the President on January 17, 1973.
134
Pursuant to a joint resolution of the Congress sitting as a constituent
assembly approved on March 16, 1967, delegates to a constitutional
convention to propose amendments to the Constitution of 1935 were
elected in accordance with the implementing law, Republic Act 6132,
on November 10, 1970. Known as the Constitutional Convention of
1971, the assembly began its sessions on June 1, 1971. After
encountering a lot of difficulties, due to bitter rivalries over important
positions and committees and an incomprehensible fear of
overconcentrating powers in their officers, the delegates went about
their work in comparatively slow pace, and by the third quarter of 1972
had finished deliberations and second-reading voting only on an
insignificant number of proposals — until September 21, 1972, when
the President, not altogether unexpectedly, yet abruptly, issued
Proclamation 1081 declaring martial law throughout the country. An
attempt was made to have the Convention recessed until after the
lifting of martial law, and not long after the motion of Delegate Kalaw to
such effect was turned down, the activities within the assembly shifted
to high gear. As if unmindful of the arrest and continued detention of
several of its members, the convention gathered swift momentum in its
work, and on November 30, 1972, it approved by overwhelming vote
the draft of a complete constitution, instead of mere specific
amendments of particular portions of the Constitution of 1935.
Needless to say, before martial law was declared, there was full and
unlimited coverage of the workings in the convention by the mass
media. At the same time, public debates and discussions on various
aspects of proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No.
5843 proposing "to President Ferdinand Marcos that a decree be
issued calling a plebiscite for ratification of the proposed new
Constitution on appropriate date as he shall determine and providing
for necessary funds therefor." Acting under this authority, December 1,
1972, the President issued Presidential Decree No. 73 submitting the
draft constitution for ratification by the people at a plebiscite set for
January 15, 1973. This order contained provisions more or less similar
to the plebiscite laws passed by Congress relative to the past
plebiscites held in connection with previous proposed amendments.
In connection with the plebiscite thus contemplated, General Order No.
17 was issued ordering and enjoining the authorities to allow and
encourage public and free discussions on proposed constitution. Not
only this, subsequently, under date of December 17, 1972, the
President ordered the suspension the effects of martial law and lifted
the suspension of privilege of the writ of habeas corpus insofar as
activities connected with the ratification of the draft constitution were
concerned. These two orders were not, however, to last very long. On
January 7, 1973, the President, invoking information related to him that
the area of public debate and discussion had opened by his previous
orders was being taken advantage of by subversive elements to defeat
the purposes for which they were issued and to foment public
confusion, withdrew said orders and enjoined full and stricter
implementation of martial law.
In the meantime, the President had issued on December 3, 1972
Presidential Decree No. 86 creating Citizens Assemblies "so as to
afford ample opportunities for the citizenry to express their views on
important national issues" and one of the questions presented to said
assemblies was: "Do you like the plebiscite on the proposed
Constitution to be held later" So, the same order of January 7, 1973,
General Order No. 20, the President ordered, "that the plebiscite
scheduled to be held January 15, 1973, be postponed until further
notice".
In the meanwhile also, on January 5, 1973, the President issued
Presidential Decree, No. 86-A providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF
BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field
as gathered from barangays (citizens assemblies) that have so far
been established, the people would like to decide for themselves
questions or issues, both local and national, affecting their day-to-day
lives and their future;
WHEREAS, the barangays (citizens assemblies) would like themselves
to be the vehicle for expressing the views of the people on important
national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be
given legal status and due recognition as constituting the genuine,
legitimate and valid expression of the popular will; and
immediately a referendum on certain specified questions such as the
ratification of the new Constitution, continuance of martial law, the
convening of Congress on January 22, 1973, and the elections in
November 1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution as
Commander-in-Chief of all Armed Forces of the Philippines, do hereby
declare as part of the law of the land the following:
1. The present barangays (citizens assemblies) are created
under Presidential Decree No. 86 dated December 31, 1972, shall
constitute the base for citizen participation in governmental affairs and
their collective views shall be considered in the formulation of national
policies or programs and, wherever practicable, shall be translated into
concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider vital
national issues now confronting the country, like the holding of the
plebiscite on the new Constitution, the continuation of martial rule, the
convening of Congress on January 22, 1973, and the holding of
elections in November 1973, and others in the future, which shall serve
as guide or basis for action or decision by the national government;
3. The barangays (citizens assemblies) shall conduct between
January 10 and 15, 1973, a referendum on important national issues,
including those specified in paragraph 2 hereof, and submit results
thereof to the Department of Local Governments Community
Development immediately thereafter, pursuant to express will of the
people as reflected in the reports gathered from the many thousands of
barangays (citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our
Lord, nineteen hundred and seventy three.
And on January 7, 1973, this was followed by Presidential Decree No.
86-B reading thus:
PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS
ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86
dated December 31, 1972, the Barangays (Citizens Assemblies) have
petitioned the Office of the President to submit them for resolution
important national issues;
WHEREAS, one of the questions persistently mentioned refers to the
ratification of the Constitution proposed by the 1971 Constitutional
Convention;
WHEREAS, on the basis of the said petitions, it is evident that the
people believe that the submission of the proposed Constitution to the
Citizens Assemblies or Barangays should be taken as a plebiscite in
itself in view of the fact that freedom of debate has always been limited
to the leadership in political, economic and social fields, and that it is
now necessary to bring this down to the level of the people themselves
through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution,
do hereby order that important national issues shall from time to time
be referred to the Barangays (Citizens Assemblies) for resolution in
accordance with Presidential Decree No. 86-A dated January 5, 1973
and that the initial referendum shall include the matter of ratification of
the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments and
Community Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our
Lord, nineteen hundred and seventy-three.
And so it was that by January 10, 1973, when the Citizens Assemblies
thus created started the referendum which was held from said date to
January 15, 1973, the following questions were submitted to them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the affairs
of the government?.
but on January 11, 1973, six questions were added as follows:
(1) Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interests?
(2) Do you approve of the New Constitution?
(3) Do you want a plebiscite to be called to ratify the new
Constitution?
135
(4) Do you want the elections to be held in November, 1973 in
accordance with the provisions of the 1935 Constitution?
(5) If the elections would not be held, when do you want it to be
called?
(6) Do you want martial law to continue?
It is not seriously denied that together with the question the voters were
furnished "comments" on the said questions more or less suggestive of
the answer desired. It may assumed that the said "comments" came
from official sources, albeit specifically unidentified. As petitioners point
out, the most relevant of these "comments" were the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoke. Or if it is to
be convened at all, it should not be done so until after at least seven
(7) years from the approval of the New Constitution by the Citizens
Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered the
plebiscite on the New Constitution.
If the Citizens Assemblies approve of the new Constitution then the
new Constitution should be deemed ratified.
The Solicitor General claims, and there seems to be showing
otherwise, that the results of the referendum were determined in the
following manner:
Thereafter, the results of the voting were collated and sent to the
Department of Local Governments. The transmission of the results was
made by telegram, telephone, the provincial government SSB System
in each province connecting all towns; the SSB communication of the
PACD connecting most provinces; the Department of Public
Information Network System; the Weather Bureau Communication
System connecting all provincial capitals and the National Civil
Defense Network connecting all provincial capitals. The certificates of
results were then flown to Manila to confirm the previous figures
received by the aforementioned means of transmission. The
certificates of results tallied with the previous figures taken with the
exception of few cases of clerical errors.
The Department adopted a system of regionalizing the receiving
section of the Citizens Assemblies operation at the Department
wherein the identity of the barrio and the province was immediately
given to a staff in charge of each region. Every afternoon at 2:00
o'clock, the 11 regions submitted the figures they received from the
field to the central committee to tabulate the returns. The last figures
were tabulated at 12 midnight of January 16, 1973 and early morning
of January 17, 1973 and were then communicated to the President by
the Department of Local Governments.
The development culminated in the issuance by the President of
Proclamation 1102 on January 17, 1973. Said proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY
THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY
THE 1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred
seventy-one Constitutional Convention is subject to ratification by the
Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in
municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 6, dated December 31, 1972, composed of all
persons who are residents of the barrio, district or ward for at least six
months, fifteen years of age or over, citizens of the Philippines and
who are registered in the list of Citizen Assembly members kept by the
barrio, district or ward secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to
broaden the base of citizen participation in the democratic process and
to afford ample opportunity for the citizen to express their views on
important national issues;
WHEREAS, responding to the clamor of the people an pursuant to
Presidential Decree No. 86-A, dated January 5, 1973, the following
questions were posed before Citizens' Assemblies or Barangays: Do
you approve of the New Constitution? Do you still want a plebiscite to
be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five
hundred sixty one (14,976,561) members of all the Barangays
(Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against seven hundred forty-three thousand eight
hundred sixty nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to
be called to ratify the new Constitution fourteen million two hundred
ninety-eight thousand eight hundred fourteen (14,298,814) answered
that there was no need for plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a vote in a
plebiscite;
WHEREAS, since the referendum results show that more than ninety-
five (95) percent of the members of the Barangays (Citizen
Assemblies) are in favor of the New Constitution, the Katipunan ng
Mga Barangay has strongly recommended that the new Constitution
should already be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers in me vested by the Constitution,
do hereby certify and proclaim that the Constitution proposed by the
nineteen hundred and seventy-one (1971) Constitutional Convention
has been ratified by an overwhelmingly majority of all of the votes cast
by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused
the seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our
Lord, nineteen hundred and seventy-three.
The first attempt to question the steps just enumerated taken by the
President was in the so-called Plebiscite Cases, ten in number, which
were filed by different petitioners during the first half of December
1972.1 Their common target then was Presidential Decree No. 73, but
before the said cases could be decided, the series of moves tending in
effect to make them moot and academic insofar as they referred
exclusively to the said Presidential Decree began to take shape upon
the issuance of Presidential Decree No. 86-A, quoted above. And
when Presidential Decree No. 86-B, also above quoted, was issued
and the six additional questions which were first publicized on January
11, 1973 were known, together with the "comments", petitioners
sensed that a new and unorthodox procedure was being adopted to
secure approval by the people of the new Constitution, hence Counsel
Tañada, not being satisfied with the fate of his urgent motion for early
decision of the above ten cases dated January 12, 1973, filed on
January 15, 1973, his supplemental motion seeking the prohibition
against and injunction of the proceedings going on. Principal objective
was to prevent that the President be furnished the report of the results
of the referendum and thereby disable him from carrying out what
petitioners were apprehensively foreseeing would be done — the
issuance of some kind of proclamation, order or decree, declaring that
the new Constitution had been ratified. Reacting swiftly, the Court
resolved on the same day, January 15, which was Monday, to consider
the supplemental motion as a supplemental petition and to require the
respondents to answer the same the next Wednesday, January 17th,
before the hour of the hearing of the petition which set for 9:30 o'clock
in the morning of that day. The details what happened that morning
form part of the recital of facts the decision rendered by this Court in
the ten cases on January 22, 1973 and need not be repeated here.
Suffice it to state no that before the hearing could be closed and while
Counsel Tañada was still insisting on his prayer for preliminary
injunction or restraining order, the Secretary of Justice arrived and
personally handed to the Chief Justice a copy Proclamation 1102
which had been issued at about 11:00 o'clock that same morning. In
other words, the valiant and persistent efforts of petitioners and their
counsels were overtaken by adverse developments, and in the mind of
the majority of the members of the Court, the cases had become
academic. For my part, I took the view that even on the basis of the
supplemental petition and the answer thereto filed by respondents, the
Court could already decide on the fundamental issue of the validity
Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also
believed, inasmuch as Counsel Tañada's pleading and argument had
anticipated its issuance, but the majority felt it was not ready to resolve
the matter, for lack, according them, of full ventilation, and so, the
decision reserved petitioners the filing of the "appropriate" cases,
evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although
believed to be inconsequential by my learned brethren, I strongly feel
needs special attention. I refer to the point raised by Counsel Arturo M.
Tolentino for respondent Gil J. Puyat and Jose Roy, who have been
sued as President and President Pro Tempore of the Senate, to the
effect that change in the composition of the Supreme Court provided
for the 1973 Constitution, from the 11-man tribunal under the 1935
Constitution to a 15-man Court, makes of these cases which were filed
after January 17, 1973 the date when Proclamation 1102 declared the
new Constitution as ratified, political nature and beyond our jurisdiction.
The main consideration submitted in this connection is that inasmuch
as the number votes needed for a decision of this Court has been
increased from six to eight in ordinary cases and from eight to ten for
the declaration of unconstitutionality of a treaty, executive agreement2
136
or law, the Court would have to resolve first as a prejudicial question
whether the Court is acting in these cases as the 15-man or the 11-
man Court, in which event, it would be faced with the dilemma that if it
acts either as the former or as the latter, it would be prejudging the
very matter in issue one way or the other, and, in effect, it would be
choosing between two constitutions, which is a political determination
not within the Court's competence.
While I agree that the problem is at first blush rather involved, I do not
share the view that the premises laid down by counsel necessarily
preclude this Court from taking a definite stand on whether the Court is
acting in these cases as the 15-Man or the 11-man Court. I feel very
strongly that the issue should not be ignored or dodged, if only to make
the world know that the Supreme Court of the Philippines is never
incognizant of the capacity in which it is acting, much less lacking in
courage or wisdom to resolve an issue that relates directly to its own
composition. What a disgrace it would be to admit that this Supreme
Court does not know, to use a common apt expression, whether it is
fish or fowl. Withal, scholars and researchers who might go over our
records in the future will inevitably examine minutely how each of us
voted and upon what considerations we have individually acted, and,
indeed, doubts may arise as to whether or not, despite the general
result we might announce, there had been the requisite number of
votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an
issue of unconstitutionality, hence, if we are acting as the 11-man
Court, only six votes would suffice to declare Proclamation 1102
ineffective, and if upon analysis of our respective opinions it should be
inferable therefrom that six of us have considered the matter before the
Court as justiciable and at the same time have found the procedure of
ratification adopted in Presidential Decrees 86-A and 86-B and related
orders of the President as not being in conformity with Article XV of the
old Constitution, a cloud would exist as to efficacy of the dispositive
portion of Our decision dismiss these cases, even if we have it
understood that by the vote of justices in favor of such dismissal, We
intended to mean the implementation or enforcement of the new
Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to
speculation. By nature I am averse to ambiguity and equivocation and
as a member of the Supreme Court, last thing I should knowingly
countenance is uncertainty as to the juridical significance of any
decision of the Court which is precisely being looked upon as the
haven in which doubts are supposed to be authoritatively dispelled.
Besides, from very nature of things, one thing is indubitably beyond
dispute — we cannot act in both capacities of a 15-man and an 11-
man Court at the same time, in like manner that it is inconceivable that
the 1935 and 1973 Constitution can be considered by Us both in force.
Our inescapable duty is to make a choice between them, according to
what law and other considerations inherent to our function dictate. I
cannot bear the thought that someone may someday say that the
Supreme Court of the Philippines once decided a case without knowing
the basis of its author to act or that it was ever wanting in judicial
courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by
my sense of duty and propriety to straighten out this grave of issue
touching on the capacity in which the Court acting in these cases, I
hold that we have no alternative but adopt in the present situation the
orthodox rule that when validity of an act or law is challenged as being
repugnant constitutional mandate, the same is allowed to have effect
until the Supreme Court rules that it is unconstitutional. Stated
differently, We have to proceed on the assumption that the new
Constitution is in force and that We are acting in these cases as the
15-man Supreme Court provided for there Contrary to counsel's
contention, there is here no prejudgment for or against any of the two
constitutions. The truth of matter is simply that in the normal and logical
conduct governmental activities, it is neither practical nor wise to defer
the course of any action until after the courts have ascertained their
legality, not only because if that were to be the rule, the functioning of
government would correspondingly be undesirably hesitative and
cumbersome, but more importantly, because the courts must at the
first instance accord due respect to the acts of the other departments,
as otherwise, the smooth running of the government would have to
depend entirely on the unanimity of opinions among all its
departments, which is hardly possible, unless it is assumed that only
the judges have the exclusive prerogative of making and enforcing the
law, aside from being its sole interpreter, which is contrary to all norms
of juridical and political thinking. To my knowledge, there is yet no
country in the world that has recognized judicial supremacy as its basic
governmental principle, no matter how desirable we might believe the
idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our
acting on the assumption that this Court is still functioning under the
1935 Constitution. It is undeniable that the whole government,
including the provincial, municipal and barrio units and not excluding
the lower courts up to the Court of Appeals, is operating under the
1973 Constitution. Almost daily, presidential orders and decrees of the
most legislative character affecting practically every aspect of
governmental and private activity as well as the relations between the
government and the citizenry are pouring out from Malacañang under
the authority of said Constitution. On the other hand, taxes are being
exacted and penalties in connection therewith are being imposed
under said orders and decrees. Obligations have been contracted and
business and industrial plans have been and are being projected
pursuant to them. Displacements of public officials and employees in
big numbers are going on in obedience to them. For the ten justices of
the Supreme Court to constitute an island of resistance in the midst of
these developments, which even unreasoning obstinacy cannot ignore,
much less impede, is unimaginable, let alone the absurd and
complicated consequences such a position entails in the internal
workings within the judiciary amount its different components, what
with the lower courts considering such orders and decrees as forming
part of the law of the land in making their orders and decisions,
whereas the Supreme Court is holding, as it were, their effectivity at
bay if it is not being indifferent to or ignoring them.
It is suggested that the President, being a man of law, committed to
abide by the decision of the Supreme Court, and if the Court feels that
it cannot in the meantime consider the enforcement of the new
Constitution, he can wait for its decision. Accepting the truth of this
assertion, it does necessarily follow that by this attitude of the
President, considers the Supreme Court as still operating under the
Constitution. Quite on the contrary, it is a fact that he has given
instructions for the payment of the justices in accordance with the rate
fixed in the New Constitution. Not only that, official alter ego, the
Secretary of Justice, has been shoving this Court, since January 18,
1973, all matters related to the administrative supervision of the lower
courts which by the new charter has been transferred from the
Department of Justice to the Supreme Court, and as far as I know,
President has not countermanded the Secretary's steps in that
direction. That, on the other hand, the President has not augmented
the justices of the Court to complete the prescribed number of fifteen
is, in my appraisal, of no consequence considering that with the
presence of ten justices who are the Court now, there is a working
quorum, and the addition of new justices cannot in anyway affect the
voting on the constitutional questions now before Us because, while
there sufficient justices to declare by their unanimous vote illegality of
Proclamation 1102, the votes of the justices to added would only be
committed to upholding the same, since they cannot by any standard
be expected to vote against legality of the very Constitution under
which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable
and, even imperative, is that We are dealing here with a whole
constitution that radically modifies or alters only the form of our
government from presidential parliamentary but also other
constitutionally institutions vitally affecting all levels of society. It is, to
mind, unrealistic to insist on that, fundamentally, the 1973 Constitution
is the same 1935 Constitution, with a few improvements. A cursory
perusal of the former should convince anyone that it is in essence a
new one. While it does retain republicanism as the basic governmental
tenet, the institutional changes introduced thereby are rather radical
and its social orientation is decidedly more socialistic, just as its
nationalistic features are somewhat different in certain respects. One
cannot but note that the change embraces practically every part of the
old charter, from its preamble down to its amending and effectivity
clauses, involving as they do the statement of general principles, the
citizenship and suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and
responsibilities not only of citizens but also of officers of the
government and the provisions on the national economy as well as the
patrimony of the nation, not to mention the distinctive features of the
general provisions. What is more, the transitory provisions notably
depart from traditional and orthodox views in that, in general, the
powers of government during the interim period are more or less
concentrated in the President, to the extent that the continuation or
discontinuance of what is now practically a one-man-rule, is even left to
his discretion. Notably, the express ratification of all proclamations,
orders, decrees and acts previously issued or done by the President,
obviously meant to encompass those issued during martial law, is a
commitment to the concept of martial law powers being implemented
by President Marcos, in defiance of traditional views and prevailing
jurisprudence, to the effect that the Executive's power of legislation
during a regime of martial law is all inclusive and is not limited to the
matters demanded by military necessity. In other words, the new
constitution unlike any other constitution countenances the institution
by the executive of reforms which normally is the exclusive attribute of
the legislature.
Withal, the best proofs that by its expressed and implied intent, the
Constitution of 1973 is a new one, are that (1) Section 16 of its Article
XVII which provides that this constitution shall "supersede the
Constitution of nineteen hundred and thirty-five and all amendments
thereto" and (2) its transitory provisions expressly continue the
effectivity of existing laws, offices and courts as well as the tenure of all
incumbent officials, not adversely affected by it, which would have
been unnecessary if the old constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that
"(T)he incumbent members of the Judiciary (which include the Chief
Justice and Associate Justices of Supreme Court) may continue in
office (under the constitution) until they reach the age of seventy years,
etc." By virtue of the presumptive validity of the new charter, all of form
137
part of the 15-man-Court provided for therein correspondingly, We
have in legal contemplation, ceased in the meanwhile to be members
of the 11-man-Court in the 1935 Constitution. Should the Court finally
decide that the Constitution is invalid, then We would automatically
revert to our positions in the 11-man- Court, otherwise, We would just
continue to be in our membership in the 15-man-Court, unless We feel
We cannot in conscience accept the legality of existence. On the other
hand, if it is assumed that We are the 11-man-Court and it happens
that Our collective decision is in favor of the new constitution, it would
be problematical for any dissenting justice to consider himself as
included automatically in the 15-man-Court, since that would
tantamount to accepting a position he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation
1102 is invalid because the ratification of the 1973 Constitution it
purports to declare as having taken place as a result of the referendum
above-referred to is ineffective since it cannot be said on the basis of
the said referendum that said Constitution has been "approved by a
majority of the votes cast at an election" in the manner prescribed by
Article XV the Constitution of 1935. More specifically, they maintain
that the word "election" in the said Article has already acquired a
definite accepted meaning out of the consistent holding in the past of
ratification plebiscites, and accordingly, no other form of ratification can
be considered contemplated by the framers of the Old Constitution
than that which had been followed 1935, 1937, 1939, 1940, 1946 and
1967, the last three or four which were held under the supervision of
the Commission on Elections. Furthermore, they emphatically deny the
veracity of the proclaimed results of the referendum because,
according to them the referendum was a farce and its results were
manufactured or prefabricated, considering that Mr. Francisco Cruz,
who is supposed to have submitted the final report to the President,
which served as basis for Proclamation 1102, had no official authority
to render the same, and it is inconceivable and humanly impossible for
anyone to have been able to gather, tabulate and canvass the 15
million votes allegedly reported within the short period of time
employed. Of course, they also contend that in any event, there was no
proper submission because martial law per se creates constructive
duress which deprives the voters of the complete freedom needed for
the exercise of their right of choice and actually, there was neither time
nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for
the respondents is that the matter raised in the petitions is a political
one which the courts are not supposed to inquire into, and, anyway,
there has been a substantial compliance with Article XV of the 1935
Constitution, inasmuch as, disregarding unessential matters of form,
the undeniable fact is that the voting in the referendum resulted in the
approval by the people of the New Constitution.
I need not dwell at length on these variant positions of the parties. In
my separate opinion in the Plebiscite Cases, I already made the
observation that in view of the lack of solemnity and regularity in the
voting as well as in the manner of reporting and canvassing conducted
in connection with the referendum, I cannot say that Article XV of the
Old Constitution has been complied with, albeit I held that nonetheless,
the Constitution of 1973 is already in force. In order, however, to make
myself clearer on some relevant points, I would like to add a few
considerations to what I have already said in the former cases.
In my opinion in those cases, the most important point I took into
account was that in the face of the Presidential certification through
Proclamation 1102 itself that the New Constitution has been approved
by a majority of the people and having in mind facts of general
knowledge which I have judicial notice of, I am in no position to deny
that the result of the referendum was as the President had stated. I can
believe that the figures referred to in the proclamation may not
accurate, but I cannot say in conscience that all of them are
manufactured or prefabricated, simply because I saw with own eyes
that people did actually gather and listen discussions, if brief and
inadequate for those who are abreast of current events and general
occurrences, and that they did vote. I believe I can safely say that what
I have seen have also been seen by many others throughout the
country and unless it can be assumed, which honestly, I do not believe
to be possible, that in fact there were actually no meetings held and no
voting done in more places than those wherein there were such
meetings and votings, I am not prepared to discredit entirely the
declaration that there was voting and that the majority of the votes
were in favor of the New Constitution. If in fact there were substantially
less than 14 million votes of approval, the real figure, in my estimate,
could still be significant enough and legally sufficient to serve as basis
for a valid ratification.
It is contended, however, that the understanding was that the
referendum among the Citizens Assemblies was to be in the nature
merely of a loose consultation and not an outright submission for
purposes of ratification. I can see that at the outset, when the first set
of questions was released, such may have been the idea. It must not
be lost sight of, however, that if the newspaper reports are to be
believed, and I say this only because petitioners would consider the
newspapers as the official gazettes of the administration, the last set of
six questions were included precisely because the reaction to the idea
of mere consultation was that the people wanted greater direct
participation, thru the Citizens Assemblies, in decision-making
regarding matters of vital national interest. Thus, looking at things more
understandingly and realistically the two questions emphasized by
counsel, namely, (1) Do yo approve of the New Constitution? and (2)
Do you want plebiscite to be called to ratify the new Constitution?
should be considered no longer as loose consultations but as direct
inquiries about the desire of the voters regarding the matters
mentioned. Accordingly, I take it that if the majority had expressed
disapproval of the new Constitution, the logical consequence would
have been the complete abandonment of the idea of holding any
plebiscite at all. On the other hand, it is very plain to see that since the
majority has already approved the new Constitution, a plebiscite would
be superfluous. Clear as these rationalizations may be, it must have
been thought that if the holding of a plebiscite was to be abandoned,
there should be a direct and expressed desire of the people to such
effect in order to forestall as much as possible any serious controversy
regarding the non-holding of the plebiscite required by the letter of
Section 16 of Article XVII, the effectivity clause, of the new
Constitution. Oddly enough, the "comments" accompanying the
questions do strongly suggest this view. And as it turned out, the
majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New
Constitution? capital is being made of the point that as so framed, the
thrust of the said question does not seek an answer of fact but of
opinion. It is argued that it would have been factual were it worded
categorically thus — Do you approve the New Constitution? The
contention would have been weighty were it not unrealistic. I remember
distinctly that the observation regarding the construction of the subject
question was not originally made by any of the talented counsels for
petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery
of the English language can rightly be the cause of envy of even
professors of English. None of the other members of the Court, as far
as I can recall, ever noticed how the said question is phrased, or if
anyone of Us did, I am not aware that he gave it more than passing
attention. What I mean is that if neither any of the distinguished and
learned counsels nor any member of the Court understood the said
question otherwise than calling for a factual answer instead of a mere
opinion, how could anyone expect the millions of unlettered members
of the Citizens Assemblies to have noticed the point brought out by
Justice Castro? Truth to tell, I myself did not realize the difference until
Justice Castro gave it emphasis. Besides, reading the question in the
light of the accompanying "comment" corresponding to it in particular, I
am certain that any one who answered the same understood it in no
other sense than a direct inquiry as to whether or not, as a matter of
fact, he approves the New Constitution, and naturally, affirmative
answer must be taken as a categorical vote of approval thereof,
considering, particularly, that according to the reported result of the
referendum said answer was even coupled with the request that the
President defer the convening of the Interim National Assembly.
It is also contended that because of this reference in answer to that
question to the deferment of the convening of the interim assembly, the
said answer is at best a conditional approval not proper nor acceptable
for purposes of ratification plebiscite. The contention has no basis. In
interest of accuracy, the additional answer proposed in pertinent
"comment" reads as follows: "But we do not want Ad Interim Assembly
to be convoked etc." On the assumption that the actual answer, as
reported, was of similar tenor, it is not fair to ascribe to it the imposition
of a condition. At most, the intention is no more than a suggestion or a
wish.
As regards said "comments", it must be considered that a martial law
was declared, the circumstances surrounding making of the
Constitution acquired a different and more meaningful aspect, namely,
the formation of a new society. From the point of view of the President
and on the basis of intelligence reports available to him, the only way
to meet situation created by the subversive elements was to introduce
immediately effective reforms calculated to redeem the people from the
depth of retrogression and stagnation caused by rampant graft and
corruption in high places, influence peddling, oligarchic political
practices, private armies, anarchy, deteriorating conditions of peace
and order, the so inequalities widening the gap between the rich and
the poor, and many other deplorable long standing maladies crying for
early relief and solution. Definitely, as in the case of rebellious
movement that threatened the Quirino Administration, the remedy was
far from using bullets alone. If a constitution was to be approved as an
effective instrument towards the eradication of such grave problems, it
had to be approved without loss of time and sans the cumbersome
processes that, from the realistic viewpoint, have in the past obstructed
rather than hastened the progress of the people. Stated otherwise, in
the context of actualities, the evident objective in having a new
constitution is to establish new directions in the pursuit of the national
aspirations and the carrying out of national policies. Only by bearing
these considerations in mind can the "comments" already referred to
be properly appreciated. To others said "comments" may appear as
evidence of corruption of the will of those who attended the
assemblies, but actually, they may also be viewed in the same light as
the sample ballots commonly resorted to in the elections of officials,
which no one can contend are per se means of coercion. Let us not
forget that the times are abnormal, and prolonged dialogue and
exchange of ideas are not generally possible, nor practical, considering
138
the need for faster decisions and more resolute action. After all voting
on a whole new constitution is different from voting on one, two or
three specific proposed amendments, the former calls for nothing more
than a collective view of all the provisions of the whole charter, for
necessarily, one has to take the good together with the bad in it. It is
rare for anyone to reject a constitution only because of a few specific
objectionable features, no matter how substantial, considering the ever
present possibility that after all it may be cured by subsequent
amendment. Accordingly, there was need to indicate to the people the
paths open to them in their quest for the betterment of their conditions,
and as long as it is not shown that those who did not agree to the
suggestions in the "comments" were actually compelled to vote against
their will, I am not convinced that the existence of said "comments"
should make any appreciable difference in the court's appraisal of the
result of the referendum.
I must confess that the fact that the referendum was held during martial
law detracts somehow from the value that the referendum would
otherwise have had. As I intimated, however, in my former opinion, it is
not fair to condemn and disregard the result of the referendum barely
because of martial law per se. For one thing, many of the objectionable
features of martial law have not actually materialized, if only because
the implementation of martial law since its inception has been generally
characterized by restraint and consideration, thanks to the expressed
wishes of the President that the same be made "Philippine style",
which means without the rigor that has attended it in other lands and
other times. Moreover, although the restrictions on the freedom of
speech, the press and movement during martial law do have their
corresponding adverse effects on the area of information which should
be open to a voter, in its real sense what "chills" his freedom of choice
and mars his exercise of discretion is suspension of the privilege of the
writ of habeas corpus. The reason is simply that a man may freely and
correctly vote even if the needed information he possesses as to the
candidates or issues being voted upon is more or less incomplete, but
when he is subject to arrest and detention without investigation and
without being informed of the cause thereof, that is something else
which may actually cause him to cast a captive vote. Thus it is the
suspension of the writ of habeas corpus accompanying martial law that
can cause possible restraint on the freedom choice in an election held
during martial law. It is a fact, however, borne by history and actual
experience, that in the Philippines, the suspension of the privilege of
the writ habeas corpus has never produced any chilling effect upon the
voters, since it is known by all that only those who run afoul the law,
saving inconsequential instances, have any cause for apprehension in
regard to the conduct by them of the normal activities of life. And so it
is recorded that in the elections 1951 and 1971, held while the privilege
of writ of habeas corpus was under suspension, the Filipino voters
gave the then opposition parties overwhelming if not sweeping
victories, in defiance of the respective administrations that ordered the
suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to
show that the result of the referendum may considered as sufficient
basis for declaring that the New Constitution has been ratified in
accordance with the amending clause of the 1935 Constitution. I
reiterate that in point of law, I find neither strict nor substantial
compliance. The foregoing discussion is only to counter, if I may,
certain impression regarding the general conditions obtaining during
and in relation to the referendum which could have in one way or
another affected the exercise of the freedom of choice and the use of
discretion by the members of the Citizens Assemblies, to the end that
as far as the same conditions may be relevant in my subsequent
discussions of the acceptance by the people of the New Constitution
they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been
accepted or adopted by the people. And on this premise, my
considered opinion is that the Court may no longer decide these cases
on the basis of purely legal considerations. Factors which are non-legal
but nevertheless ponderous and compelling cannot be ignored, for
their relevancy is inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding
that the question of whether or not there was proper submission under
Presidential Decree No. 73 is justiciable, and I still hold that the
propriety of submission under any other law or in any other form is
constitutionally a fit subject for inquiry by the courts. The ruling in the
decided cases relied upon by petitioners are to this effect. In view,
however, of the factual background of the cases at bar which include
ratification itself, it is necessary for me to point out that when it comes
to ratification, I am persuaded that there should be a boundary beyond
which the competence of the courts no longer has any reason for
being, because the other side is exclusively political territory reserved
for their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by
the people. Others may feel there is not enough indication of such
acceptance in the record and in the circumstances the Court can take
judicial notice of. For my part, I consider it unnecessary to be strictly
judicial in inquiring into such fact. Being personally aware, as I have
already stated, that the Citizens Assemblies did meet and vote, if
irregularly and crudely, it is not for me to resort, for the purposes of
these cases, to judicial tape and measure, to find out with absolute
precision the veracity of the total number of votes actually cast. After
all, the claims that upon a comparison of conflicting reports, cases of
excess votes may be found, even if extrapolated will not, as far as I
can figure out, suffice to overcome the outcome officially announced.
Rather than try to form a conclusion out of the raw evidence before Us
which the parties did not care to really complete, I feel safer by
referring to the results announced in the proclamation itself. Giving
substantial allowances for possible error and downright manipulation, it
must not be overlooked that, after all, their having been accepted and
adopted by the President, based on official reports submitted to him in
due course of performance of duty of appropriate subordinate officials,
elevated them to the category of an act of a coordinate department of
the government which under the principle separation of powers is
clothed with presumptive correctness or at least entitled to a high
degree of acceptability, until overcome by better evidence, which in
these cases does not exist. In any event, considering that due to the
unorthodoxy of the procedure adopted and the difficulty of an accurate
checking of all the figures, I am unable to conceive of any manageable
means of acquiring information upon which to predicate a denial, I
have no alternative but to rely on what has been officially declared. At
this point, I would venture to express the feeling that if it were not
generally conceded that there has been sufficient showing of the
acceptance in question by this time, there would have been already
demonstrative and significant indications of a rather widespread, if not
organized resistance in one form or another. Much as they are to be
given due recognition as magnificent manifestations of loyalty and
devotion to principles, I cannot accord to the filing of these cases as
indicative enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning the Court in
Tolentino vs. Comelec, 41 SCRA 702, I made strong and unequivocal
pronouncements to the effect that any amendment to the Constitution
of 1935, to be valid, must appear to have been made in strict
conformity with the requirements of Article XV thereof. What is more,
that decision asserted judicial competence to inquire into the matter of
compliance or non compliance as a justiciable matter. I still believe in
the correctness of those views and I would even add that I sincerely
feel it reflects the spirit of the said constitutional provision. Without
trying to strain any point however, I, submit the following
considerations in the context of the peculiar circumstances of the
cases now at bar, which are entirely different from those in the
backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just
an amendment of a particular provision of an existing Constitution;
here, it is, as I have discussed earlier above, an entirely new
Constitution that is being proposed. This important circumstance
makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy,
who was himself the petitioner in the case I have just referred to is,
now inviting Our attention to the exact language of Article XV and
suggesting that the said Article may be strictly applied to proposed
amendments but may hardly govern the ratification of a new
Constitution. It is particularly stressed that the Article specifically refers
to nothing else but "amendments to this Constitution" which if ratified
"shall be valid as part of this Constitution." Indeed, how can a whole
new constitution be by any manner of reasoning an amendment to any
other constitution and how can it, if ratified, form part of such other
constitution? In fact, in the Tolentino case I already somehow hinted
this point when I made reference in the resolution denying the motion
for reconsideration to the fact that Article XV must be followed "as long
as any amendment is formulated and submitted under the aegis of the
present Charter." Said resolution even added. "(T)his is not to say that
the people may not, in the exercise of their inherent revolutionary
powers, amend the Constitution or promulgate an entirely new one
otherwise.".
It is not strange at all to think that the amending clause of a constitution
should be confined in its application only to proposed changes in any
part of the same constitution itself, for the very fact that a new
constitution is being adopted implies a general intent to put aside the
whole of the old one, and what would be really incongrous is the idea
that in such an eventuality, the new Constitution would subject its going
into effect to any provision of the constitution it is to supersede, to use
the language precisely of Section 6, Article XVII, the effectivity clause,
of the New Constitution. My understanding is that generally,
constitutions are self-born, they very rarely, if at all, come into being, by
virtue of any provision of another constitution. 3 This must be the
reason why every constitution has its own effectivity clause, so that if,
the Constitutional Convention had only anticipated the idea of the
referendum and provided for such a method to be used in the
ratification of the New Constitution, I would have had serious doubts as
to whether Article XV could have had priority of application.
2. When an entirely new constitution is proposed to supersede
the existing one, we cannot but take into consideration the forces and
the circumstances dictating the replacement. From the very nature of
things, the proposal to ordain a new constitution must be viewed as the
most eloquent expression of a people's resolute determination to bring
about a massive change of the existing order, a meaningful
139
transformation of the old society and a responsive reformation of the
contemporary institutions and principles. Accordingly, should any
question arise as to its effectivity and there is some reasonable
indication that the new charter has already received in one way or
another the sanction of the people, I would hold that the better rule is
for the courts to defer to the people's judgment, so long as they are
convinced of the fact of their approval, regardless of the form by which
it is expressed provided it be reasonably feasible and reliable.
Otherwise stated, in such instances, the courts should not bother about
inquiring into compliance with technical requisites, and as a matter of
policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of
great relevancy. I refer to the ostensible reaction of the component
elements, both collective and individual, of the Congress of the
Philippines. Neither the Senate nor the House of Representatives has
been reported to have even made any appreciable effort or attempt to
convene as they were supposed to do under the Constitution of 1935
on January 22, 1973 for the regular session. It must be assumed that
being composed of experienced, knowledgeable and courageous
members, it would not have been difficult for said parliamentary bodies
to have conceived some ingenious way of giving evidence of their
determined adherence to the Constitution under which they were
elected. Frankly, much as I admire the efforts of the handful of
senators who had their picture taken in front of the padlocked portals of
the Senate chamber, I do not feel warranted to accord such act as
enough token of resistance. As counsel Tolentino has informed the
court, there was noting to stop the senators and the congressmen to
meet in any other convenient place and somehow officially organize
themselves in a way that can logically be considered as a session,
even if nothing were done than to merely call the roll and disperse.
Counsel Tolentino even pointed out that if there were not enough
members to form a quorum, any smaller group could have ordered the
arrest of the absent members. And with particular relevance to the
present cases, it was not constitutionally indispensable for the
presiding officers to issue any call to the members to convene, hence
the present prayers for mandamus have no legal and factual bases.
And to top it all, quite to the contrary, the records of the Commission on
Elections show that at least 15 of 24 senators and over 95 out of less
than 120 members of the House of Representatives, have officially and
in writing exercised the option given to them to join the Interim National
Assembly under the New Constitution, thereby manifesting their
acceptance of the new charter.
Now, having these facts in mind, and it being obvious that of the three
great departments of the government under the 1935 Constitution, two,
the Executive and the Legislative, have already accepted the New
Constitution and recognized its enforceability and enforcement, I
cannot see how this Supreme Court can by judicial fiat hold back the
political developments taking place and for the sake of being the
guardian of the Constitution and the defender of its integrity and
supremacy make its judicial power prevail against the decision of those
who were duly chosen by the people to be their authorized spokesmen
and representatives. It is not alone the physical futility of such a
gesture that concerns me. More than that, there is the stark reality that
the Senators and the Congressmen, no less than the President, have
taken the same oath of loyalty to the Constitution that we, the Justices,
have taken and they are, therefore, equally bound with Us to preserve
and protect the Constitution. If as the representatives of the people,
they have already opted to accept the New Constitution as the more
effective instrument for fulfillment of the national destiny, I really
wonder if there is even any idealistic worth in our desperately clinging
by Ourselves alone to Our sworn duty vis-a-vis the 1935 Constitution.
Conscious of the declared objectives of the new dispensation and
cognizant of the decisive steps being with the least loss of time,
towards their accomplishment, cannot but feel apprehensive that
instead of serving the best interests of our people, which to me is in
reality the real meaning of our oath of office, the Court might be
standing in the way of the very thing our beloved country needs to
retrieve its past glory and greatness. In other words, it is my conviction
that what these cases demand most of all is not a decision
demonstrative of our legal erudition and Solomonic wisdom but an all
rounded judgment resulting from the consideration of all relevant
circumstances, principally the political, or, in brief, a decision more
political than legal, which a court can render only by deferring to the
apparent judgment of the people and the announcement thereof by the
political departments of the government and declaring the matter non-
justiciable.
4. Viewed from the strictly legal angle and in the light of judicial
methods of ascertainment, I cannot agree with the Solicitor General
that in the legal sense, there has been at least substantial compliance
with Article XV of the 1935 Constitution, but what I can see is that in a
political sense, the answers to the referendum questions were not
given by the people as legal conclusions. I take it that when they
answered that by their signified approval of the New Constitution, they
do not consider it necessary to hold a plebiscite, they could not have
had in mind any intent to do what was constitutionally improper.
Basically accustomed to proceed along constitutional channels, they
must have acted in the honest conviction that what was being done
was in conformity with prevailing constitutional standards. We are not
to assume that the sovereign people were indulging in a futile exercise
of their supreme political right to choose the fundamental charter by
which their lives, their liberties and their fortunes shall be safeguarded.
In other words, we must perforce infer that they meant their decision to
count, and it behooves this Court to render judgment herein in that
context. It is my considered opinion that viewed understandingly and
realistically, there is more than sufficient ground to hold that, judged by
such intent and, particularly, from the political standpoint, the
ratification of the 1973 Constitution declared in Proclamation 1102
complies substantially with Article XV of the 1935 Charter, specially
when it is considered that the most important element of the ratification
therein contemplated is not in the word "election", which conceivably
can be in many feasible and manageable forms but in the word
"approved" which may be said to constitute the substantiality of the
whole article, so long as such approval is reasonably ascertained. In
the last analysis, therefore, it can be rightly said, even if only in a broad
sense, that the ratification here in question was constitutionally justified
and justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of
the New Constitution on legal grounds, the same should be dispelled
by viewing the situation in the manner suggested by Counsel Tolentino
and by the writer of this opinion in his separate opinion, oft-referred to
above, in the Plebiscite Cases — that is, as an extra constitutional
exercise by the people, under the leadership of President Marcos, of
their inalienable right to change their fundamental charter by any
means they may deem appropriate, the moment they are convinced
that the existing one is no longer responsive to their fundamental,
political and social needs nor conducive to the timely attainment of
their national destiny. This is not only the teaching of the American
Declaration of Independence but is indeed, a truth that is self-evident.
More, it should be regarded as implied in every constitution that
regardless of the language of its amending clause, once the people
have given their sanction to a new charter, the latter may be deemed
as constitutionally permissible even from the point of view of the
preceding constitution. Those who may feel restrained to consider this
view out of respect to the import of Tolentino vs. Comelec, supra.,
would be well advised to bear in mind that the case was decided in the
context of submission, not accomplished ratification.
V judicial inquiry, tested by the definition of a political question
The language of the disputed amending clause of the 1935
Constitution should not be deemed as the be all and end all the nation.
More important than even the Constitution itself with all its excellent
features, are the people living under it — their happiness, their
posterity and their national destiny. There is nothing that cannot be
sacrificed in the pursuit of these objectives, which constitute the totality
of the reasons for national existence. The sacred liberties and freedom
enshrined in it and the commitment and consecration thereof to the
forms of democracy we have hitherto observed are mere integral parts
of this totality; they are less important by themselves.
What seems to me to be bothering many of our countrymen now is that
by denying the present petitions, the Court would be deemed as
sanctioning, not only the deviations from traditional democratic
concepts and principles but also the qualified curtailment of individual
liberties now being practiced, and this would amount, it is feared, to a
repudiation of our oath to support and defend the Constitution of 1935.
This is certainly something one must gravely ponder upon. When I
consider, however, that the President, the Vice President, the
members of both Houses of Congress, not to speak of all executive
departments and bureaus under them as well as all the lower courts,
including the Court of Appeals have already accepted the New
Constitution as an instrument of a meaningful nationwide-all-level
change in our government and society purported to make more
realistic and feasible, rather than idealistic and cumbersomely
deliberative, the attainment of our national aspirations, I am led to
wonder whether or not we, as members of the Supreme Court are
being true to our duty to our people by refusing to follow suit and
accept the realities of the moment, despite our being convinced of the
sincerity and laudableness of their objectives, only because we feel
that by the people's own act of ratifying the Constitution of 1935, they
have so encased themselves within its provisions and may, therefore,
no longer take measures to redeem themselves from the situation
brought about by the deficiencies of the old order, unless they act in
strict conformity therewith. I cannot believe that any people can be so
stifled and enchained. In any event, I consider it a God-given attribute
of the people to disengage themselves, if necessary, from any
covenant that would obstruct their taking what subsequently appears to
them to be the better road to the promotion and protection of their
welfare. And once they have made their decision in that respect,
whether sophisticatedly or crudely, whether in legal form or otherwise,
certainly, there can be no court or power on earth that can reverse
them.
I would not be human if I should be insensitive to the passionate and
eloquent appeals of Counsels Tañada and Salonga that these cases
be decided on the basis of conscience. That is exactly what I am doing.
But if counsel mean that only by granting their petitions can this Court
be worthily the bulwark of the people's faith in the government, I cannot
agree, albeit my admiration and respect are all theirs for their zeal and
tenacity, their industry and wisdom, their patriotism and devotion to
principle. Verily, they have brought out everything in the Filipino that
these cases demand.
140
In times of national emergencies and crises, not arising from foreign
invasion, we need not fear playing opposite roles, as long as we are all
animated by sincere love of country and aim exclusively at the
attainment of the national destiny. Our heroes of the past, Rizal,
Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our
patriots of the recent generations, Quezon, Osmeña, Roxas, Laurel
and Recto, to mention only some of them, had their differences of
views — and they did not hesitate to take diametrically opposing sides
— that even reached tragic proportions, but all of them are admired
and venerated.
It is my faith that to act with absolute loyalty to our country and people
is more important than loyalty to any particular precept or provision of
the Constitution or to the Constitution itself. My oath to abide by the
Constitution binds me to whatever course of action I feel sincerely is
demanded by the welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national
unity. May God grant that the controversies the events leading to these
cases have entail will heal after the decision herein is promulgated, so
that all us Filipinos may forever join hands in the pursuit of our national
destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions
for mandamus and prohibition without costs.
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution
prescribes a procedure for the ratification of constitutional amendments
or of a new Constitution and that such procedure was no complied
with, the validity of Presidential Proclamation No. 1102 is a political, not
a justiciable, issue; for it is inseparably or inextricably link with and
strikes at, because it is decisive of, the validity of ratification and
adoption of, as well as acquiescence of people in, the 1973
Constitution and the legitimacy of the government organized and
operating thereunder. And being political, it is beyond the ambit of
enunciated in Tañada, et. al. vs. Cuenco, et al. (103 Phil. 1051), aside
from the fact the this view will not do violence to rights vested under
the new Constitution, to international commitments forged pursuant
thereto and to decisions rendered by the judicial as well as quasi-
judicial tribunals organized and functioning or whose jurisdiction has
been altered by the 1973 Constitution and the government established
thereunder, and will dissipate any confusion in the minds of the
citizenry, who have been obeying the mandates of the new
Constitution, as well as exercising the rights and performing the
obligations defined by the new Constitution, and decrees and orders
issued in implementation of the same and cooperating with the
administration in the renovation of our social, economic and political
system as re-structured by the 1973 Constitution and by the
implementing decrees and orders (see Miller vs. Johnson, 18 SW 522,
522-526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice,
in behalf of the Court, defined a political question as one which, under
the Constitution, is "to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority had been
delegated to the Legislature or Executive branch of the government."
(Tañada, et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall
be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the
people for ratification." Under Article XV of the 1935 Constitution, the
power to propose constitutional amendments is vested in Congress or
in a constitutional convention; while the power to ratify or reject such
proposed amendments or new Constitution is reserved by the
sovereign people. The nullification of Proclamation No. 1102 would
inevitably render inoperative the 1973 Constitution, which is in fact the
express prayer of the petitioners in G.R. No. L-36164. Regardless of
the modality of submission or ratification or adoption — even if it
deviates from or violates the procedure delineated therefore by the old
Constitution — once the new Constitution is ratified, adopted and/or
acquiesced in by the people or ratified even by a body or agency not
duly authorized therefor but is subsequently adopted or recognized by
the people and by the other official organs and functionaries of the
government established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification, adoption or
acquiescence and of the consequent effectivity of the new Constitution.
This is as it should be in a democracy, for the people are the repository
of all sovereign powers as well as the source of all governmental
authority (Pole vs. Gray, 104 SO 2nd 841 [1958]). This basic
democratic concept is expressly restated in Section 1 of Article II of the
Declaration of Principles of the 1935 and 1973 Constitutions, thus:
"Sovereignty resides in the people and all government authority
emanates from them."
The legality of the submission is no longer relevant; because the
ratification, adoption and/or acquiescence by the people cures any
infirmity in its submission or any other irregularities therein which are
deemed mandatory before submission as they are considered merely
directory after such ratification or adoption or acquiescence by the
people. As Mr. Justice Brewer, then of the Kansas State Supreme
Court and later Associate Justice of the Federal Supreme Court, stated
in re Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint
499, 506): "The two important, vital elements of the Legislature and a
majority of the popular vote. Beyond these, other provisions are mere
machineries and forms. They may not be disregarded, because by
them certainty as to the essentials is secured. But they are not
themselves the essentials." (Cited in Larken vs. Gronna, 285 NW 59,
61-64, 1939).
This was the ruling by the American Supreme Court in the 1939 case
of Coleman vs. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief
Justice Hughes, speaking for the majority, stated that:
... Thus the political departments of the government dealt with the
effect of both previous rejection and attempted withdrawal and
determined that both were ineffectual in the presence of an actual
ratification ... . This decision by the political departments of the
Government as to the validity of the adoption of the Fourteenth
amendment has been accepted.
We think that in accordance with this historic precedent the question of
the efficacy of ratifications by state legislatures, in the light of previous
rejection or attempted withdrawal, should be regarded as a political
question pertaining to the political departments, with the ultimate
authority in the Congress in the exercise of its control over the
promulgation of the adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his
concurring opinion, in which Mr. Justices Roberts, Frankfurter, and
Douglas join, thus:
The Constitution grants Congress exclusive power to control
submission of constitutional amendments. Final determination by
Congress that ratification by three-fourths of the States has taken place
"is conclusive upon the courts." In the exercise of that power,
Congress, of course, is governed by the Constitution. However,
whether submission, intervening procedure or Congressional
determination of ratification conforms to the commands of the
Constitution, calls for decisions by a "political department" of questions
of a type which this Court has frequently designated "political." And
decision of a "political question" by the "political department" to which
the Constitution has committed it "conclusively binds the judges, as
well as all other officers, citizens and subjects of...government."
Proclamation under authority of Congress that an amendment has
been ratified will carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution commands. Upon this
assurance a proclaimed amendment must be accepted as a part of the
Constitution, leaving to the judiciary its traditional authority of
interpretation. To the extent that the Court's opinion in the present case
even impliedly assumes a power to make judicial interpretation of the
exclusive constitutional authority of Congress over submission and
ratification of amendments, we are unable to agree... (American
Constitutional Issues, by Pritchett, 1962 Ed., p. 44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted
by Our Supreme Court in toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov.
29, 1967, 21 SCRA 774) and Tolentino vs. Comelec, et al. (L-34150,
Oct. 16, 1971, 41 SCRA 702) on which petitioners place great reliance
— that the courts may review the propriety of a submission of a
proposed constitutional amendment before the ratification or adoption
of such proposed amendment by the sovereign people, hardly applies
to the cases at bar; because the issue involved in the aforesaid cases
refers to only the propriety of the submission of a proposed
constitutional amendment to the people for ratification, unlike the
present petitions, which challenge inevitably the validity of the 1973
Constitution after its ratification or adoption thru acquiescence by the
sovereign people. As heretofore stated, it is specious and pure
sophistry to advance the reasoning that the present petitions pray only
for the nullification of the 1973 Constitution and the government
operating thereunder.
It should be stressed that even in the Gonzales case, supra, We held
that:
Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative
powers to Congress. It is part of the inherent powers of the people —
as the repository of sovereignty in a republican state, such as ours —
to make, and hence, to amend their own Fundamental Law. Congress
may propose amendments to the same explicitly grants such power.
Hence, when exercising the same, it is said that Senators and
Members of the House of Representatives act, not as members, but as
component elements of a constituent assembly. When acting as such,
the members of Congress derive their authority from the Constitution,
unlike the people, when performing the same function, for their
authority does not emanate from the Constitution — they are the very
source of all powers of government, including the Constitution itself.
(21 SCRA 787)
141
We did not categorically and entirely overturn the doctrine in Mabanag
vs. Lopez Vito (78 Phil. 1) that both the proposal to amend and the
ratification of such a constitutional amendment are political in nature
forming as they do the essential parts of one political scheme — the
amending process. WE merely stated therein that the force of the
ruling in the said case of Mabanag vs. Lopez Vito has been weakened
by subsequent cases. Thus, We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the
issue submitted thereto as a political one, declined to pass upon the
question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution — which was being
submitted to the people for ratification — satisfied the three fourths
vote requirement of the fundamental law. The force of this precedent
has been weakened, however, by Suanes vs. Chief Accountant of the
Senate, Avelino vs. Cuenco, Tañada vs. Cuenco and Macias vs.
Commission on Elections. In the first, we held the officers and
employees of the Senate Electoral Tribunal are supervision and
control, not of that of the Senate President, claimed by the latter; in the
second, this Court proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third we nullified the
election, by Senators belonging to the party having the largest number
of votes in said chamber purporting to act on behalf of the party having
the second largest number of votes therein, of two (2) Senators
belonging to the first party, as members, for the second party, of the
Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the
representative districts for the House of Representatives, upon the
ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus we
rejected the theory advanced in these four (4) cases, that the issues
therein raised were political questions the determination of which is
beyond judicial review. (21 SCRA pp. 785-786);
for which reason We concluded
In short, the issue whether or not a resolution of Congress before
acting as a constituent assembly — violates the Constitution is
essentially justiciable, not political, and, hence, subject to judicial
review, and to the extent that this view may be inconsistent with the
stand taken in Mabanag vs. Lopez Vito, the latter should be deemed
modified accordingly. (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements
(41 SCRA 703-714).
The inevitable consequence therefore is that the validity of the
ratification or adoption of or acquiescence by the people in the 1973
Constitution, remains a political issue removed from the jurisdiction of
this Court to review.
One more word about the Gonzales and Tolentino cases. Both
primarily stressed on the impropriety of the submission of a proposed
constitutional amendment. Courts do not deal with propriety or wisdom
or absence of either of an official act or of a law. Judicial power
concerns only with the legality or illegality, constitutionality or
unconstitutionality of an act: it inquires into the existence of power or
lack of it. Judicial wisdom is not to be pitted against the wisdom of the
political department of the government.
The classic example of an illegal submission that did not impair the
validity of the ratification or adoption of a new Constitution is the case
of the Federal Constitution of the United States. It should be recalled
that the thirteen (13) original states of the American Union — which
succeeded in liberating themselves from England after the revolution
which began on April 19, 1775 with the skirmish at Lexington,
Massachusetts and ended with the surrender of General Cornwallis at
Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I,
1933 Ed., p. 776) — adopted their Articles of Confederation and
Perpetual Union, that was written from 1776 to 1777 and ratified on
March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six
thereafter, the Congress of the Confederation passed a resolution on
February 21, 1787 calling for a Federal Constitutional Convention "for
the sole and express purpose of revising the articles of confederation
... ." (Appendix I, Federalist, Modern Library ed., p. 577, emphasis
supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII
of the Articles of Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed in every
state, and the union shall be perpetual; nor shall any alterations at any
time hereafter be made in any of them; unless such alteration be
agreed to in a congress of the united states, and be afterwards
confirmed by the legislatures of every state. (See the Federalist,
Appendix II, Modern Library Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of
Confederation and Perpetual Union for the alteration for the ratification
of the Federal Constitution as drafted by the Philadelphia Convention
were not followed. Fearful the said Federal Constitution would not be
ratified by the legislatures as prescribed, the Philadelphia Convention
adopted a resolution requesting the Congress of the Confederation to
pass a resolution providing that the Constitution should be submitted to
elected state conventions and if ratified by the conventions in nine (9)
states, not necessarily in all thirteen (13) states, the said Constitution
shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University
recorded that:
It would have been a counsel of perfection to consign the new
constitution to the tender mercies of the legislatures of each and all of
the 13 states. Experience clearly indicated that ratification then would
have had the same chance as the scriptural camel passing through the
eye of a needle. It was therefore determined to recommend to
Congress that the new Constitution be submitted to conventions in the
several states especially elected to pass upon it and that, furthermore,
the new government should go into effect if and when it should be
ratified by nine of the thirteen states ... . (The Federalist, Modern
Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix;
emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians
would be Antifederalist, provided for ratification of the Constitution by
popularly elected conventions in each state. Suspecting that Rhode
Island, at least, would prove recalcitrant, it declared that the
Constitution would go into effect as soon as nine states ratified. The
convention method had the further advantage that judges, ministers,
and others ineligible to state legislatures, could be elected to a
convention. The nine-state provision was, of course, mildly
revolutionary. But the Congress of the Confederation, still sitting in
New York to carry on federal government until relieved, formally
submitted the new constitution to the states and politely faded out
before the first presidential inauguration. (The Oxford History of the
Am. People, by Samuel Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on
June 21, 1788 and by the last four states on May 29, 1790 (12 C.J. p.
679 footnote, 16 C.J.S., 27. — by the state conventions and not by all
thirteen (13) state legislatures as required by Article XIII of the Articles
of Confederation and Perpetual Union aforequoted — and in spite of
the fact that the Federal Constitution as originally adopted suffers from
two basic infirmities, namely, the absence of a bill of Rights and of a
provision affirming the power of judicial review.
The liberties of the American people were guaranteed by subsequent
amendments to the Federal Constitution. The doctrine of judicial review
has become part of American constitutional law only by virtue of a
judicial pronouncement by Chief Justice Marshall in the case of
Marbury vs. Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of
the ratification of the American Constitution, nor against the legitimacy
of the government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322,
326-330), which enunciated the principle that the validity of a new or
revised Constitution does not depend on the method of its submission
or ratification by the people, but on the fact or fiat or approval or
adoption or acquiescence by the people which fact of ratification or
adoption or acquiescence is all that is essential, the Court cited
precisely the case of the irregular revision and ratification by state
conventions of the Federal Constitution, thus:
No case identical in its facts with the case now under consideration has
been called to our attention, and we have found none. We think that
the principle which we apply in the instant case was very clearly
applied in the creation of the constitution of the United States. The
convention created by a resolution of Congress had authority to do one
thing, and one only, to wit, amend the articles of confederation. This
they did not do, but submitted to the sovereign power, the people, a
new constitution. In this manner was the constitution of the United
States submitted to the people and it became operative as the organic
law of this nation when it had been properly adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the convention that
formulated the constitution of the United States, has this to say: "The
convention proceeded to do, and did accomplish, what they were not
authorized to do by a resolution of Congress that called them together.
That resolution plainly contemplated amendments to the articles of
confederation, to be submitted to and passed by the Congress, and
afterwards ratified by all the State legislatures, in the manner pointed
out by the existing organic law. But the convention soon became
convinced that any amendments were powerless to effect a cure; that
the disease was too deeply seated to be reached such tentative
means. They saw that the system they were called to improve must be
totally abandoned, and that the national idea must be re-established at
the center of their political society. It was objected by some members,
that they had no power, no authority, to construct a new government.
They had no authority, if their decisions were to be final; and no
authority whatsoever, under the articles of confederation, to adopt the
course they did. But they knew that their labors were only to be
suggestions; and that they as well as any private individuals, and any
142
private individuals as well as they, had a right to propose a plan of
government to the people for their adoption. They were, in fact, a mere
assemblage of private citizens, and their work had no more binding
sanction than a constitution drafted by Mr. Hamilton in his office would
have had. The people, by their expressed will, transformed this
suggestion, this proposal, into an organic law, and the people might
have done the same with a constitution submitted to them by a single
citizen."
xxx xxx xxx
... When the people adopt a completely revised or new constitution, the
framing or submission of the instrument is not what gives it binding
force and effect. The fiat of the people and only the fiat of the people,
can breathe life into a constitution.
xxx xxx xxx
... We do not hesitate to say that a court is never justified in placing by
implication a limitation upon the sovereign. This would be an
authorized exercise of sovereign power by the court. In State v. Swift,
69 Ind. 505, 519, the Indiana Supreme Court said: "The people of a
State may form an original constitution, or abrogate an old one and
form a new one, at any time, without any political restriction except the
constitution of the United States; ... ." (37 SE 327-328, 329, emphasis
supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to pass upon this question,
and were compelled to hold that the act of February 23, 1887, is
unconstitutional and void, it would not, in our opinion, by any means
follow that the amendment is not a part of our state Constitution. In the
recent case of Taylor vs. Commonwealth (Va.) 44 S.E. 754, the
Supreme Court of Virginia hold that their state Constitution of 1902,
having been acknowledged and accepted by the officers administering
the state government, and by the people, and being in force without
opposition, must be regarded as an existing Constitution irrespective of
the question as to whether or not the convention which promulgated it
had authority so to do without submitting it to a vote of the people. In
Brittle v. People, 2 Neb. 198, is a similar holding as to certain
provisions of the Nebraska Constitution of 1886, which were added by
the Legislature at the requirement of Congress, though never
submitted to the people for their approval." (97 NW 349-350; emphasis
supplied).
Against the decision in the Wheeler case, supra, confirming the validity
of the ratification and adoption of the American Constitution, in spite of
the fact that such ratification was in clear violation of the prescription
on alteration and ratification of the Articles of Confederation and
Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most
significant historical fact by calling the Federal Constitution of the
United States as a revolutionary one, invoking the opinion expressed in
Vol. 16, Corpus Juris Secundum, p. 27, that it was a revolutionary
constitution because it did not obey the requirement that the Articles of
Confederation and Perpetual Union can be amended only with the
consent of all thirteen (13) state legislatures. This opinion does not cite
any decided case, but merely refers to the footnotes on the brief
historic account of the United States Constitution on p. 679 of Vol. 12,
CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316
of the Oxford History of the American People, 1965 Ed. by Samuel
Eliot Morison, who discusses the Articles of Confederation and
Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution
Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative
Period in Politics, 1785-1788," Professor Morison delineates the
genesis of the Federal Constitution, but does not refer to it even
implicitly as revolutionary constitution (pp. 297-316). However, the
Federal Constitution may be considered revolutionary from the view
point of McIver if the term revolution is understood in "its wider sense
to embrace decisive changes in the character of government, even
though they do not involve the violent overthrow of an established
order, ... ." (R.M. MacIver, The Web of Government, 1965 ed., p. 203).
It is rather ridiculous to refer to the American Constitution as a
revolutionary constitution. The Articles of Confederation and Perpetual
Union that was in force from July 12, 1776 to 1788, forged as it was
during the war of independence was a revolutionary constitution of the
thirteen (13) states. In the existing Federal Constitution of the United
States which was adopted seven (7) or nine (9) years after the thirteen
(13) states won their independence and long after popular support for
the government of the Confederation had stabilized was not a product
of a revolution. The Federal Constitution was a "creation of the brain
and purpose of man" in an era of peace. It can only be considered
revolutionary in the sense that it is a radical departure from its
predecessor, the Articles of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the
United States is not the successor to the Articles of Confederation and
Perpetual Union. The fallacy of the statement is so obvious that no
further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No.
1102 strikes at the validity and enforceability of the 1973 Constitution
and of the government established and operating thereunder.
Petitioners pray for a declaration that the 1973 Constitution is
inoperative (L-36164). If Proclamation No. 1102 is nullified, then there
is no valid ratification of the 1973 Constitution and the inevitable
conclusion is that the government organized and functioning
thereunder is not a legitimate government.
That the issue of the legitimacy of a government is likewise political
and not justiciable, had long been decided as early as the 1849 case of
Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case
of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-
enunciated in 1912 in the case of Pacific States Telephone and
Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56 L.ed. 377-
386). Because it reaffirmed the pronouncements in both Borden and
Beckham cases, it is sufficient for us to quote the decision in Pacific
States Telephone and Telegraph Co., supra, penned by Mr. Chief
Justice White, who re-stated:
In view of the importance of the subject, the apparent misapprehension
on one side and seeming misconception on the other, suggested by
the argument as to the full significance of the previous doctrine, we do
not content ourselves with a mere citation of the cases, but state more
at length than we otherwise would the issues and the doctrine
expounded in the leading and absolutely controlling case — Luther v.
Borden, 7 How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this inquiry, proposed by
the plaintiff, and it should be decided that the character government
had no legal existence during the period of time above mentioned, — if
it had been annulled by the adoption of the opposing government, —
then the laws passed by its legislature during that time were nullities;
its taxes wrongfully collected, its salaries and compensations to its
officers illegally paid ; its public accounts improperly settled and the
judgments and sentences of its courts in civil and criminal cases null
and void, and the officers who carried their decisions into operation
answerable as trespassers, if not in some cases as criminals."
xxx xxx xxx
"The fourth section of the fourth article of the Constitution of the United
States shall guarantee to every state in the Union a republican form of
government, and shall protect each of them against invasion; and on
the application of the Legislature or of the Executive (when the
legislature cannot be convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide
what government is established one in a state. For, as the United State
guarantee to each state a republican government, Congress must
necessarily decide what government is established in the state before
it can determine whether it is republican or not. And when the senators
and representatives of a state are admitted into the Councils of the
Union, the authority of the government under which they were
appointed, as well as its republican character, is recognized by the
proper constitutional authority. And its decision is binding on every
other department of the government, and could not be questioned in a
judicial tribunal. It is true that the contest in this case did not last long
enough to bring the matter to this issue; and as no senators or
representatives were elected under the authority of the government of
which Mr. Dorr was the head, Congress was not called upon to decide
the controversy. Yet the right to decide is placed there and not in the
courts."
xxx xxx xxx
... We do not stop to cite other cases which indirectly or incidentally
refer to the subject, but conclude by directing attention to the statement
by the court, speaking through Mr. Chief Justice Fuller, in Taylor vs.
Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009,
where, after disposing of a contention made concerning the 14th
Amendment, and coming to consider a proposition which was
necessary to be decided concerning the nature and effect of the
guaranty of S 4 of article 4, it was said (p. 578):
"But it is said that the 14th Amendment must be read with S 4 of article
4, of the Constitution, providing that the United States shall guarantee
to every state in this Union a republican form of government, and shall
protect each of them against invasion; and on application of the
legislature, or the Executive (when the legislature cannot be
convened), against domestic violence."
xxx xxx xxx
"It was long ago settled that the enforcement of this guaranty belonged
to the political department. Luther v. Borden, 7 How. 1, 12 L.ed. 581. In
that case it was held that the question, which of the two opposing
governments of Rhode Island, namely, the charter government or the
government established by a voluntary convention, was the legitimate
one, was a question for the determination of the political department;
143
and when that department had decided, the courts were bound to take
notice of the decision and follow it."
xxx xxx xxx
As the issues presented, in their very essence, are, and have long
since by this Court been, definitely determined to be political and
governmental, and embraced within the scope of the scope of the
powers conferred upon Congress, and not, therefore within the reach
of judicial power, it follows that the case presented is not within our
jurisdiction, and the writ of error must therefore be, and it is, dismissed
for want of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the
Constitutional Convention without authority therefor and without
submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and other
government functionaries, as well as by the people. In the 1903 case of
Taylor vs. Commonwealth (44 SE 754-755), the Court ruled:
The sole ground urged in support of the contention that Constitution
proclaimed in 1902 is invalid is that it was ordained and promulgated
by the convention without being submitted for ratification or rejection by
the people of the commonwealth.
The Constitution of 1902 was ordained and proclaimed by convention
duly called by direct vote of the people of the state to revise and
amend the Constitution of 1869. The result of the work that the
convention has been recognized, accepted, and acted upon as the
only valid Constitution of the state by the Governor in swearing fidelity
to it and proclaiming it, as directed thereby; by the Legislature in its
formal official act adopting a joint resolution, July 15, 1902, recognizing
the Constitution ordained by the convention which assembled in the
city of Richmond on the 12th day of June 1901, as the Constitution of
Virginia; by the individual oaths of members to support it, and by its
having been engaged for nearly a year in legislating under it and
putting its provisions into operation but the judiciary in taking the oath
prescribed thereby to support and by enforcing its provisions; and by
the people in their primary capacity by peacefully accepting it and
acquiescing in it, registering as voters under it to the extent of
thousands through the state, and by voting, under its provisions, at a
general election for their representatives in the Congress of the United
States. (p. 755).
The Court in the Taylor case above-mentioned further said:
While constitutional procedure for adoption or proposal to amend the
constitution must be duly followed, without omitting any requisite steps,
courts should uphold amendment, unless satisfied that the Constitution
was violated in submitting the proposal. ... Substance more than form
must be regarded in considering whether the complete constitutional
system for submitting the proposal to amend the constitution was
observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court
stated:
There may be technical error in the manner in which a proposed
amendment is adopted, or in its advertisement, yet, if followed,
unobjected to, by approval of the electors, it becomes part of the
Constitution. Legal complaints to the submission may be made prior to
taking the vote, but, if once sanctioned, the amendment is embodied
therein, and cannot be attacked, either directly or collaterally, because
of any mistake antecedent thereto. Even though it be submitted at an
improper time, it is effective for all purposes when accepted by the
majority. Armstrong v. King, 281 Pa. 207, 126 A. 263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority,
such act becomes valid upon ratification or adoption or acquiescence
by the people. Thus, in the 1905 case of Ex parte Birmingham and
A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court
upheld this principle and stated that: "The authorities are almost
uniform that this ratification of an unauthorized act by the people (and
the people are the principal in this instance) renders the act valid and
binding."
It has likewise been held that it is not necessary that voters ratifying the
new Constitution are registered in the book of voters; it is enough that
they are electors voting on the new Constitution. (Bott vs. Wurts, 40 A
740 [1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370,
375), the Supreme Court of Wisconsin ruled that "irregularity in the
procedure for the submission of the proposed constitutional
amendment will not defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd
769), the Alabama Supreme Court pronounced that "the irregularity in
failing to publish the proposed constitutional amendment once in each
of the 4 calendar weeks next preceding the calendar week in which the
election was held or once in each of the 7-day periods immediately
preceding the day of the election as required by the Constitution, did
not invalidate the amendment which was ratified by the people."

The same principle was reiterated in 1961 by the Mississippi Supreme
Court in Barnes, et al. v. Ladner (131) SO 2nd 45 462), where they
admitted irregularities or illegalities committed in the procedure for
submission of the proposed constitutional amendment to the people for
ratification consisted of: "(a) the alleged failure of the county election
commissioners of the several counties to provide a sufficient number of
ballot boxes 'secured by good and substantial locks,' as provided by
Section 3249, Code of 1942, Rec., to be used in the holding of the
special election on the constitutional amendment, and (b) the alleged
failure of the State Election Commissioners to comply with the
requirements of Code Sections 3204 and 3205 in the appointment of
election commissioners in each of the 82 counties. The irregularities
complained of, even if proved, were not such irregularities would have
invalidated the election." (Emphasis supplied; see also Sylvester vs.
Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the
Constitutional Convention and during the deliberations of the
Constitutional Convention from June 1, 1971 until martial law was
proclaimed on Sept. 21, 1972, the salient reforms contained in the
1973 Constitution which have long been desired by the people, had
been thoroughly discussed in the various committees of the
Constitutional Convention, on the floor of the Convention itself, in civic
forums and in all the media of information. Many of the decrees
promulgated by the Chief Executive from Sept. 22, 1972 to Jan. 17,
1973 implement some of the reforms and had been ratified in Sec. 3(2)
of Article XVII of the 1973 Constitution.
Petitioners cannot safely state that during martial law the majority of
the people cannot freely vote for these reforms and are not complying
with the implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had
free elections in 1951 and 1971 when the opposition won six out of
eight senatorial seats despite the suspension of the privileges of the
writ of habeas corpus (see Lansang vs. Garcia, et al., Dec. 14, 1971,
42 SCRA 448), which suspension implies constraint on individual
freedom as the proclamation of martial law. In both situations, there is
no total blackout of human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or
Liberals, as well as officials of the Legislative and Executive branches
of the government elected and/or appointed under the 1935
Constitution have either recognized or are now functioning under the
1973 Constitution, aside from the fact of its ratification by the sovereign
people through the Citizens Assemblies. Ninety-five (95) of a total of
one hundred ten (110) members of the House of Representatives
including the Speaker and the Speaker Pro Tempore as well as about
eleven (11) Congressmen who belong to the Liberal Party and fifteen
(15) of a total of twenty-four (24) senators including Liberal senators
Edgar U. Ilarde and John Osmeña opted to serve in the Interim
Assembly, according to the certification of the Commission on
Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated
Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-
36165 close their eyes to a fait accompli. All the other functionaries
recognize the new government and are performing their duties and
exercising their powers under the 1973 Constitution, including the
lower courts. The civil courts, military tribunals and quasi-judicial
bodies created by presidential decrees have decided some criminal,
civil and administrative cases pursuant to such decrees. The foreign
ambassadors who were accredited to the Republic of the Philippines
before martial law continue to serve as such in our country; while two
new ambassadors have been accepted by the Philippines after the
ratification of the 1973 Constitution on January 17, 1973. Copies of the
1973 Constitution had been furnished the United Nations Organization
and practically all the other countries with which the Philippines has
diplomatic relations. No adverse reaction from the United Nations or
from the foreign states has been manifested. On the contrary, our
permanent delegate to the United Nations Organization and our
diplomatic representatives abroad appointed before martial law
continue to remain in their posts and are performing their functions as
such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions
of the 1973 Constitution by requiring all election registrars to register
18-year olds and above whether literates or not, who are qualified
electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of
Annex A to Notes of respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973
Constitution and the government which is enforcing the same for over
10 weeks now With the petitioners herein, secessionists, rebels and
subversives as the only possible exceptions, the rest of the citizenry
are complying with decrees, orders and circulars issued by the
incumbent President implementing the 1973 Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18
SW 522:
If a set of men, not selected by the people according to the forms of
law, were to formulate an instrument and declare it the constitution, it
would undoubtedly be the duty of the courts declare its work a nullity.
144
This would be revolution, and this the courts of the existing government
must resist until they are overturned by power, and a new government
established. The convention, however, was the offspring of law. The
instrument which we are asked to declare invalid as a constitution has
been made and promulgated according to the forms of law. It is a
matter of current history that both the executive and legislative
branches of the government have recognized its validity as a
constitution, and are now daily doing so. Is the question, therefore, one
of a judicial character? It is our undoubted duty, if a statute be
unconstitutional to so declare it; also, if a provision of the state
constitution be in conflict with the federal constitution, to hold the
former invalid. But this is a very different case. It may be said,
however, that, for every violation of or non-compliance with the law,
there should be a remedy in the courts. This is not, however, always
the case. For instance, the power of a court as to the acts of the other
departments of the government is not an absolute one, but merely to
determine whether they have kept within constitutional limits, it is a
duty rather than a power, The judiciary cannot compel a co-equal
department to perform a duty. It is responsible to the people; but if it
does act, then, when the question is properly presented, it is the duty
of the court to say whether it has conformed to the organic law. While
the judiciary should protect the rights of the people with great care and
jealousy, because this is its duty, and also because, in times of great
popular excitement, it is usually their last resort, yet it should at the
same time be careful to overstep the proper bounds of its power, as
being perhaps equally dangerous; and especially where such
momentous results might follow as would be likely in this instance, if
the power of the judiciary permitted, and its duty required, the
overthrow of the work of the convention.
After the American Revolution the state of Rhode Island retained its
colonial character as its constitution, and no law existed providing for
the making of a new one. In 1841 public meetings were held, resulting
in the election of a convention to form a new one, — to be submitted to
a popular vote. The convention framed one, submitted it to a vote, and
declared it adopted. Elections were held for state officers, who
proceeded to organize a new government. The charter government did
not acquiesce in these proceedings, and finally declared the state
under martial law. It called another convention, which in 1843 formed a
new constitution. Whether the charter government, or the one
established by the voluntary convention, was the legitimate one, was
uniformly held by the courts of the state not to be a judicial, but a
political question; and the political department having recognized the
one, it was held to be the duty of the judiciary to follow its decision. The
supreme court of the United States, in Luther v. Borden, 7 How. 1,
while not expressly deciding the principle, as it held the federal court,
yet in the argument approves it, and in substance says that where the
political department has decided such a matter the judiciary should
abide by it.
Let us illustrate the difficulty of a court deciding the question: Suppose
this court were to hold that the convention, when it reassembled, had
no power to make any material amendment, and that such as were
made are void by reason of the people having theretofore approved the
instrument. Then, next, this court must determine what amendments
were material; and we find the court, in effect, making a constitution.
This would be arrogating sovereignty to itself. Perhaps the members of
the court might differ as to what amendments are material, and the
result would be confusion and anarchy. One judge might say that all
the amendments, material and immaterial, were void; another, that the
convention had then the implied power to correct palpable errors, and
then the court might differ as to what amendments are material. If the
instrument as ratified by the people could not be corrected or altered at
all, or if the court must determine what changes were material, then the
instrument, as passed upon by the people or as fixed by the court
would be lacking a promulgation by the convention; and, if this be
essential, then the question would arise, what constitution are we now
living under, and what is the organic law of the state? A suggestion of
these matters shows what endless confusion and harm to the state
might and likely would arise. If, through error of opinion, the convention
exceeded its power, and the people are dissatisfied, they have ample
remedy, without the judiciary being asked to overstep the proper limits
of its power. The instrument provides for amendment and change. If a
wrong has been done, it can, in the proper way in which it should be
remedied, is by the people acting as a body politic. It is not a question
of whether merely an amendment to a constitution, made without
calling a convention, has been adopted, as required by that
constitution. If it provides how it is to be done, then, unless the manner
be followed, the judiciary, as the interpreter of that constitution, will
declare the amendment invalid. Koehler v. Hill, 60 Iowa, 543, 14 N.W.
Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391, 12 Pac.
Rep. 835. But it is a case where a new constitution has been formed
and promulgated according to the forms of law. Great interests have
already arisen under it; important rights exist by virtue of it; persons
have been convicted of the highest crime known to the law, according
to its provisions; the political power of the government has in many
ways recognized it; and, under such circumstances, it is our duty to
treat and regard it as a valid constitution, and now the organic law of
our commonwealth.
We need not consider the validity of the amendments made after the
convention reassembled. If the making of them was in excess of its
powers, yet, as the entire instrument has been recognized as valid in
the manner suggested, it would be equally an abuse of power by the
judiciary and violative of the rights of the people, — who can and
properly should remedy the matter, if not to their liking, — if it were to
declare the instrument of a portion invalid, and bring confusion and
anarchy upon the state. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and
consequently of the adoption of the 1973 Constitution it would be
exercising a veto power on the act of the sovereign people, of whom
this Court is merely an agent, which to say the least, would be
anomalous. This Court cannot dictate to our principal, the sovereign
people, as to how the approval of the new Constitution should be
manifested or expressed. The sovereign people have spoken and we
must abide by their decision, regardless of our notion as to what is the
proper method of giving assent to the new Charter. In this respect, WE
cannot presume to know better than the incumbent Chief Executive,
who, unlike the members of this Court, only last January 8, 1973, We
affirmed in Osmeña vs. Marcos (Pres. Election Contest No. 3, Jan. 8,
1973), was re-elected by the vote of over 5 million electors in 1969 for
another term of four years until noon of December 30, 1973 under the
1935 Constitution. This Court, not having a similar mandate by direct
fiat from the sovereign people, to execute the law and administer the
affairs of government, must restrain its enthusiasm to sally forth into
the domain of political action expressly and exclusively reserved by the
sovereign people themselves.
The people in Article XV of the 1935 Constitution did not intend to tie
their hands to a specific procedure for popular ratification of their
organic law. That would be incompatible with their sovereign character
of which We are reminded by Section 1, of Article II of both the 1935
and the 1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign
people cannot violate the procedure for ratification which they
themselves define in their Constitution, cannot apply to a unitary state
like the Republic of the Philippines. His opinion expressed in 1868 may
apply to a Federal State like the United States, in order to secure and
preserve the existence of the Federal Republic of the United States
against any radical innovation initiated by the citizens of the fifty (50)
different states of the American Union, which states may be jealous of
the powers of the Federal government presently granted by the
American Constitution. This dangerous possibility does not obtain in
the case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868
when he wrote his opus "Constitutional Limitations." * (Vol. 6,
Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were he
live today, in a milieu vastly different from 1868 to 1898, he might have
altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by
the President in Proclamation No. 1102 that the people through their
Citizens' Assemblies had overwhelmingly approved the new
Constitution due regard to a separate, coordinate and co-equal branch
of the government demands adherence to the presumption of
correctness of the President's declaration. Such presumption is
accorded under the law and jurisprudence to officials in the lower
levels of the Executive branch, there is no over-riding reason to deny
the same to the Chief of State as head of the Executive Branch. WE
cannot reverse the rule on presumptions, without being presumptuous,
in the face of the certifications by the Office the Secretary of the
Department of Local Government and Community Development.
(Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with
manifestation filed by the Solicitor General on behalf of the
respondents public officers dated March 7, 1973). There is nothing in
the records that contradicts, much less overthrow the results of the
referendum as certified. Much less are We justified in reversing the
burden of proof — by shifting it from the petitioners to the respondents.
Under the rules on pleadings, the petitioners have the duty to
demonstrate by clear and convincing evidence their claim that the
people did not ratify through the Citizens' Assemblies nor adopt by
acquiescence the 1973 Constitution. And have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by
the cases at bar on the basis of reports relayed to him from private
sources which could be biased and hearsay, aside from the fact that
such reports are not contained in the record. Proclamation No. 1102 is
not just an ordinary act of the Chief Executive. It is a well-nigh solemn
declaration which announces the highest act of the sovereign people
— their imprimatur to the basic Charter that shall govern their lives
hereafter — may be for decades, if not for generations.
Petitioners decry that even 15-year olds, ex convicts and illiterates
were allowed to vote in the Citizens' Assemblies, despite their
admission that the term "Filipino people" in the preamble as well as
"people" in Sections 1 and 5 of Article II of the 1935 Constitution and in
Section 1(3) of Article III of the Bill of Rights includes all Filipino
citizens of all ages, of both sexes, whether literate or illiterate, whether
peaceful citizens, rebels, secessionists, convicts or ex-convicts.
Without admitting that ex-convicts voted in the referendum, about
which no proof was even offered, these sectors of our citizenry, whom
petitioners seem to regard with contempt or decision and whom
petitioners would deny their sovereign right to pass upon the basic
145
Charter that shall govern their lives and the lives of their progenies, are
entitled as much as the educated, the law abiding, and those who are
21 years of age or above to express their conformity or non conformity
to the proposed Constitution, because their stake under the new
Charter is not any less than the stake of the more fortunate among us.
As a matter of fact, these citizens, whose juridical personality or
capacity to act is limited by age, civil interdiction or ignorance deserve
more solicitude from the State than the rest of the citizenry. In the
ultimate analysis, the inclusion of those from 15 years up to below 21
years old, the ex-convicts and the ignorant, is more democratic as it
broadens the base of democracy and therefore more faithful to the
express affirmation in Section 1 of Article II of the Declaration of
Principles that "sovereignty resides in the people and all government
authority emanates from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote.
Not all ex-convicts are banned from voting. Only those who had been
sentenced to at least one year imprisonment are disenfranchised but
they recover their right of suffrage upon expiration of ten years after
service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore,
ex-convicts and imbeciles constitute a very negligible number in any
locality or barrio, including the localities of petitioners.
Included likewise in the delegated authority of the President, is the
prerogative to proclaim the results of the plebiscite or the voting the
Citizens' Assemblies. Petitioners deny the accuracy or correctness of
Proclamation No. 1102 that the 1973 Constitution was ratified by the
overwhelming vote of close to 15 million citizens because there was no
official certification to the results of the same from the Department of
Local Governments. But there was such certification as per Annex 1 to
1-A to the Notes submitted by the Solicitor General counsel for
respondents public officers. This should suffice to dispose of this point.
Even in the absence of such certification, in much the same way that in
passing law, Congress or the legislative body is presumed to be in
possession of the facts upon which such laws are predicated (Justice
Fernando, The Power of Judicial Review, 1967 Ed., pp. 112-11 citing
Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs.
Hartford, etc., [1931] 282 U.S. 251), it should likewise be presumed
that the President was in possession of the fact upon which
Proclamation No. 1102 was based. This presumption is further
strengthened by the fact that the Department of Local Governments,
the Department National Defense and the Philippine Constabulary as
well the Bureau of Posts are all under the President, which offices as
his alter ego, are presumptively acting for and in behalf of the
President and their acts are valid until disapproved or reprobated by
the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of
Interior, 67 Phil. 451). To deny the truth or the proclamation of the
President as to the overwhelming majority vote in the Citizens'
Assemblies in favor of the new Constitution, is to charge the President
with falsification, which is a most grievous accusation. Under the, rules
of pleadings and evidence, the petitioners have the burden of proof by
preponderance of evidence in civil cases and by proof beyond
reasonable doubt in criminal prosecutions, where the accused is
always presumed to be innocent. Must this constitutional right be
reversed simply because the petitioner all assert the contrary? Is the
rule of law they pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is
accorded by the law and jurisprudence to acts of public officers whose
category in the official hierarchy is very much lower than that of the
Chief of State. What reason is there to withhold such a presumption in
favor of the President? Does the fact that the President belong to the
party in power and that four (4) of the five (5) senators who are
petitioners in L-36165 belong to the opposition party, justify a
discrimination against the President in matters of this nature?
Unsupported as their word is by any credible and competent evidence
under the rules of evidence, must the word of the petitioners prevail
over that of the Chief Executive, because they happen to be former
senators and delegates to the Constitutional Convention? More than
any of the petitioners herein in all these cases, the incumbent
President realizes that he risks the wrath of his people being visited
upon him and the adverse or hostile verdict of history; because of the
restrictions on the civil liberties of his people, inevitable concomitants
of martial law, which necessarily entail some degree of sacrifice on the
part of the citizenry. Until the contrary is established or demonstrated,
herein petitioners should grant that the Chief Executive is motivated by
what is good for the security and stability of the country, for the
progress and happiness of the people. All the petitioners herein cannot
stand on the proposition that the rights under the 1935 Constitution are
absolute and invulnerable to limitations that may be needed for the
purpose of bringing about the reforms for which the petitioners pretend
to be clamoring for and in behalf of the people. The five (5) petitioners
in L-36165 and four (4) of the seven (7) petitioners in L-36164 were all
participants in the political drama of this country since 1946. They are
witness to the frustrations of well-meaning Presidents who wanted to
effect the reforms, especially for the benefit of the landless and the
laboring class — how politics and political bargaining had stymied the
effectuation of such reforms thru legislation. The eight (8) petitioners in
L-36164 and L-36165 may not have participated in the systematic
blocking of the desired reforms in Congress or outside of it; but the
question may be asked as to what exactly they did to support such
reforms. For the last seven (7) decades since the turn of the century,
for the last thirty-five (35) years since the establishment of the
Commonwealth government in 1935 and for the last twenty seven (27)
years since the inauguration of the Republic on July 4, 1946, no
tangible substantial reform had been effected, funded and seriously
implemented, despite the violent uprisings in the thirties, and from
1946 to 1952, and the violent demonstrations of recent memory.
Congress and the oligarchs acted like ostriches, "burying their heads in
timeless sand. "Now the hopes for the long-awaited reforms to be
within a year or to are brighter. It would seem therefore to the duty of
everyone including herein petitioners to give the present leadership the
opportunity to institute and carry out the needed reforms as provided
for in the new or 1973 Constitution and thru the means prescribed in
that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in
placing by implication a limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper
sphere and encroached upon the province exclusively reserved to and
by the sovereign people. This Court did not heed to the principle that
the courts are not the fountain of all remedies for all wrongs. WE
cannot presume that we alone can speak with wisdom as against the
judgment of the people on the basic instrument which affects their very
lives. WE cannot determine what is good for the people or ought to be
their fundamental law. WE can only exercise the power delegated to
Us by the sovereign people, to apply and interpret the Constitution and
the laws for the benefit of the people, not against them nor to prejudice
them. WE cannot perform an act inimical to the interest of Our
principal, who at any time may directly exercise their sovereign power
ratifying a new Constitution in the manner convenient to them.
It is pertinent to ask whether the present Supreme Court can function
under the 1935 Constitution without being a part of the government
established pursuant thereto. Unlike in the Borden case, supra, where
there was at least another government claiming to be the legitimate
organ of the state of Rhode Island (although only on paper as it had no
established organ except Dorr who represented himself to be its head;
in the cases at bar there is no other government distinct from and
maintaining a position against the existing government headed by the
incumbent Chief Executive. (See Taylor vs. Commonwealth, supra).
There is not even a rebel government duly organized as such even
only for domestic purposes, let alone a rebel government engaged in
international negotiations. As heretofore stated, both the executive
branch and the legislative branch established under the 1935
Constitution had been supplanted by the government functioning under
the 1973 Constitution as of January 17, 1973. The vice president
elected under the 1935 Constitution does not asset any claim to the
leadership of the Republic of the Philippines. Can this Supreme Court
legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant
in his appraisal of Chief Justice Roger Brooke Taney whom he calls
the "hero of the American Bar," because during the American civil war
he apparently had the courage to nullify the proclamation of President
Lincoln suspending the privileges of the writ of habeas corpus in Ex
parte Merryman (Federal Case No. 9487 [1861]). But who exactly was
Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of
the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657),
briefly recounts that he was born in 1777 in Calvert County, Maryland,
of parents who were landed aristocrats as well as slave owners.
Inheriting the traditional conservatism of his parents who belonged to
the landed aristocracy, Taney became a lawyer in 1799, practiced law
and was later appointed Attorney General of Maryland. He also was a
member of the Maryland state legislature for several terms. He was a
leader of the Federalist Party, which disintegrated after the war of
1812, compelling him to join the Democratic Party of Andrew Jackson,
also a slave owner and landed aristocrat, who later appointed him first
as Attorney General of the United States, then Secretary of the
Treasury and in 1836 Chief Justice of the United States Supreme
Court to succeed Chief Justice John Marshall, in which position he
continued for 28 years until he died on October 21, 1864. His death
"went largely unnoticed and unregretted." Because he himself was a
slave owner and a landed aristocrat, Chief Justice Taney sympathized
with the Southern States and, even while Chief Justice, hoped that the
Southern States would be allowed to secede peacefully from the
Union. That he had no sympathy for the Negroes was revealed by his
decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where he
pronounced that the American Negro is not entitled to the rights of an
American citizen and that his status as a slave is determined by his
returning to a slave state. One can therefore discern his hostility
towards President Lincoln when he decided Ex parte Merryman, which
animosity to say the least does no befit a judicial mind. Such a man
could hardly be spoken of as a hero of the American Bar, least of all of
the American nation. The choice of heroes should not be expressed
indiscriminately just to embellish one's rhetoric.
Distinguished counsel in L-36165 appears to have committed another
historical error, which may be due to his rhetorical in the Encyclopedia
Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the
contrary, Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 &
1969 eds., 732-733), refers to Marshal Henri Philippe Petain as the
genuine hero or "Savior of Verdun"; because he held Verdun against
the 1916 offensive of the German army at the cost of 350,000 of his
French soldiers, who were then demoralized and plotting mutiny.
146
Certainly, the surviving members of the family of Marshal Petain would
not relish the error. And neither would the members of the clan of
Marshal Foch acknowledge the undeserved accolade, although
Marshal Foch has a distinct place in history on his own merits. The
foregoing clarification is offered in the interest of true scholarship and
historical accuracy, so that the historians, researchers and students
may not be led astray or be confused by esteemed counsel's
eloquence and mastery of the spoken and written word as well as by
his eminence as law professor, author of law books, political leader,
and member of the newly integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-
36164 did not address likewise his challenge to the five (5) senators
who are petitioners in L-36165 to also act as "heroes and idealists," to
defy the President by holding sessions by themselves alone in a hotel
or in their houses if they can muster a quorum or by causing the arrest
of other senators to secure a quorum and thereafter remove
respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83
Phil. 17), if they believe most vehemently in the justice and correctness
of their position that the 1973 Constitution has not been validly ratified,
adopted or acquiesced in by the people since January 18, 1973 until
the present. The proclaimed conviction of petitioners in L-36165 on this
issue would have a ring of credibility, if they proceeded first to hold a
rump session outside the legislative building; because it is not
unreasonable to demand or to exact that he who exhorts others to be
brave must first demonstrate his own courage. Surely, they will not
affirm that the mere filing of their petition in L-36165 already made
them "heroes and idealists." The challenge likewise seems to insinuate
that the members of this Court who disagree with petitioners' views are
materialistic cowards or mercenary fence-sitters. The Court need not
be reminded of its solemn duty and how to perform it. WE refuse to
believe that petitioners and their learned as well as illustrious counsels,
scholars and liberal thinkers that they are, do not recognize the
sincerity of those who entertain opinions that clash with their own.
Such an attitude does not sit well with the dictum that "We can differ
without being difficult; we can disagree without being disagreeable,"
which distinguished counsel in L-36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other
points raised by petitioners, which We do not find now necessary to
deal with in view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE
FIVE CASES SHOULD BE DISMISSED.
MAKASIAR, J., concurring:
Pursuant to Our reservation, We now discuss the other issues raised
by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION,
ADOPTION OR ACQUIESCENCE CREATES STRONG
PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the
proposition that the question as to whether a constitutional amendment
or the revised or new Constitution has been validly submitted to the
people for ratification in accordance with the procedure prescribed by
the existing Constitution, is a justiciable question, accord all
presumption of validity to the constitutional amendment or the revised
or new Constitution after the government officials or the people have
adopted or ratified or acquiesced in the new Constitution or
amendment, although there was an illegal or irregular or no submission
at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935 [1934],
Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369,
74 Pac. 167, 102 Am. St. Rep. 34; Thompson vs. Winneth, 78 Neb.
379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69 Ohio St.
Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347;
Combs vs. State, 81 Ga. 780, 8 SE 318; Woodward vs. State, 103 Ga.
496, 30 SE 522; Corre vs. Cooney, 70 Mont. 355, 225 P 1007, 1009).
As late as 1971, the courts stressed that the constitutional amendment
or the new Constitution should not be condemned "unless our
judgment its nullity is manifest beyond reasonable doubt" (1971 case of
Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the 1956
case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced
that the presumption of constitutionality must persist in the absence of
factual foundation of record to overthrow such presumption (Ermita-
Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA
849).
III
CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND
INDEPENDENT OF CONGRESS, EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well
as independent of, the three grand departments of the Government,
namely, the legislative, the executive and the judicial. As a fourth
separate and distinct branch, to emphasize its independence, the
Convention cannot be dictated to by either of the other three
departments as to the content as well as the form of the Charter that it
proposes. It enjoys the same immunity from interference or supervision
by any of the aforesaid branches of the Government in its proceedings,
including the printing of its own journals (Tañada and Fernando,
Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and
Laurel, Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit
in that independence, for the purpose of maintaining the same
unimpaired and in order that its work will not be frustrated, the
Convention has the power to fix the date for the plebiscite and to
provide funds therefor. To deny the Convention such prerogative,
would leave it at the tender mercy of both legislative and executive
branches of the Government. An unsympathetic Congress would not
be disposed to submit the proposed Constitution drafted by the
Constitutional Convention to the people for ratification, much less
appropriate the necessary funds therefor. That could have been the
fate of the 1973 Constitution, because the same abolished the Senate
by creating a unicameral National Assembly to be presided by a Prime
Minister who wields both legislative and executive powers and is the
actual Chief Executive, for the President contemplated in the new
Constitution exercises primarily ceremonial prerogatives. The new
Constitution likewise shortened abruptly the terms of the members of
the present Congress (whose terms end on December 31, 1973, 1975
and 1977) which provides that the new Constitution shall take effect
immediately upon its ratification (Sec. 16, Article XVII, 1973
Constitution). The fact that Section 2 of the same Article XVIII secures
to the members of Congress membership in the interim National
Assembly as long as they opt to serve therein within thirty (30) days
after the ratification of the proposed Constitution, affords them little
comfort; because the convening of the interim National Assembly
depends upon the incumbent President (under Sec. 3[1], Art. XVII,
1973 Constitution). Under the foregoing circumstances, the members
of Congress, who were elected under the 1935 Constitution, would not
be disposed to call a plebiscite and appropriate funds therefor to
enable the people to pass upon the 1973 Constitution, ratification of
which means their elimination from the political scene. They will not
provide the means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it
is indispensable to its independence and effectiveness, possesses the
power to call a plebiscite and to appropriate funds for the purpose, it
inescapably must have the power to delegate the same to the
President, who, in estimation of the Convention can better determine
appropriate time for such a referendum as well as the amount
necessary to effect the same; for which reason the Convention thru
Resolution No. 29 approved on November 22, 1972, which superseded
Resolution No. 5843 adopted on November 16, 1972, proposed to the
President "that a decree be issued calling a plebiscite for the
ratification of the proposed new Constitution such appropriate date as
he shall determine and providing for the necessary funds therefor, ...,"
after stating in "whereas" clauses that the 1971 Constitutional
Convention expected to complete its work by the end of November,
1972 that the urgency of instituting reforms rendered imperative the
early approval of the new Constitution, and that the national and local
leaders desire that there be continuity in the immediate transition from
the old to the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern
the power to promulgate subordinate rules and regulations to
implement the law, this authority to delegate implementing rules should
not be denied to the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a
plebiscite and to appropriate funds therefor by the Constitutional
Convention thru its Resolution No. 29, the organization of the Citizens'
Assemblies for consultation on national issues, is comprehended within
the ordinance-making power of the President under Section 63 of the
Revised Administrative Code, which expressly confers on the Chief
Executive the power to promulgate administrative acts and commands
touching on the organization or mode of operation of the government
or re-arranging or re-adjusting any district, division or part of the
Philippines "or disposing of issues of general concern ... ." (Emphasis
supplied). Hence, as consultative bodies representing the localities
including the barrios, their creation by the President thru Presidential
Decree No. 86 of December 31, 1972, cannot be successfully
challenged.
The employment by the President of these Citizens' Assemblies for
consultation on the 1973 Constitution or on whether there was further
need of a plebiscite thereon, — both issues of national concern — is
still within the delegated authority reposed in him by the Constitutional
Convention as aforesaid.
It should be noted that Resolution No. 29, which superseded
Resolution No. 5843, does not prescribe that the plebiscite must be
conducted by the Commission on Elections in accordance with the
provisions of the 1971 Revised Election Code. If that were the intention
of the Constitutional Convention in making the delegation, it could have
easily included the necessary phrase for the purpose, some such
phrase like "to call a plebiscite to be supervised by the Commission on
Elections in accordance with the provisions of the 1971 Revised
Election Code (or with existing laws)." That the Constitutional
Convention omitted such phrase, can only mean that it left to the
147
President the determination of the manner by which the plebiscite
should be conducted, who shall supervise the plebiscite, and who can
participate in the plebiscite. The fact that said Resolution No. 29
expressly states "that copies of this resolution as approved in plenary
session be transmitted to the President of the Philippines and the
Commission on Elections for implementation," did not in effect
designate the Commission on Elections as supervisor of the plebiscite.
The copies of said resolution that were transmitted to the Commission
on Elections at best serve merely to notify the Commission on
Elections about said resolution, but not to direct said body to supervise
the plebiscite. The calling as well as conduct of the plebiscite was left
to the discretion of the President, who, because he is in possession of
all the facts funnelled to him by his intelligence services, was in the
superior position to decide when the plebiscite shall be held, how it
shall be conducted and who shall oversee it.
It should be noted that in approving said Resolution No. 29, the
Constitutional Convention itself recognized the validity of, or validated
Presidential Proclamation No. 1081 placing the entire country under
martial law by resolving to "propose to President Ferdinand E. Marcos
that a decree be issued calling a plebiscite ... ." The use of the term
"decree" is significant for the basic orders regulating the conduct of all
inhabitants are issued in that form and nomenclature by the President
as the Commander in Chief and enforcer of martial law. Consequently,
the issuance by the President of Presidential Decree No. 73 on
December 1, 1972 setting the plebiscite on January 15, 1973 and
appropriating funds therefor pursuant to said Resolution No. 29, is a
valid exercise of such delegated authority.
Such delegation, unlike the delegation by Congress of the rule-making
power to the Chief Executive or to any of his subalterns, does not need
sufficient standards to circumscribe the exercise of the power
delegated, and is beyond the competence of this Court to nullify. But
even if adequate criteria should be required, the same are contained in
the "Whereas" clauses of the Constitutional Convention Resolution No.
29, thus:
WHEREAS, the 1971 Constitutional Convention is expected to
complete its work of drafting a proposed new Constitution for the
Republic by the end of November, 1972;
WHEREAS, in view of the urgency of instituting reforms, the early
approval of the New Constitution has become imperative;
WHEREAS, it is the desire of the national and local leaders that there
be continuity in the immediate political transition from the old to the
New Constitution;" (Annex "1" of Answer, Res. No. 29, Constitutional
Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo,
Antonio and the writer concurred in the Plebiscite Cases, stated:
... Once this work of drafting has been completed, it could itself direct
the submission to the people for ratification as contemplated in Article
XV of the Constitution. Here it did not do so. With Congress not being
in session, could the President, by the decree under question, call for
such a plebiscite? Under such circumstances, a negative answer
certainly could result in the work of the Convention being rendered
nugatory. The view has been repeatedly expressed in many American
state court decisions that to avoid such undesirable consequence the
task of submission becomes ministerial, with the political branches
devoid of any discretion as to the holding of an election for that
purpose. Nor is the appropriation by him of the amount necessary to be
considered as offensive to the Constitution. If it were done by him in his
capacity as President, such an objection would indeed have been
formidable, not to say insurmountable. If the appropriation were made
in his capacity as agent of the Convention to assure that there be
submission to the people, then such an argument loses force. The
Convention itself could have done so. It is understandable why it
should be thus. If it were otherwise, then a legislative body, the
appropriating arm of the government, could conceivably make use of
such authority to compel the Convention to submit to its wishes, on
pain of being rendered financially distraught. The President then, if
performing his role as its agent, could be held as not devoid of such
competence. (pp. 2-3, concurring opinion of J. Fernando in L-35925,
etc., emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE
1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete,
and alluded to their arguments during the hearings on December 18
and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable
or ambiguous provisions does not affect the validity of the ratification or
adoption of the 1973 Constitution itself (Pope vs. Gray, 104 SO, 2d
841; 7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the
American Constitution, answering the critics of the Federal
Constitution, stated that: "I never expect to see a perfect work from
imperfect man. The result of the deliberations of all collective bodies
must necessarily be a compound, as well of the errors and prejudices
as of the good sense and wisdom, of the individuals of whom they are
composed. The compacts which are to embrace thirteen distinct States
in a common bond of amity and union, must necessarily be a
compromise of as many dissimilar interests and inclinations. How can
perfection spring from such materials?" (The Federalist, Modern
Library Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground
that it contains provisions which are ultra vires or beyond the power of
the Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of
government from Presidential to Parliamentary and including such
provisions as Section 3 of Article IV, Section 15 of Article XIV and
Sections 3(2) and 12 of Article XVII in the 1973 Constitution.
Article IV —
Sec. 3. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall not be violated, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible officer
as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses may produce, and
particularly describing the place to be searched, and the persons or
things to be seized.
Article XIV —
Sec. 15. Any provision of paragraph one, Section fourteen, Article
Eight and of this Article notwithstanding, the Prime Minister may enter
into international treaties or agreements as the national welfare and
interest may require." (Without the consent of the National Assembly.)
Article XVII —
Sec. 3(2) All proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part
of the law of the land, and shall remain valid, legal, binding and
effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent
proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or
repealed by the regular National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and contracts entered
into by the Government, or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations, are
hereby recognized as legal, valid and binding. When the national
interest so requires, the incumbent President of the Philippines or the
interim Prime Minister may review all contracts, concessions, permits,
or other forms of privileges for the exploration, development,
exploitation, or utilization of natural resources entered into, granted,
issued or acquired before the ratification of this Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-
35948, L-35953, L-35961, L-35965, & L-35979), Chief Justice Roberto
Concepcion, concurred in by Justices Fernando, Barredo, Antonio and
the writer, overruled this objection, thus:
... Regardless of the wisdom and moral aspects of the contested
provisions of the proposed Constitution, it is my considered view that
the Convention was legally deemed fit to propose — save perhaps
what is or may be insistent with what is now known, particularly in
international law, as Jus Cogens — not only because the Convention
exercised sovereign powers delegated thereto by the people —
although insofar only as the determination of the proposals to be made
and formulated by said body is concerned — but also, because said
proposals cannot be valid as part of our Fundamental Law unless and
until "approved by the majority of the votes cast at an election which"
said proposals "are submitted to the people for their ratification," as
provided in Section 1 of Article XV of the 1935 Constitution. (Pp. 17-18,
Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476,
Oct. 20, 1970, 35 SCRA 367) that the Constitutional Convention has
the authority to "entirely overhaul the present Constitution and propose
an entirely new Constitution based on an ideology foreign to the
democratic system ...; because the same will be submitted to the
people for ratification. Once ratified by the sovereign people, there can
be no debate about the validity of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited
the foregoing pronouncement in the Del Rosario case, supra, and
added: "... it seems to me a sufficient answer that once convened, the
area open for deliberation to a constitutional convention ..., is
practically limitless" (citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa
543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan
v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO
148
297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313
[1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State
v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper,
292 P 365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247
NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases,
expressed the view "that when the people elected the delegates to the
Convention and when the delegates themselves were campaigning,
such limitation of the scope of their function and objective was not in
their minds."
V
1973 CONSTITUTION DULY ADOPTED AND
PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention
adjourned on November 30, 1972 without officially promulgating the
said Constitution in Filipino as required by Sections 3(1) of Article XV
on General Provisions of the 1973 Constitution. This claim is without
merit because their Annex "M" is the Filipino version of the 1973
Constitution, like the English version, contains the certification by
President Diosdado Macapagal of the Constitutional Convention, duly
attested by its Secretary, that the proposed Constitution, approved on
second reading on the 27th day of November, 1972 and on third
reading in the Convention's 291st plenary session on November 29,
1972 and accordingly signed on November 1972 by the delegates
whose signatures are thereunder affixed. It should be recalled that
Constitutional Convention President Diosdado Macapagal was, as
President of the Republic 1962 to 1965, then the titular head of the
Liberal Party to which four (4) of the petitioners in L-36165 including
their counsel, former Senator Jovito Salonga, belong. Are they
repudiating and disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT
PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that
"such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such
amendments shall be valid as part of this Constitution when approved
by a majority of the votes cast at an election called by Congress at
which the amendments are submitted for ratification by the qualified
electors defined in Article V hereof, supervised by the Commission on
Elections in accordance with the existing election law and after such
amendments shall have been published in all the newspapers of
general circulation for at least four months prior to such election."
This position certainly imposes limitation on the sovereign people, who
have the sole power of ratification, which imposition by the Court is
never justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and
tortured construction Article XV of the 1935 Constitution. This is a clear
case of usurpation of sovereign power they do not possess — through
some kind of escamotage. This Court should not commit such a grave
error in the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission,
due to absence of substantial compliance with the procedure
prescribed by the Constitution and/or the law, nullifies the proposed
amendment or the new Constitution, the procedure prescribed by the
state Constitution is so detailed that it specifies that the submission
should be at a general or special election, or at the election for
members of the State legislature only or of all state officials only or of
local officials only, or of both state and local officials; fixes the date of
the election or plebiscite limits the submission to only electors or
qualified electors; prescribes the publication of the proposed
amendment or a new Constitution for a specific period prior to the
election or plebiscite; and designates the officer to conduct the
plebiscite, to canvass and to certify the results, including the form of
the ballot which should so state the substance of the proposed
amendments to enable the voter to vote on each amendment
separately or authorizes expressly the Constitutional Convention or the
legislature to determine the procedure or certain details thereof. See
the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas
[1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia
[1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861];
Kentucky [1891]; Louisiana [1921]; Maryland [1867]; Massachusetts
[1790]; Michigan [1909]; Minnesota [1857]; Mississippi [1890]; and
Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution
Sec. 284. Legislative Proposals. Amendments may be proposed to this
Constitution by the legislature in the manner following: The proposed
amendments shall be read in the house in which they originate on
three several days, and, if upon the third reading, three-fifths of all the
members elected to that house shall vote in favor thereof, the
proposed amendments shall be sent to the other house, in which they
shall likewise be read on three several days, and if upon the third
reading, three-fifths of all the members elected that house shall vote in
favor of the proposed amendments, the legislature shall order an
election by the qualified electors of the state upon such proposed
amendments, to be held either at the general election next succeeding
the session of the legislature at which the amendments are proposed
or upon another day appointed by the legislature, not less than three
months after the final adjournment of the session of the legislature at
which the amendments were proposed. Notice of such election,
together with the proposed amendments, shall be given by
proclamation of the governor, which shall be published in every county
in such manner as the legislature shall direct, for at least eight
successive weeks next preceding the day appointed for such election.
On the day so appointed an election shall be held for the vote of the
qualified electors of the state upon the proposed amendments. If such
election be held on the day of the general election, the officers of such
general election shall open a poll for the vote of the qualified electors
upon the proposed amendments; if it be held on a day other than that
of a general election, officers for such election shall be appointed; and
the election shall be held in all things in accordance with the law
governing general elections. In all elections upon such proposed
amendments, the votes cast thereat shall be canvassed, tabulated,
and returns thereof be made to the secretary of state, and counted, in
the same manner as in elections for representatives to the legislature;
and if it shall thereupon appear that a majority of the qualified electors
who voted at such election upon the proposed amendments voted in
favor of the same, such amendments shall be valid to all intents and
purposes as parts of this Constitution. The result of such election shall
be made known by proclamation of the governor. Representation in the
legislature shall be based upon population, and such basis of
representation shall not be changed by constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon the ballots used at all
elections provided for in section 284 of this Constitution, the substance
or subject matter of each proposed amendment shall be so printed that
the nature thereof shall be clearly indicated. Following each proposed
amendment on the ballot shall be printed the word "Yes" and
immediately under that shall be printed the word "No". The choice of
the elector shall be indicated by a cross mark made by him or under
his direction, opposite the word expressing his desire, and no
amendment shall be adopted unless it receives the affirmative vote of a
majority of all the qualified electors who vote at such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either branch of the General
Assembly at a regular session thereof may propose amendments to
this Constitution, and, if the same be agreed to by a majority of all the
members, elected to each house, such proposed amendments shall be
entered on the journal with the yeas and nays, and published in at least
one newspaper in each county, where a newspaper is published, for
six months immediately preceding the next general election for
Senators and Representatives, at which time the same shall be
submitted to the electors of the State for approval or rejection, and if a
majority of the electors voting at such election adopt such
amendments, the same shall become a part of this Constitution; but no
more than three amendments shall be proposed or submitted at the
same time. They shall be so submitted as to enable the electors to vote
on each amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications; elections.
Propositions for the amendment of this constitution may be made by
either branch of the legislature; and if two thirds of all the members
elected to each house shall concur therein, such proposed
amendments, together with the yeas and nays, shall be entered on the
journal; and the secretary of state shall cause the same to be
published in at least one newspaper in each county of the state where
a newspaper is published, for three months preceding the next election
for representatives, at which time, the same shall be submitted to the
electors, for their approval or rejection; and if a majority of the electors
voting on said amendments, at said election, shall adopt the
amendments, the same shall become a part of the constitution. When
more than one amendment shall be submitted at the same time, they
shall be so submitted as to enable the electors to vote on each
amendments separately; and not more than three propositions to
amend shall be submitted at the same election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
149
Sec. 1. Proposal in general assembly; publication; submission to
voters; governor's proclamation. The General Assembly may propose
Amendments to this Constitution; provided that each Amendment shall
be embraced in a separate bill, embodying the Article or Section, as
the same will stand when amended and passed by three fifths of all the
members elected to each of the two Houses, by yeas and nays, to be
entered on the Journals with the proposed Amendment. The bill or bills
proposing amendment or amendments shall be published by order of
the Governor, in at least two newspapers, in each County, where so
many may be published, and where not more than one may be
published, then in the newspaper, and in three newspapers published
in the City of Baltimore, once a week for four weeks immediately
preceding the next ensuing general election, at which the proposed
amendment or amendments shall be submitted, in a form to be
prescribed by the General Assembly, to the qualified voters of the
State for adoption or rejection. The votes cast for and against said
proposed amendment or amendments, severally, shall be returned to
the Governor, in the manner prescribed in other cases, and if it shall
appear to the Governor that a majority of the votes cast at said election
on said amendment or amendments, severally, were cast in favor
thereof, the Governor shall, by his proclamation, declare the said
amendment or amendments having received said majority of votes, to
have been adopted by the people of Maryland as part of the
Constitution thereof, and henceforth said amendment or amendments
shall be part of the said Constitution. When two or more amendments
shall be submitted in the manner aforesaid, to the voters of this State
at the same election, they shall be so submitted as that each
amendment shall be voted on separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by general assembly
or by the initiative. All amendments proposed by the general assembly
or by the initiative shall be submitted to the electors for their approval
or rejection by official ballot title as may be provided by law, on a
separate ballot without party designation, at the next general election,
or at a special election called by the governor prior thereto, at which he
may submit any of the amendments. No such proposed amendment
shall contain more than one amended and revised article of this
constitution, or one new article which shall not contain more than one
subject and matters properly connected therewith. If possible, each
proposed amendment shall be published once a week for two
consecutive weeks in two newspapers of different political faith in each
county, the last publication to be not more than thirty nor less than
fifteen days next preceding the election. If there be but one newspaper
in any county, publication of four consecutive weeks shall be made. If a
majority of the votes cast thereon is in favor of any amendment, the
same shall take effect at the end of thirty days after the election. More
than one amendment at the same election shall be so submitted as to
enable the electors to vote on each amendment separately.
Article XV of the 1935 Constitution does not require a specific
procedure, much less a detailed procedure for submission or
ratification. As heretofore stated, it does not specify what kind of
election at which the new Constitution shall be submitted; nor does it
designate the Commission on Elections to supervise the plebiscite.
Neither does it limit the ratification to the qualified electors as defined in
Article V of the 1935 Constitution. Much less does it require the
publication of the proposed Constitution for any specific period before
the plebiscite nor does it even insinuate that the plebiscite should be
supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure
for submission of the proposed Constitution to the people for
ratification. It does not make any reference to the Commission on
Elections as the body that shall supervise the plebiscite. And Article XV
could not make any reference to the Commission on Elections because
the original 1935 Constitution as ratified on May 14, 1935 by the
people did not contain Article X on the Commission on Elections, which
article was included therein pursuant to an amendment by that National
Assembly proposed only about five (5) years later — on April 11, 1940,
ratified by the people on June 18, 1940 as approved by the President
of the United States on December 1940 (see Sumulong vs.
Commission, 70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law, 1966
ed., p. 13). So it cannot be said that the original framers of the 1935
Constitution as ratified May 14, 1935 intended that a body known as
the Commission on Elections should be the one to supervise the
plebiscite, because the Commission on Elections was not in existence
then as was created only by Commonwealth Act No. 607 approved on
August 22, 1940 and amended by Commonwealth Act No. 657
approved on June 21, 1941 (see Tañada & Carreon, Political Law of
the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs.
Commission, 170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada &
Fernando, Constitution of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II,
pp. 11-19).
Because before August, 1940 the Commission on Election was not yet
in existence, the former Department of Interior (now Department of
Local Governments and Community Development) supervised the
plebiscites on the 1937 amendment on woman's suffrage, the 1939
amendment to the Ordinance appended to the 1935 Constitution
(Tydings-Kocialkowski Act of the U.S. Congress) and the three 1940
amendments on the establishment of a bicameral Congress, the re-
election of the President and the Vice-President, and the creation of
the Commission on Elections (ratified on June 18, 1940). The
supervision of said plebiscites by the then Department of Interior was
not automatic, but by virtue of an express authorization in
Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on
Elections should also supervise the plebiscite for ratification of
constitutional amendments or revision, it should have likewise
proposed the corresponding amendment to Article XV by providing
therein that the plebiscite on amendments shall be supervised by the
Commission on Elections.
3) If the framers of the 1935 Constitution and the people in
ratifying the same on May 14, 1935 wanted that only the qualified
voters under Article V of the 1935 Constitution should participate in the
referendum on any amendment or revision thereof, they could have
provided the same in 1935 or in the 1940 amendment by just adding a
few words to Article XV by changing the last phrase to "submitted for
ratification to the qualified electors as defined in Article V hereof," or
some such similar phrases.
Then again, the term "people" in Article XV cannot be understood to
exclusively refer to the qualified electors under Article V of the 1935
Constitution because the said term "people" as used in several
provisions of the 1935 Constitution, does not have a uniform meaning.
Thus in the preamble, the term "Filipino people" refer, to all Filipino
citizens of all ages of both sexes. In Section 1 of Article II on the
Declaration of Principles, the term "people" in whom sovereignty
resides and from whom all government authority emanates, can only
refer also to Filipino citizens of all ages and of both sexes. But in
Section 5 of the same Article II on social justice, the term "people"
comprehends not only Filipino citizens but also all aliens residing in the
country of all ages and of both sexes. Likewise, that is the same
connotation of the term "people" employed in Section 1(3) of Article III
on the Bill of Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a
right to the electorate, it does so expressly as the case of the election
of senators and congressmen. Section 2 Article VI expressly provides
that the senators "shall be chosen at large by the qualified electors of
the Philippines as may provided by law." Section 5 of the same Article
VI specifically provides that congressmen shall "be elected by the
qualified electors." The only provision that seems to sustain the theory
of petitioners that the term "people" in Article XV should refer to the
qualified electors as defined in Article V of the 1935 Constitution is the
provision that the President and Vice-President shall be elected "by
direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution).
But this alone cannot be conclusive as to such construction, because
of explicit provisions of Sections 2 and 5 of Article VI, which specifically
prescribes that the senators and congressmen shall be elected by the
qualified electors.
As aforesaid, most of the constitutions of the various states of the
United States, specifically delineate in detail procedure of ratification of
amendments to or revision of said Constitutions and expressly require
ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending
Process of the 1934-35 Constitutional Convention satisfied that the
amendment shall be submitted to qualified election for ratification. This
proposal was not accepted indicating that the 1934-35 Constitutional
Convention did intend to limit the term "people" in Article XV of the
1935 Constitution to qualified electors only. As above demonstrated,
the 1934-35 Constitutional Convention limits the use of the term
"qualified electors" to elections of public officials. It did not want to tie
the hands of succeeding future constitutional conventions as to who
should ratify the proposed amendment or revision.
(4) It is not exactly correct to opine that Article XV of 1935
Constitution on constitutional amendment contemplates the automatic
applicability of election laws to plebiscites on proposed constitutional
amendments or revision.
The very phraseology of the specific laws enacted by the National
Assembly and later by Congress, indicates that there is need of a
statute expressly authorizing the application of the election laws to
plebiscites of this nature. Thus, Com. Act No. 34 on the woman's
suffrage amendment enacted on September 30, 1936, consists of 12
sections and, aside from providing that "there shall be held a plebiscite
on Friday, April 30, 1937, on the question of woman's suffrage ... and
that said amendment shall be published in the Official Gazette in
English and Spanish for three consecutive issues at least fifteen (15)
days prior to said election, ... and shall be posted in a conspicuous
place in its municipal and provincial office building and in its polling
place not later than April 22, 1937" (Sec. 12, Com. Act No. 34),
specifies that the provisions of the Election Law regarding, the holding
of a special election, insofar as said provisions are not in conflict with it,
should apply to the said plebiscite (Sec. 3, Com. Act No. 34)1; and,
150
that the votes cast according to the returns of the board of inspectors
shall be counted by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections
392-483 of the Revised Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on
August 22, 1938, makes it expressly applicable to plebiscites. Yet the
subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act
No. 73 calling for the plebiscite on the constitutional amendments in
1939, 1940 and 1946, including the amendment creating the
Commission on Elections, specifically provided that the provisions of
the existing election law shall apply to such plebiscites insofar as they
are not inconsistent with the aforesaid Com. Act Nos. 492 and 517, as
well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19, 1939, calling
for a plebiscite on the proposed amendments to the Constitution
adopted by the National Assembly on September 15, 1939, consists of
8 sections and provides that the proposed amendments to the
Constitution adopted in Resolution No. 39 on September 15, 1939
"shall be submitted to the Filipino people for approval or disapproval at
a general election to be held throughout the Philippines on Tuesday,
October 24, 1939"; that the amendments to said Constitution proposed
in "Res. No. 38, adopted on the same date, shall be submitted at
following election of local officials," (Sec. 1, Com. Act No. 492) that the
said amendments shall be published in English and Spanish in three
consecutive issues of the Official Gazette at least ten (10) days prior to
the elections; that copies thereof shall be posted not later than October
20, 1939 (Sec. 2, Com. Act 492); that the election shall be conducted
according to provisions of the Election Code insofar as the same may
be applicable; that within thirty (30) days after the election, Speaker of
the National Assembly shall request the President to call a special
session of the Assembly for the purpose of canvassing the returns and
certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved
on April 25, 1940 and provided, among others: that the plebiscite on
the constitutional amendments providing bicameral Congress, re-
election of the President and Vice-President, and the creation of a
Commission on Elections shall be held at a general election on June
18, 1940 (Sec. 1); that said amendments shall be published in three
consecutive issues of the Official Gazette in English and Spanish at
least 20 days prior to the election and posted in every local
government office building and polling place not later than May 18,
1940 (Sec. 2); that the election shall be conducted in conformity with
the Election Code insofar as the same may be applicable (Sec. 3) that
copies of the returns shall be forwarded to the Secretary of National
Assembly and the Secretary of Interior (Sec. 7); that the National
Assembly shall canvass the returns to certify the results at a special
session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a
plebiscite on the parity amendment consists of 8 sections provides that
the Amendment "shall be submitted to the people, for approval or
disapproval, at a general election which shall be held on March 11,
1947, in accordance with the provisions of this Act" (Sec. 1, R.A. No.
73); that the said amendment shall be published in English and
Spanish in three consecutive issues of the Official Gazette at least 20
days prior to the election; that copies of the same shall be posted in a
conspicuous place and in every polling place not later than February
11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No.
357 (Election Code) and Com. Act No. 657 creating the Commission
on Elections, shall apply to the election insofar as they are not
inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days
after the election, the Senate and House of Representatives shall hold
a joint session to canvass the returns and certify the results thereof
(Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935
Constitution does not contemplate nor envision the automatic
application of the election law; and even at that, not all the provisions
of the election law were made applicable because the various laws
aforecited contain several provisions which are inconsistent with the
provisions of the Revised Election Code (Com. Act No. 357).
Moreover, it should be noted that the period for the publication of the
copies of the proposed amendments was about 10 days, 15 days or 20
days, and for posting at least 4 days, 8 days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the
Election Code shall apply to plebiscites (See. 2, R.A. No. 180, as
amended, and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of
the 1935 Constitution, there would be no need for Congress to
expressly provide therefor in the election laws enacted after the
inauguration of the Commonwealth government under the 1935
Constitution.
(5) Article XV of the 1935 Constitution does not specify who can
vote and how they shall vote. Unlike the various State Constitutions of
the American Union (with few exceptions), Article XV does not state
that only qualified electors can vote in the plebiscite. As above-
intimated, most of the Constitutions of the various states of the United
States provide for very detailed amending process and specify that
only qualified electors can vote at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known
as the Barrio Charter, which was approved on June 17, 1967 and
superseded Republic Act No. 2370, expanded the membership of the
barrio assembly to include citizens who are at least 18 years of age,
whether literate or not, provided they are also residents of the barrio for
at least 6 months (Sec. 4, R.A. No. 3590).
Sec. 4. The barrio assembly. — The barrio assembly shall consist of
all persons who are residents of the barrio for at least six months,
eighteen years of age or over, citizens of the Republic of the
Philippines and who are duly registered in the list of barrio assembly
members kept by the Barrio Secretary.
The barrio assembly shall meet at least once a year to hear the annual
report of the barrio council concerning the activities and finances of the
barrio.
It shall meet also at the case of the barrio council or upon written
petition of at least One-Tenth of the members of the barrio assembly.
No meeting of the barrio assembly shall take place unless notice is
given one week prior to the meeting except in matters involving public
safety or security in which case notice within a reasonable time shall
be sufficient. The barrio captain, or in his absence, the councilman
acting as barrio captain, or any assembly member selected during the
meeting, shall act as presiding officer at all meetings of the barrio
assembly. The barrio secretary or in his absence, any member
designated by the presiding officer to act as secretary shall discharge
the duties of secretary of the barrio assembly.
For the purpose of conducting business and taking any official action in
the barrio assembly, it is necessary that at least one-fifth of the
members of the barrio assembly be present to constitute a quorum. All
actions shall require a majority vote of these present at the meeting
there being a quorum.
Sec. 5. Powers of the barrio assembly. — The powers of the barrio
assembly shall be as follows:
a. To recommend to the barrio council the adoption of
measures for the welfare of the barrio;
b. To decide on the holding of a plebiscite as provided for in
Section 6 of this Act;
c. To act on budgetary and supplemental appropriations and
special tax ordinances submitted for its approval by the barrio council;
and
d. To hear the annual report council concerning the activities
and finances of the assembly.
Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when
authorized by a majority vote of the members present in the barrio
assembly, there being a quorum, or when called by at least four
members of the barrio council; Provided, however, That no plebiscite
shall be held until after thirty days from its approval by either body, and
such plebiscite has been given the widest publicity in the barrio, stating
the date, time, and place thereof, the questions or issues to be
decided, action to be taken by the voters, and such other information
relevant to the holding of the plebiscite.
All duly registered barrio assembly members qualified to vote may vote
in the plebiscite. Voting procedures may be made either in writing as in
regular election, and/or declaration by the voters to the board of
election tellers. The board of election tellers shall be the same board
envisioned by section 8, paragraph 2 of this Act, in case of vacancies
in this body, the barrio council may fill the same.
A plebiscite may be called to decide on the recall of any member of the
barrio council. A plebiscite shall be called to approve any budgetary,
supplemental appropriations or special tax ordinances.
For taking action on any of the above enumerated measures, majority
vote of all the barrio assembly members registered in the list of barrio
secretary is necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. — Every citizen of
the Philippines, twenty-one years of age or over, able to read and
write, who has been a resident of the barrio during the six months
immediately preceding the election, duly registered in the list of voters
kept by the barrio secretary, who is not otherwise disqualified, may
vote or be a candidate in the barrio elections.
The following persons shall not be qualified to vote:
151
a. Any person who has been sentenced by final judgment to
suffer one year or more of imprisonment, within two years after service
of his sentence;
b. Any person who has violated his allegiance to the Republic
of the Philippines; and
c. Insane or feeble-minded persons.
All these barrio assembly members, who are at least 18 years of age,
although illiterate, may vote at the plebiscite on the recall of any
member of the barrio council or on a budgetary, supplemental
appropriation, or special ordinances, a valid action on which requires "a
majority vote of all of the barrio assembly members registered in the
list of the barrio secretary" (par. 5, Sec. 6, R.A. No. 3590). Such
plebiscite may be authorized by a majority vote of the members
present in the barrio assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens,
who are at least 21 years of age, able to read and write, residents of
the barrio during the 6 months immediately preceding the election and
duly registered in the list of voters kept by the barrio secretary, not
otherwise disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides
that "voting procedures may be made ... either in writing as in regular
elections, and/or declaration by the voters to the board of election
tellers."
That said paragraph 2 of Section 6 provides that "all duly registered
barrio assembly members qualified to vote may vote in the plebiscite,"
cannot sustain the position of petitioners in G.R. No. L-36165 that only
those who are 21 years of age and above and who possess all other
qualifications of a voter under Section 10 of R.A. No. 3590, can vote on
the plebiscites referred to in Section 6; because paragraph 3 of Section
6 does not expressly limit the voting to those with the qualifications
under Section 10 as said Section 6 does not distinguish between those
who are 21 or above on the one hand and those 18 or above but below
21 on the other, and whether literate or not, to constitute a quorum of
the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered
members of the barrio assembly can vote as long as they are 18 years
of age or above; and that only those who are 21 years of age or over
and can read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio
assembly to those who are at least 18 years of age, whether literate or
not. Republic Act No. 3590 could simply have restated Section 4 of
Republic Act No. 2370, the old Barrio Charter, which provided that only
those who are 21 and above can be members of the barrio assembly.
Counsels Salonga and Tañada as well as all the petitioners in L-36165
and two of the petitioners in L-36164 participated in the enactment of
Republic Act No. 3590 and should have known the intendment of
Congress in expanding the membership of the barrio assembly to
include all those 18 years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a
constituent assembly, can include 18-year olds as qualified electors for
barrio plebiscites, this prerogative can also be exercised by the Chief
Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential
Proclamation No. 1102 that the 1973 Constitution was overwhelmingly
ratified by the people through the Citizens' Assemblies in a referendum
conducted from January 10 to 15, 1973, should be accorded the
presumption of correctness; because the same was based on the
certification by the Secretary of the Department of Local Government
and Community Development who tabulated the results of the
referendum all over the country. The accuracy of such tabulation and
certification by the said Department Secretary should likewise be
presumed; because it was done in the regular performance of his
official functions aside from the fact that the act of the Department
Secretary, as an alter ego of the President, is presumptively the act of
the President himself unless the latter disapproves or reprobates the
same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the
certification by the Department Secretary and the Chief Executive on
the results of the referendum, is further strengthened by the affidavits
and certifications of Governor Isidro Rodriguez of Rizal, Mayor
Norberto S. Amoranto of Quezon City and Councilor Eduardo T.
Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman
suffrage, the 1939 amendment to the ordinance appended to the 1935
Constitution, the 1940 amendments establishing the bicameral
Congress, creating the Commission on Elections and providing for two
consecutive terms for the President, and the 1947 parity amendment,
cannot be invoked; because those amendments were proposed by the
National Assembly as expressly authorized by Article V of the 1935
Constitution respecting woman suffrage and as a constituent assembly
in all the other amendments aforementioned and therefore as such,
Congress had also the authority to prescribe the procedure for the
submission of the proposed amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an
independent Constitutional Convention, which as heretofore discussed,
has the equal power to prescribe the modality for the submission of the
1973 Constitution to the people for ratification or delegate the same to
the President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor
Norberto Amoranto could be utilized as the basis for the extrapolation
of the Citizens' Assemblies in all the other provinces, cities and
municipalities in all the other provinces, cities and municipalities, and
the affirmative votes in the Citizens' Assemblies resulting from such
extrapolation would still constitute a majority of the total votes cast in
favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the
Department of Local Government and Community Development that in
Rizal there were 1,126,000 Yes votes and 100,310 No votes, the
certification of Governor Isidro Rodriguez of Rizal, shows only 614,157
Yes votes against 292,530 No votes. In Cavite province, there were
249,882 Yes votes against 12,269 No votes as disclosed in Annex 1-A
of respondents' Compliance (the certification by the Department of
Local Government and Community Development), while the alleged
certification of Governor Lino Bocalan of Cavite shows only 126,163
Yes votes and 5,577 No votes. If such a ratio is extended by way of
extrapolation to the other provinces, cities and towns of the country,
the result would still be an overwhelming vote in favor of the 1973
Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not
true; because in his duly acknowledged certification dated March 16,
1973, he states that since the declaration of martial law and up to the
present time, he has been under house arrest in his residence in
Urdaneta Village, Makati, Rizal; that he never participated in the
conduct of the Citizens' Assemblies on January 10 15, 1973 in the
province of Cavite; that the acting chairman and coordinator of the
Citizens' Assemblies at that time was Vice-Governor Dominador
Camerino; and that he was shown a letter for his signature during the
conduct of the Citizens' Assemblies, which he did not sign but which he
referred to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol.
Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16,
1973 stating that on January 15, 1973, he caused the preparation of a
letter addressed to Secretary Jose Roño of the Department of Local
Government and Community Development showing the results of the
referendum in Pasay City; that on the same day, there were still in any
Citizens' Assemblies holding referendum in Pasay City, for which
reason he did not send the aforesaid letter pending submittal of the
other results from the said Citizens' Assemblies; and that in the
afternoon of January 15, 1973, he indorsed the complete certificate of
results on the referendum in Pasay City to the Office of the President
(Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of
Pasay City also issued an affidavit dated March 15, 1973 stating that a
certain Atty. Delia Sutton of the Salonga Law Office asked him for the
results of the referendum; that he informed her that he had in his
possession unsigned copies of such results which may not be
considered official as they had then no knowledge whether the original
thereof had been signed by the mayor; and that in spite of his advice
that said unsigned copies were not official, she requested him if she
could give her the unofficial copies thereof, which he gave in good faith
(Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the
Citizens' Assemblies of Quezon city (Annex V to Petitioners' Notes in
L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of
alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle,
Quezon City, states that "as far as we know, there has been no
Citizens' Assembly meeting in our Area, particularly in January of this
year," does not necessarily mean that there was no such meeting in
said barrio; for she may not have been notified thereof and as a result
she was not able to attend said meeting. Much less can it be a basis
for the claim that there was no meeting at all in the other barrios of
Quezon City. The barrio captain or the secretary of the barrio assembly
could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon
City Ratification and Coordinating Council, certified on March 12, 1973
that as such chairman he was in charge of the compilation and
tabulation of the results of the referendum among the Citizens'
Assemblies in Quezon City based on the results submitted to the
Secretariat by the different Citizens' Assemblies; but many results of
the referendum were submitted direct to the national agencies having
to do with such activity and all of which he has no knowledge,
participation and control (Annex 4 Rejoinder of the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March
16, 1973 that he prepared a letter to the President dated January 15,
1973 informing him of the results of the referendum in Rizal, in
152
compliance with the instruction of the National Secretariat to submit
such letter 2 or 3 days from January 10 to show the trend of voting in
the Citizens' Assemblies; that the figures 614,157 and 292,530
mentioned in said letter were based on the certificates of results in his
possession as of January 14, 1973, which results were made the basis
of the computation of the percentage of voting trend in the province;
that his letter was never intended to show the final or complete result in
the referendum in the province as said referendum was then still going
on from January 14-17, 1973, for which reason the said letter merely
stated that it was only a "summary result"; and that after January 15,
1973, he sent to the National Secretariat all the certificates of results in
26 municipalities of Rizal for final tabulation (Annex 3-Rejoinder of the
Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department
of Local Government and Community Development, issued a
certificate dated March 16, 1973 that she was shown xerox copies of
unsigned letters allegedly coming from Governor Lino Bocalan dated
January 15, 1973 and marked "Rejoinder Annex Cavite" addressed to
the President of the Philippines through the Secretary of the
Department of Local Government and Community Development and
another unsigned letter reportedly from Mayor Pablo Cuneta dated
January 15, 1973 and marked "Rejoinder Annex Pasay City"
addressed to the Secretary of the Department of Local Government
and Community Development; that both xerox copies of the unsigned
letters contain figures showing the results of the referendum of the
Citizens' Assemblies in those areas; and that the said letters were not
received by her office and that her records do not show any such
documents received by her office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to
deceive this Court by representing said unsigned letters and/or
certificates as duly signed and/or containing the complete returns of
the voting in the Citizens' Assemblies.
The observation We made with respect to the discrepancy between the
number of Yes votes and No votes contained in the summary report of
Governor Rodriguez of Rizal as well as those contained in the alleged
report of Governor Lino Bocalan of Cavite who repudiated the same as
not having been signed by him for he was then under house arrest, on
the one hand, and the number of votes certified by the Department of
Local Government and Community Development, on the other, to the
effect that even assuming the correctness of the figures insisted on by
counsel for petitioners in L-36165, if they were extrapolated and
applied to the other provinces and cities of the country, the Yes votes
would still be overwhelmingly greater than the No votes, applies
equally to the alleged discrepancy between the figures contained in the
certification of the Secretary of the Department of Local Government
and Community Development and the figures furnished to counsel for
petitioners in L-36165 concerning the referendum in Camarines Sur,
Bataan and Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines
Sur, shows that there were more votes in favor of the plebiscite to be
held later than those against, only serve to emphasize that there was
freedom of voting among the members of the Citizens' Assemblies all
over the country during the referendum from January 10 to 15, 1973
(Annex-6 Camarines Sur to Rejoinder of Petitioners in L-36165). If
there was no such freedom of choice, those who wanted a plebiscite
would not outnumber those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973
confirms the "strong manifestation of approval of the new Constitution
by almost 97% by the members of the Citizens' Assemblies in
Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in L-
36165).
The report of Governor Efren B. Pascual of Bataan shows that the
members of the Citizens' Assemblies voted overwhelmingly in favor of
the new Constitution despite the fact that the second set of questions
including the question "Do you approve of the new Constitution?" was
received only on January 10. Provincial Governor Pascual stated that
"orderly conduct and favorable results of the referendum" were due not
only to the coordinated efforts and cooperation of all teachers and
government employees in the area but also to the enthusiastic
participation by the people, showing "their preference and readiness to
accept this new method of government to people consultation in
shaping up government policies." (Annex-Bataan to Rejoinder of
Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new
Constitution are registered in the book of voters; it is enough that they
are electors voting on the new Constitution (Bott vs. Wurts, 40 A 740
[1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of
actual voters in the referendum in certain localities may exceed the
number of voters actually registered for the 1971 elections, can only
mean that the excess represents the qualified voters who are not yet
registered including those who are at least 15 years of age and the
illiterates. Although ex-convicts may have voted also in the
referendum, some of them might have been granted absolute pardon
or were sentenced to less than one year imprisonment to qualify them
to vote (Sec. 201, 1971 Rev. Election Code). At any rate, the ex-
convicts constitute a negligible number, discounting which would not tilt
the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who
belongs to the Liberal Party, stated in his letter dated March 13, 1973
that he does not "feel authorized by the proper authorities to confirm or
deny the data" concerning the number of participants, the Yes votes
and No votes in the referendum on the new Constitution among the
members of the Citizens' Assemblies in Caloocan City, does not
necessarily give rise to the inference that Mayor Samson of Caloocan
City is being intimidated, having been recently released from detention;
because in the same letter of Mayor Samson, he suggested to counsel
for petitioners in L-36165 that he can secure "the true and legitimate
results of the referendum" from the Office of the President (Annex
Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not
learned and eminent counsel heed such suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies
heavily on the computation of the estimated turnover in the Citizens'
Assemblies referendum on January 10 to 15, 1973 by a certain
Professor Benjamin R. Salonga, of the Mapua Institute of Technology,
ostensibly a close relative of former Senator Jovito R. Salonga,
eminent counsel for petitioners in L-36165 (Annex M-as amended, to
Consolidated Rejoinder of petitioners in L-36165 to the Notes of
Arguments and Memorandum of respondents). Professor Salonga is
not a qualified statistician, which all the more impairs his credibility.
Director Tito A. Mijares of the Bureau of Census and Statistics, in his
letter dated March 16, 1973 address to the Secretary of the
Department of Local Government and Community Development,
refutes the said computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all qualified
registered voters and the 15-20-year-old youths (1972) will have to be
estimated in order to give a 101.9% estimate of the percentage
participation of the "15-20 year old plus total number of qualified
voters" which does not deem to answer the problem. This computation
apparently fails to account for some 5.6 million persons "21 years old
and over" who were not registered voters (COMELEC), but who might
be qualified to participate at the Citizen's Assembly.
2) The official population projection of this office (medium
assumption) for "15 year olds and over" as of January 1, 1973 is
22.506 million. If total number of participants at the Citizens' Assembly
Referendum held on January 10-15, 1973 was 16.702 million,
participation rate will therefore be the ratio of the latter figure to the
former which gives 74.2%.
3) 1 cannot also understand c-2 "Solution to Problem 11." The
"difference or implied number of 15-20 year olds" of 5,039,906 would
represent really not only all 15-year olds and over who participated at
the Citizens' Assembly but might not have been registered voters at the
time, assuming that all the 11,661,909 registered voted at Citizens'
Assembly. Hence, the "estimate percentage participation of 15-20
years olds" of 105.6% does not seem to provide any meaningful
information.
To obtain the participation rate of "15-20 years old" one must divide the
number in this age group, which was estimated to be 4.721 million as
of January 1, 1973 by the population of "15 years old and over" for the
same period which was estimated to be 22.506 million, giving 21.0%.
In Problem III, it should be observed that registered voters also include
names of voters who are already dead. It cannot therefore be assumed
that all of them participated at the Citizens' Assembly. It can therefore
be inferred that "a total number of persons 15 and over
unqualified/disqualified to vote" will be more than 10,548,197 and
hence the "difference or implied number of registered voters that
participated" will be less than 6,153,618.
I have reservations on whether an "appropriate number of qualified
voters that supposedly voted" could be meaningfully estimated.
5) The last remark will therefore make the ratio (a) [Solution to
Problem] more than 1.71 and that for (b), accordingly, will also be less
than 36.8%." (Annex F Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as
of January 21, 1973, the official population projection for 15-year olds
and over is 22,506,000. If 16,702,000 voted in the referendum, the
participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971
numbered 11,661,909, the difference between 16,702,000 who
participated in the referendum and the registered electors of
11,661,909 for the November 8, 1971 elections, is 5,040,091, which
may include not only the 15-year olds and above but below 21 but also
the qualified electors who were not registered before the November 8,
1971 elections as well as illiterates who are 15 years old and above but
below 21.
Moreover, in the last Presidential election in November, 1969, We
found that the incumbent President obtained over 5,000,000 votes as
against about 3,000,000 votes for his rival LP Senator Sergio Osmeña,
153
Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmeña,
Jr. vs. Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that
those who voted for the incumbent President in 1969 did not vote in
favor of the 1973 Constitution during the referendum from January 10
to 15, 1973. It should also be stressed that many of the partisans of the
President in the 1969 Presidential elections, have several members in
their families and relatives who are qualified to participate in the
referendum because they are 15 years or above including illiterates,
which fact should necessarily augment the number of votes who voted
for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is
necessarily inconsistent with freedom of choice, because the people
fear to disagree with the President and Commander-in-Chief of the
Armed Forces of the Philippines and therefore cannot voice views
opposite to or critical of the position of the President on the 1973
Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during
martial law which inevitably generates fear in the individual. Even
without martial law, the penal, civil or administrative sanction provided
for the violation of ordinarily engenders fear in the individual which
persuades the individual to comply with or obey the law. But before
martial law was proclaimed, many individuals fear such sanctions of
the law because of lack of effective equal enforcement or
implementation thereof — in brief, compartmentalized justice and
extraneous pressures and influences frustrated the firm and just
enforcement of the laws. The fear that is generated by martial law is
merely the fear of immediate execution and swift enforcement of the
law and therefore immediate infliction of the punishment or sanction
prescribed by the law whenever it is transgressed during the period of
martial law. This is not the fear that affects the voters' freedom of
choice or freedom to vote for or against the 1973 Constitution. Those
who cringe in fear are the criminals or the law violators. Surely,
petitioners do not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or
raising of hands violates the secrecy of the ballot as by the election
laws. But the 1935 Constitution does not require secret voting. We
search in vain for such guarantee or prescription in said organic law.
The Commission on Elections under the 1940 Amendment, embodied
as Article X is merely mandated to insure "free, orderly and honest
election." Congress, under its plenary law-making authority, could have
validly prescribed in the election law open voting in the election of
public officers, without trenching upon the Constitution. Any objection
to such a statute concerns its wisdom or propriety, not its legality or
constitutionality. Secret balloting was demanded by partisan strife in
elections for elective officials. Partisanship based on party or personal
loyalties does not generally obtain in a plebiscite on proposed
constitutional amendments or on a new Constitution. We have seen
even before and during martial law that voting in meetings of
government agencies or private organizations is usually done openly.
This is specially true in sessions of Congress, provincial boards, city
councils, municipal boards and barrio councils when voting on national
or local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the
Citizens' Assemblies. It might have been true in certain areas, but that
does not necessarily mean that it was done throughout the country.
The recent example of an open voting is the last election on March 3,
1973 of the National Press Club officers who were elected by
acclamation presided over by its former president, petitioner Eduardo
Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue).
There can be no more hardboiled group of persons than
newspapermen, who cannot say that voting among them by
acclamation was characterized by fear among the members of the
National Press Club.
Moreover, petitioners would not be willing to affirm that all the
members of the citizenry of this country are against the new
Constitution. They will not deny that there are those who favor the
same, even among the 400,000 teachers among whom officers of the
Department of Education campaigned for the ratification of the new
Constitution.
Not one of the petitioners can say that the common man — farmer,
laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus
driver, pedestrian, salesman, or salesgirl — does not want the new
Constitution, or the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given
to the new Constitution. This is quite inaccurate; because even before
the election in November, 1970 of delegates to the Constitutional
Convention, the proposed reforms were already discussed in various
forums and through the press as well as other media of information.
Then after the Constitutional Convention convened in June, 1971,
specific reforms advanced by the delegates were discussed both in
committee hearings as well as in the tri-media — the press, radio and
television. Printed materials on the proposed reforms were circulated
by their proponents. From June, 1971 to November 29, 1972, reforms
were openly discussed and debated except for a few days after the
proclamation of martial law on September 21, 1972. From the time the
Constitutional Convention reconvened in October, 1972 until January
7, 1973, the provisions of the new Constitution were debated and
discussed in forums sponsored by private organizations universities
and debated over the radio and on television. The Philippines is a
literate country, second only to Japan in the Far East, and more literate
perhaps than many of mid-western and southern states of the
American Union and Spain. Many residents in about 1,500 towns and
33,000 barrios of the country have radios. Even the illiterates listened
to radio broadcasts on and discussed the provisions of the 1973
Constitution.
As reported by the eminent and widely read columnist, Teodoro
Valencia in his column in Bulletin Today, March 4, 1973 issue, "Otto
Lang, Hollywood producer director (Tora, Tora, Tora) went around the
country doing a 30-minute documentary on the Philippines for
American television stated that what impressed him most in his travel
throughout the country was the general acceptance of the New Society
by the people which he saw in his 6-week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and
Daily Express, March 3, and Sunday Express, March 4), Secretary of
the United States Senate, who conducted a personal survey of the
country as delegate of Senator Mike Mansfield, Chairman, Committee
on US-Philippine relations, states:
Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines. President Marcos has been prompt and
sure-footed in using the power of presidential decree under martial law
for this purpose. He has zeroed in on areas which have been widely
recognized as prime sources of the nation's difficulties — land tenancy,
official corruption, tax evasion and abuse of oligarchic economic
power. Clearly, he knows the targets. What is not yet certain is how
accurate have been his shots. Nevertheless, there is marked public
support for his leadership and tangible alternatives have not been
forthcoming. That would suggest that he may not be striking too far
from the mark.
The United States business community in Manila seems to have been
re-assured by recent developments ... . (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the
country, who constitute the majority of the population, do not like the
reforms stipulated in the new Constitution, as well as the decrees,
orders and circulars issued to implement the same. It should be
recalled, as hereinbefore stated, that all these reforms were the subject
of discussion both in the committee hearings and on the floor of the
Constitutional Convention, as well as in public forums sponsored by
concerned citizens or civic organizations at which Con-Con delegates
as well as other knowledgeable personages expounded their views
thereon and in all the media of information before the proclamation of
martial law on September 21, 1972. This is the reason why the
Constitutional Convention, after spending close to P30 million during
the period from June 1, 1971 to November 29, 1972, found it expedient
to accelerate their proceedings in November, 1972 because all views
that could possibly be said on the proposed provisions of the 1973
Constitution were already expressed and circulated. The 1973
Constitution may contain some unwise provisions. But this objection to
such unwise or vague provisions, as heretofore stated, refers to the
wisdom of the aforesaid provisions, which issue is not for this Court to
decide; otherwise We will be substituting Our judgment for the
judgment of the Constitutional Convention and in effect acting as a
constituent assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES
LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the
President as Commander-in-Chief is vested with legislative powers, is
sustained by the ruling in the 1949 case of Kuroda vs. Jalandoni, et al.
(83 Phil. 171, 177-178) which reiterates the 1945 case of Yamashita
vs. Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after
the surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p.
799) and hence no more martial law in the Philippines.
... Consequently, in the promulgation and enforcement of Executive
Order No. 68, the President of the Philippines has acted in conformity
with the generally accepted principles and policies of international law
which are part of our Constitution.
The promulgation of said executive order is an exercise by the
President of his powers as Commander in Chief of all our armed
forces, as upheld by this Court in the case of Yamashita vs. Styver (L-
129, 42 Off. Gaz., 664) when we said —
"War is not ended simply because hostilities have ceased. After
cessation of armed hostilities, incidents of war may remain pending
which should be disposed of as in time of war. "An important incident to
a conduct of war is the adoption measures by the military command
not only to repel and defeat the enemies but to seize and subject to
154
disciplinary measures those enemies who in their attempt to thwart or
impede our military effort have violated the law of war." (Ex parte
Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a
military commission for the trial and punishment of war criminals is an
aspect of waging war. And, in the language of a writer, a military
commission "has jurisdiction so long as the technical state of war
continues. This includes the period of an armistice, or military
occupation, up to the effective date of treaty of peace, and may extend
beyond, by treaty agreement." (Cowles, Trial of War Criminals by
Military Tribunals, American Bar Association Journal, June, 1944).
Consequently, the President as Commander-in-Chief is fully
empowered to consummate this unfinished aspect of war, namely the
trial and punishment of war criminals, through the issuance and
enforcement of Executive Order No. 68. (83 Phil. 177-178; emphasis
supplied).
Chief Justice Stone of the United States Supreme Court likewise
appears to subscribe to this view, when, in his concurring opinion in
Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined martial law
as "the exercise of the power which resides in the executive branch of
the government to preserve order and insure the public safety in times
of emergency, when other branches of the government are unable to
function, or their functioning would itself threaten the public safety."
(Emphasis supplied). There is an implied recognition in the aforesaid
definition of martial law that even in places where the courts can
function, such operation of the courts may be affected by martial law
should their "functioning ... threaten the public safety." It is possible
that the courts, in asserting their authority to pass upon questions
which may adversely affect the conduct of the punitive campaign
against rebels, secessionists, dissidents as well as subversives, martial
law may restrict such judicial function until the danger to the security of
the state and of the people shall have been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some instances might
become an outright dictatorship, can have no other purposes than the
preservation of the independence of the state, the maintenance of the
existing constitutional order, and the defense of the political and social
liberties of the people. It is important to recognize the true and limited
ends of any practical application of the principle of constitutional
dictatorship. Perhaps the matter may be most clearly stated in this
way: the government of a free state is proceeding on its way and
meeting the usual problems of peace and normal times within the
limiting framework of its established constitutional order. The functions
of government are parceled out among a number of mutually
independent offices and institutions; the power to exercise those
functions is circumscribed by well-established laws, customs, and
constitutional prescriptions; and the people for whom this government
was instituted are in possession of a lengthy catalogue of economic,
political, and social rights which their leaders recognize as inherent and
inalienable. A severe crisis arises — the country is invaded by a hostile
power, or a dissident segment of the citizenry revolts, or the impact of
a world-wide depression threatens to bring the nation's economy in
ruins. The government meets the crisis by assuming more powers and
respecting fewer rights. The result is a regime which can act arbitrarily
and even dictatorially in the swift adaption of measures designed to
save the state and its people from the destructive effects of the
particular crisis. And the narrow duty to be pursued by this strong
government, this constitutional dictatorship? Simply this and nothing
more: to end the crisis and restore normal times. The government
assumes no power and abridges no right unless plainly indispensable
to that end; it extends no further in time than the attainment of that end;
and it makes no alteration in the political, social and economic
structure of the nation which cannot be eradicated with the restoration
of normal times. In short, the aim of constitutional dictatorship is the
complete restoration of the status quo ante bellum. This historical fact
does not comport with philosophical theory, that there never has been
a perfect constitutional dictatorship, is an assertion that can be made
without fear of contradiction. But this is true of all institutions of
government, and the principle of constitutional dictatorship remains
eternally valid no matter how often and seriously it may have been
violated in practice. (Constitutional Dictatorship, 1948 ed., by Clinton L.
Rossiter, p. 7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief
Executive exercises legislative power, whether of temporary or
permanent character, thus:
The measures adopted in the prosecution of a constitutional
dictatorship should never be permanent in character or effect.
Emergency powers are strictly conditioned by their purpose and this
purpose is the restoration of normal conditions. The actions directed to
this end should therefore be provisional. For example, measures of a
legislative nature which work a lasting change in the structure of the
state or constitute permanent derogations from existing law should not
be adopted under an emergency enabling act, at least not without the
positively registered approval of the legislature. Permanent laws,
whether adopted in regular or irregular times, are for parliaments to
enact. By this same token, the decisions and sentences of
extraordinary courts should be reviewed by the regular courts after the
termination of the crisis.

But what if a radical act of permanent character, one working lasting
changes in the political and social fabric, is indispensable to the
successful prosecution of the particular constitutional dictatorship? The
only answer can be: it must be resolutely taken and openly
acknowledged. President Lincoln found it necessary to proceed to the
revolutionary step of emancipation in aid of his conservative purpose of
preserving the Union; as a constitutional dictator he had a moral right
to take this radical action. Nevertheless, it is imperative that any action
with such lasting effects should eventually receive the positive approval
of the people or of their representatives in the legislature. (P. 303,
emphasis supplied).
From the foregoing citations, under martial law occasioned by severe
crisis generated by revolution, insurrection or economic depression or
dislocation, the government exercises more powers and respects fewer
rights in order "to end the crisis and restore normal times." The
government can assume additional powers indispensable to the
attainment of that end — the complete restoration of peace. In our
particular case, eradication of the causes that incited rebellion and
subversion as secession, is the sine qua non to the complete
restoration of normalcy. Exercise of legislative power by the President
as Commander in Chief, upon his proclamation of martial law, is
justified because, as he professes, it is directed towards the institution
of radical reforms essential to the elimination of the causes of
rebellious, insurgent or subversive conspiracies and the consequent
dismantling of the rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well
as Proclamation No. 1102 is indispensable to the effectuation of the
reforms within the shortest possible time to hasten the restoration of
normalcy.
"Must the government be too strong for the liberties of the people; or
must it be too weak to maintain its existence?" That was the dilemma
that vexed President Lincoln during the American Civil War, when
without express authority in the Constitution and the laws of the United
States, he suspended one basic human freedom — the privilege of the
writ of habeas corpus — in order to preserve with permanence the
American Union, the Federal Constitution of the United States and all
the civil liberties of the American people. This is the same dilemma that
presently confronts the Chief Executive of the Republic of the
Philippines, who, more than the Courts and Congress, must, by
express constitutional mandate, secure the safety of our Republic and
the rights as well as lives of the people against open rebellion,
insidious subversion secession. The Chief Executive announced
repeatedly that in choosing to proclaim martial law, the power
expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII,
1935 Constitution) to insure our national and individual survival in
peace and freedom, he is in effect waging a peaceful, democratic
revolution from the center against the violent revolution and subversion
being mounted by the economic oligarchs of the extreme right, who
resist reforms to maintain their economic hegemony, and the
communist rebels a Maoist oriented secessionists of the extreme left
who demand swift institution of reforms. In the exercise of his
constitutional and statutory powers, to save the state and to protect the
citizenry against actual and threatened assaults from insurgents,
secessionists and subversives, doctrinaire concepts and principles, no
matter how revered they may be by jurisprudence and time, should not
be regarded as peremptory commands; otherwise the dead hand of the
past will regulate and control the security and happiness of the living
present. A contrary view would be to deny the self-evident proposition
that constitutions and laws are mere instruments for the well-being,
peace, security and prosperity of the country and its citizenry. The law
as a means of social control is not static but dynamic. Paraphrasing
Mr. Justice Frankfurter, the Constitution is neither a printed finality nor
the imprisonment of the past, but the enfolding of the future. In the vein
of Mr. Justice Holmes, the meaning of the words of the Constitution is
not to be determined by merely opening a dictionary. Its terms must be
construed in the context of the realities in the life of a nation it is
intended to serve. Because experience may teach one generation to
doubt the validity and efficacy of the concepts embodied in the existing
Constitution and persuade another generation to abandon them
entirely, heed should be paid to the wise counsel of some learned
jurists that in the resolution of constitutional questions — like those
posed before Us — the blending of idealism and practical wisdom or
progressive legal realism should be applied (see Alexander M. Bickel,
the Supreme Court and the Idea of Progress, 1970 ed., pp. 19-21). To
Justice Frankfurter, law is "a vital agency for human betterment" and
constitutional law "is applied politics using the word in its noble sense."
(Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied).
Justice Brandeis gave utterance to the truth that "Our Constitution is
not a straight jacket. It is a living organism. As such, it is capable of
growth — or expansion and adaptation to new conditions. Growth
implies changes, political, economic and social." (Brandeis Papers,
Harvard Law School; emphasis supplied). Harvard Professor Thomas
Reed Powell emphasizes "practical wisdom," for "the logic of
constitutional law is the common sense of the Supreme Court."
(Powell, the Validity of State Legislation, under the Webb-Kenyon Law,
2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus,
supra; emphasis supplied).
155
The eternal paradox in this finite world of mortal and fallible men is that
nothing is permanent except change. Living organisms as well as man-
made institutions are not immutable. Civilized men organize
themselves into a State only for the purpose of serving their supreme
interest — their welfare. To achieve such end, they created an agency
known as the government. From the savage era thru ancient times, the
Middle Ages, the Dark Ages and the Renaissance to this era of
sophisticated electronics and nuclear weaponry, states and
governments have mutated in their search for the magic instrument for
their well-being. It was trial and error then as it is still now. Political
philosophies and constitutional concepts, forms and kinds of
government, had been adopted, overturned, discarded, re-adopted or
modified to suit the needs of a given society at a particular given
epoch. This is true of constitutions and laws because they are not "the
infallible instruments of a manifest destiny." No matter how we want the
law to be stable, it cannot stand still. As Mr. Justice Holmes aptly
observed, every "constitution is an experiment as all life is an
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the
law is not logic, but experience." In the pontifical tones of Mr. Justice
Benjamin Nathan Cardozo, "so long as society is inconstant, there can
be no constancy in law," and "there will be change whether we will it or
not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-
like, command the waves of progress to halt."
Thus, political scientists and jurists no longer exalt with vehemence a
"government that governs least." Adherents there are to the poetic
dictum of Alexander Pope: "For forms of government let fools contest;
whatever is best administered is best." (Poems of Pope, 1931
Cambridge ed., p. 750). In between, the shades vary from direct
democracy, representative democracy, welfare states, socialist
democracy, mitigated socialism, to outright communism which
degenerated in some countries into totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated
to factual situations in the seclusion of his ivory tower, must perforce
submit to the inexorable law of change in his views, concepts, methods
and techniques when brought into the actual arena of conflict as a
public functionary — face to face with the practical problems of state,
government and public administration. And so it is that some learned
jurists, in the resolution of constitutional issues that immediately affect
the lives, liberties and fortunes of the citizens and the nation,
recommend the blending of idealism with practical wisdom which legal
thinkers prefer to identify as progressive legal realism. The national
leader, who wields the powers of government, must and has to
innovate if he must govern effectively to serve the supreme interests of
the people. This is especially true in times of great crises where the
need for a leader with vision, imagination, capacity for decision and
courageous action is greater, to preserve the unity of people, to
promote their well-being, and to insure the safety and stability of the
Republic. When the methods of rebellion and subversion have become
covert, subtle and insidious, there should be a recognition of the
corresponding authority on the part of the Commander-in-Chief of the
Armed Forces to utilize all the available techniques to suppress the
peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding
fathers of the American Constitution and former President of the United
States, who personifies the progressive liberal, spoke the truth when
he said that some men "ascribe men of the preceding age a wisdom
more than human, and suppose what they did to be beyond
amendment. ... But I know also, that laws and institutions must go hand
in hand with the progress of the human mind. As that becomes more
developed, more enlightened, as new discoveries are made, new
truths disclosed and manners and opinions change, with the change of
circumstances, institutions must also advance, and keep pace with the
times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged
in the perspective of history. It cannot be adequately and fairly
appraised within the present ambience, charged as it is with so much
tension and emotion, if not partisan passion. The analytical, objective
historians will write the final verdict in the same way that they
pronounced judgment on President Abraham Lincoln who suspended
the privilege of the writ of habeas corpus without any constitutional or
statutory authority therefor and of President Franklin Delano Roosevelt
who approved the proclamation of martial law in 1941 by the governor
of Hawaii throughout the Hawaiian territory. President Lincoln not only
emancipated the Negro slaves in America, but also saved the Federal
Republic of the United States from disintegration by his suspension of
the privilege of the writ of habeas corpus, which power the American
Constitution and Congress did not then expressly vest in him. No one
can deny that the successful defense and preservation of the territorial
integrity of the United States was due in part, if not to a great extent, to
the proclamation of martial law over the territory of Hawaii — main
bastion of the outer periphery or the outpost of the American defense
perimeter in the Pacific — which protected the United States mainland
not only from actual invasion but also from aerial or naval
bombardment by the enemy. Parenthetically, the impartial observer
cannot accurately conclude that the American Supreme Court acted
with courage in its decision in the cases of Ex parte Milligan and
Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to
13, 1866, decided on April 3, 1866, and opinion delivered on
December 17, 1866) after the lifting of the proclamation suspending the
privilege of the writ of habeas corpus, long after the Civil War and the
Second World ended respectively on April 9 or 26, 18-65 (Vol. 1,
Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2,
1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was the
delay on the part of the American Supreme Court in deciding these
cases against the position of the United States President — in
suspending the privilege of the writ of habeas corpus in one case and
approving the proclamation of martial law in the other — deliberate as
an act of judicial statesmanship and recognition on their part that an
adverse court ruling during the period of such a grave crisis might
jeopardize the survival of the Federal Republic of the United States in
its life-and-death struggle against an organized and well armed
rebellion within its own borders and against a formidable enemy from
without its territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES
MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil
Puyat and Jose Roy to convene the Senate of the Philippines even on
the assumption that the 1935 Constitution still subsists; because
pursuant to the doctrine of separation of powers under the 1935
Constitution, the processes of this Court cannot legally reach a
coordinate branch of the government or its head. This is a problem that
is addressed to the Senate itself for resolution; for it is purely an
internal problem of the Senate. If a majority of the senators can
convene, they can elect a new Senate President and a new Senate
President Pro Tempore. But if they have no quorum, those present can
order the arrest of the absent members (Sec. 10[2], Art. VI, 1935
Constitution). If this fails, then there is no remedy except an appeal to
the people. The dictum ubi jus, ubi remedium, is not absolute and
certainly does not justify the invocation of the power of this Court to
compel action on the part of a co-equal body or its leadership. This
was emphasized with sufficient clarity by this Court in the 1949 case of
Avelino vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished
counsels for the petitioners in L-36164 and L-36165 are familiar. We
stress that the doctrine of separation of powers and the political nature
of the controversy such as this, preclude the interposition of the
Judiciary to nullify an act of a coordinate body or to command
performance by the head of such a co-ordinate body of his functions..
Mystifying is the posture taken by counsels for petitioners in referring to
the political question doctrine — almost in mockery — as a magic
formula which should be disregarded by this Court, forgetting that this
magic formula constitutes an essential skein in the constitutional fabric
of our government, which, together with other basic constitutional
precepts, conserves the unity of our people, strengthens the structure
of the government and assures the continued stability of the country
against the forces of division, if not of anarchy.
Moreover, if they have a quorum, the senators can meet anywhere.
Validity of the acts of the Senate does not depend on the place of
session; for the Constitution does not designate the place of such a
meeting. Section 9 of Article VI imposes upon Congress to convene in
regular session every year on the 4th Monday of January, unless a
different date is fixed by law, or on special session called by the
President. As former Senator Arturo Tolentino, counsel for respondents
Puyat and Roy in L-36165, stated, the duty to convene is addressed to
all members of Congress, not merely to its presiding officers. The fact
that the doors of Congress are padlocked, will not prevent the senators
— especially the petitioners in L-36165 — if they are minded to do so,
from meeting elsewhere — at the Sunken Gardens, at the Luneta
Independence Grandstand, in any of the big hotels or theaters, in their
own houses, or at the Araneta Coliseum, which is owned by the father-
in-law of petitioner Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise
in futility, for it cannot validly meet without the lower House (Sec. 10[5],
Art. VI, 1935 Constitution). Hence, this petition by five former senators
for mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for
respondents Puyat and Roy, mandamus will lie only if there is a law
imposing on the respondents the duty to convene the body. The rule
imposing such a duty invoked by petitioners in L-36165 is purely an
internal rule of the Senate; it is not a law because it is not enacted by
both Houses and approved by the President.
The Constitutional provision on the convening of Congress, is
addressed to the individual members of the legislative body (Sec. 9,
Art. VI of 1935 Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973
CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a
declaration that the alleged ratification of the 1973 Constitution is null
156
and void and that the said 1973 Constitution be declared
unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the
President as Commander-in-Chief during martial law as directly
delegated to him by Section 10(2) of Article VII of the 1935
Constitution.
A declaration that the 1973 Constitution is unenforceable and
inoperative is practically deciding that the same is unconstitutional. The
proposed Constitution is an act of the Constitutional Convention, which
is co-equal and coordinate with as well as independent of either
Congress or the Chief Executive. Hence, its final act, the 1973
Constitution, must have the same category at the very least as the act
of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and
the 1973 Constitution should be eight (8) under Section 10 of Article
VIII of the 1935 Constitution in relation to Section 9 of the Judiciary Act
or Republic Act No. 296, as amended, or should be ten (10) under
Section 2(2) of Article X of the 1973 Constitution. Should the required
vote of eight (8) or ten (10), as the case may be, for the declaration of
invalidity or unconstitutionality be not achieved, the 1973 Constitution
must be deemed to be valid, in force and operative.
X
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like
Thomas Jefferson, We swear "eternal hostility towards any form of
tyranny over the mind of man" as well as towards bigotry and
intolerance, which are anathema to a free spirit. But human rights and
civil liberties under a democratic or republican state are never absolute
and never immune to restrictions essential to the common weal. A
civilized society cannot long endure without peace and order, the
maintenance of which is the primary function of the government.
Neither can civilized society survive without the natural right to defend
itself against all dangers that may destroy its life, whether in the form of
invasion from without or rebellion and subversion from within. This is
the first law of nature and ranks second to none in the hierarchy of all
values, whether human or governmental. Every citizen, who prides
himself in being a member or a civilized society under an established
government, impliedly submits to certain constraints on his freedom for
the general welfare and the preservation of the State itself, even as he
reserves to himself certain rights which constitute limitations on the
powers of government. But when there is an inevitable clash between
an exertion of governmental authority and the assertion of individual
freedom, the exercise of which freedom imperils the State and the
civilized society to which the individual belongs, there can be no
alternative but to submit to the superior right of the government to
defend and preserve the State. In the language of Mr. Justice Holmes
— often invoked by herein petitioners — "when it comes to a decision
involving its (state life, the ordinary rights of individuals must yield to
what he (the President) deems the necessities of the moment. Public
danger warrants the substitution of executive process for judicial
process. (See Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328).
This was admitted with regard to killing men in the actual clash of
arms. And we think it is obvious, although it was disputed, that the
same is true of temporary detention to prevent apprehended harm."
(Moyer vs. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of
freedom with order and security for all, that should be the shibboleth;
for freedom cannot be enjoyed in an environment of disorder and
anarchy.
The incumbent Chief Executive who was trying to gain the support for
his reform program long before September 21, 1972, realized almost
too late that he was being deceived by his partymates as well as by the
opposition, who promised him cooperation, which promises were either
offered as a bargaining leverage to secure concessions from him or to
delay the institution of the needed reforms. The people have been
victimized by such bargaining and dilly-dallying. To vert a terrifying
blood bath and the breakdown of the Republic, the incumbent
President proclaimed martial law to save the Republic from being
overrun by communists, secessionists and rebels by effecting the
desired reforms in order to eradicate the evils that plague our society,
which evils have been employed by the communists, the rebels and
secessionists to exhort the citizenry to rise against the government. By
eliminating the evils, the enemies of the Republic will be decimated.
How many of the petitioners and their counsels have been utilizing the
rebels, secessionists and communists for their own personal or political
purposes and how many of them are being used in turn by the
aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the
greater mass of the populace, more than for their own selves, they
should be willing to give the incumbent Chief Executive a chance to
implement the desired reforms. The incumbent President assured the
nation that he will govern within the framework of the Constitution and
if at any time, before normalcy is restored, the people thru their
Citizens' Assemblies, cease to believe in his leadership, he will step
down voluntarily from the Presidency. But if, as apprehended by the
petitioners, he abuses and brutalizes the people, then to the
battlements we must go to man the ramparts against tyranny. This, it is
believed, he knows only too well; because he is aware that he who
rides the tiger will eventually end inside the tiger's stomach. He who
toys with revolution will be swallowed by that same revolution. History
is replete with examples of libertarians who turned tyrants and were
burned at stake or beheaded or hanged or guillotined by the very
people whom they at first championed and later deceived. The most
bloody of such mass executions by the wrath of a wronged people,
was the decapitation by guillotine of about 15,000 Frenchmen including
the leaders of the French revolution, like Robespierre, Danton,
Desmoulins and Marat. He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive
Officers from implementing the Constitution signed on November 30,
1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy,
President and President Pro-Tempore, respectively, of the Senate
under the 1935 Constitution, to convene the Senate in regular session
which should have started on January 22, 1973; to nullify Proclamation
No. 1102 of the President, issued on January 17, 1973, which declared
the ratification of the Constitution on November 30, 1972, by the
Filipino people, through the barangays or Citizens Assemblies
established under Presidential Decree No. 86 issued on December 31,
1972, which were empowered under Presidential Decree No. 86-A,
issued on January 5, 1973, to act in connection with the ratification of
said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for
the making of a Constitution after the declaration of Martial Law on
September 21, 1972.
2. The Convention was not empowered to incorporate certain
provisions in the 1972 Constitution because they are highly unwise and
objectionable and the people were not sufficiently informed about
them.
3. The President had no authority to create and empower the
Citizens' Assemblies to ratify the new Constitution at the referendum
conducted in connection therewith, as said assemblies were merely for
consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution
prescribing the manner of amending the same were not duly observed.
The petitions were not given due course immediately but were referred
to the Solicitor General as counsel for the respondents for comment,
with three members of the Court, including the undersigned, voting to
dismiss them outright. The comments were considered motions to
dismiss which were set for hearing and extensively argued. Thereafter
both parties submitted their notes and memoranda on their oral
arguments.
I.
The issues raised for determination, on which the resolution of the
Motion to Dismiss hinges, are as follows:
1. Is the question presented political and, hence, beyond the
competence of this Court to decide, or is it justiciable and fit for judicial
determination?
2. Was the new Constitution of November 30, 1972, ratified in
accordance with the amending process prescribed by Article XV of the
1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in by the
Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are
petitioners entitled to the reliefs prayed for?
II.
The pivotal question in these cases is whether the issue raised is
highly political and, therefore, not justiciable. I maintain that this Court
should abstain from assuming jurisdiction, but, instead, as an act of
judicial statesmanship, should dismiss the petitions. In resolving
whether or not the question presented is political, joint discussion of
issues Nos. 1, 3 and 4 is necessary so as to arrive at a logical
conclusion. For after the acceptance of a new Constitution and
acquiescence therein by the people by putting it into practical
operation, any question regarding its validity should be foreclosed and
all debates on whether it was duly or lawfully ushered into existence as
157
the organic law of the state become political and not judicial in
character.
The undisputed facts that led to the issuance of Proclamation No. 1102
and Presidential Decrees Nos. 86 and 86-A are fully set forth in the
majority and dissenting opinions in the Plebiscite cases decided on
January 22, 1973, and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and
Presidential Decrees Nos. 86 and 86-A, claiming that the ratification of
the new Constitution pursuant to the said decrees is invalid and of no
effect. Presidential Decree No. 86 organized the barangays or Citizens
Assemblies composed of all citizens at least fifteen years of age, and
through these assemblies the proposed 1972 Constitution was
submitted to the people for ratification. Proclamation No. 1102 of the
President announced or declared the result of the referendum or
plebiscite conducted through the Citizens Assemblies, and that
14,976,561 members thereof voted for the ratification of the new
Constitution and 743,869 voted against it. Petitioners assail these two
acts of the President as unauthorized and devoid of legal effect.
But looking through the veneer of judicial conformity with which the
petitions have been adroitly contrived, what is sought to be invalidated
is the new Constitution itself — the very framework of the present
Government since January 17, 1973. The reason is obvious. The
Presidential decrees set up the means for the ratification and
acceptance of the new Constitution and Proclamation No. 1102 simply
announced the result of the referendum or plebiscite by the people
through the Citizens Assemblies. The Government under the new
Constitution has been running on its tracks normally and apparently
without obstruction in the form of organized resistance capable of
jeopardizing its existence and disrupting its operation. Ultimately the
issue is whether the new Constitution may be set aside by this Court.
But has it the power and authority to assume such a stupendous task
when the result of such invalidation would be to subject this nation to
divisive controversies that may totally destroy the social order which
the Government under the new Constitution has been admirably
protecting and promoting under Martial Law? That the new Constitution
has taken deep root and the people are happy and contended with it is
a living reality which the most articulate critics of the new order cannot
deny. 95 out of 108 members of the House of Representatives have
opted to serve in the interim National Assembly provided for under the
new Constitution. 15 out of 24 Senators have done likewise. The
members of the Congress did not meet anymore last January 22,
1973, not because they were really prevented from so doing but
because of no serious effort on their parts to assert their offices under
the 1935 Constitution. In brief, the Legislative Department under the
1935 Constitution is a thing of the past. The Executive Department has
been fully reorganized; the appointments of key executive officers
including those of the Armed Forces were extended and they took an
oath to support and defend the new Constitution. The courts, except
the Supreme Court by reason of these cases, have administered
justice under the new constitution. All government offices have dealt
with the public and performed their functions according to the new
Constitution and laws promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution,
how can this Court justify its assumption of jurisdiction when no power
has ... conferred upon it the jurisdiction to declare the Constitution or
any part thereof null and void? It is the height of absurdity and
impudence for a court to wage open war against the organic act to
which it owes its existence. The situation in which this Court finds itself
does not permit it to pass upon the question whether or not the new
Constitution has entered into force and has superseded the 1935
Constitution. If it declares that the present Constitution has not been
validly ratified, it has to uphold the 1935 Constitution as still the
prevailing organic law. The result would be too anomalous to describe,
for then this Court would have to declare that it is governed by one
Constitution or the 1935 Constitution, and the legislative and executive
branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it
exercise judicial discretion in these cases when it would have no other
choice but to uphold the new Constitution as against any other one? In
the circumstances it would be bereft of judicial attributes as the matter
would then be not meet for judicial determination, but one addressed to
the sovereign power of the people who have already spoken and
delivered their mandate by accepting the fundamental law on which the
government of this Republic is now functioning. To deny that the new
Constitution has been accepted and actually is in operation would be
flying in the face of reason and pounding one's bare head against a
veritable stone wall or a heavily reinforced concrete, or simply "kicking
the deadly pricks" with one's bare foot in an effort to eliminate the lethal
points.
When a Constitution has been in operation for sometime, even without
popular ratification at that, submission of the people thereto by the
organization of the government provided therein and observance of its
prescriptions by public officers chosen thereunder, is indicative of
approval. Courts should be slow in nullifying a Constitution claimed to
have been adopted not in accordance with constitutional or statutory
directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs
Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204,
207; Wiston vs. Ryan, 70 Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:
... But it is a case where a new constitution has been formed and
promulgated according to the forms of law. Great interests have
already arisen under it; important rights exist by virtue of it; persons
have been convicted of the highest crimes known to the law, according
to its provisions; the political power of the government has in many
ways recognized it; and, under such circumstances, it is our duty to
treat and regard it as a valid constitution, and now the organic law of
our state. We need not consider the validity of the amendments made
after the convention reassembled. If the making of them was in excess
of its power, yet as the entire instrument has been recognized as valid
in the manner suggested, it would be equally an abuse of power by the
judiciary, and violative of the rights of the people, — who can and
properly should remedy the matter, if not to their liking, — if it were to
declare the instrument or a portion invalid, and bring confusion and
anarchy upon the state. (Emphasis supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from entering upon such an
inquiry when applied to a new constitution, and not an amendment,
because the judicial power presupposes an established government,
and if the authority of that government is annulled and overthrown, the
power of its courts is annulled with it; therefore, if a state court should
enter upon such an inquiry, come to the conclusion that the
government under which it acted had been displaced by an opposing
government, it would cease to be a court, and it would be incapable of
pronouncing a judicial decision upon the question before it; but, if it
decides at all, it must necessarily affirm the existence of the
government under which it exercises its judicial powers. (Emphasis
supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12
L. Ed. 581, 598 (1849) where it was held:
Judicial power presupposes an established government capable of
enacting laws and enforcing their execution, and appointing judges to
expound and administer them. The acceptance of the judicial office is a
recognition of the authority of government from which it is derived. And
if the authority of the government is annulled and overthrown, the
power of its courts and other officers is annulled with it. And if a State
court should enter upon the inquiry proposed in this case, and should
come to conclusion that the government under which it acted had been
put aside and displaced by an opposing government it would cease to
be a court, and be incapable of pronouncing a judicial decision upon
the question it undertook to try. If it decides at all as a court, it
necessarily affirms the existence and authority of the government
under which it is exercising judicial power.
The foreign relations of the Republic of the Philippines have been
normally conducted on the basis of the new Constitution and no state
with which we maintain diplomatic relations has withdrawn its
recognition of our government. (For particulars about executive acts
done under the new Constitution, see pages 22-25 of the Comments of
the Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential
Decrees Nos. 86 and 86-A by this Court would smack of plain political
meddling which is described by the United States Supreme Court as
"entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At
this juncture it would be the part of wisdom for this Court to adopt the
proper attitude towards political upheavals and realize that the question
before Us is political and not fit for judicial determination. For a political
question is one entrusted to the people for judgment in their sovereign
capacity (Tañada vs. Cuenco, G.R. No. L-10520, Feb. 28,1967; 100
Phil. 1101), or to a co-equal and coordinate branch of the Government
(Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1;
Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No.
4638, May 8, 1931). A case involves a political question when there
would be "the impossibility of undertaking independent resolutions
without expressing a lack of respect due to coordinate branches of
government", or when there is "the potentiality of embarrassment from
multifarious pronouncements by various departments on one question."
To preserve the prestige and eminence that this Court has long
enjoyed as the "ultimate organ of the "Supreme Law of the Land" in
that vast range of legal problems often strongly entangled in popular
feeling on which this Court must pronounce", let us harken to the
following admonition of Justice Frankfurter in his dissent in Baker vs.
Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
The Court's authority — possessed neither of the purse nor the sword
— ultimately rests on sustained public confidence in its moral sanction.
Such feeling must be nourished by the Court's complete detachment,
in fact and appearance, from political entanglements and abstention
from injecting itself into the clash of political forces in political
settlement. ..." (Emphasis supplied)
158
The people have accepted and submitted to a Constitution to replace
the 1935 Constitution. The new organic law is now in the plenitude of
its efficacy and vigor. We are now living under its aegis and protection
and only the cynics will deny this. This Court should not in the least
attempt to act as a super-legislature or a super-board of canvassers
and sow confusion and discord among our people by pontificating
there was no valid ratification of the new Constitution. The sober
realization of its proper role and delicate function and its
consciousness of the limitations on its competence, especially
situations like this, are more in keeping with the preservation of our
democratic tradition than the blatant declamations of those who wish
the Court to engage in their brand of activism and would not mind
plunging it into the whirlpool of passion and emotion in an effort to
capture the intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether
or not the Constitution proposed by the Constitutional Convention of
1971 had been ratified in accordance with the provisions of Article XV
of the 1935 Constitution. In the plebiscite cases, which were decided
by this Court on January 22, 19731, I held the view that this issue
could be properly resolved by this Court, and that it was in the public
interest that this Court should declare then whether or not the
proposed Constitution had been validly ratified. The majority of this
Court, however, was of the view that the issue was not squarely raised
in those cases, and so the Court, as a body, did make any categorical
pronouncement on the question of whether or not the Constitution
proposed by the 1971 Convention was validly ratified. I was the only
one who expressed the opinion that the proposed Constitution was not
validly ratified and therefore "it should not be given force and effect."
The Court is now called upon to declare, and to inform the people of
this country, whether or not that proposed Constitution had been validly
ratified and had come into effect.
The Solicitor General, however, contends that this Court has no
jurisdiction to resolve the issue that we have mentioned because that
issue is a political question that cannot be decided by this Court. This
contention by the Solicitor General is untenable. A political question
relates to "those questions which under the Constitution are to be
decided by the people in their sovereign capacity or in regard to which
full discretionary authority has been delegated to the legislative, or to
the executive, branch of the government.2 The courts have the power
to determine whether the acts of the executive are authorized by the
Constitution and the laws whenever they are brought before the court
in a judicial proceeding. The judicial department of the government
exercises a sort of controlling, or rather restraining, power over the two
other departments of the government. Each of the three departments,
within its proper constitutional sphere, acts independently of the other,
and restraint is only placed on one department when that sphere is
actually transcended. While a court may not restrain the executive from
committing an unlawful act, it may, when the legality of such an act is
brought before it in a judicial proceeding, declare it to be void, the
same as it may declare a law enacted by the legislature to be
unconstitutional.3 It is a settled doctrine that every officer under a
constitutional government must act according to law and subject to its
restrictions, and every departure therefrom, or disregard thereof, must
subject him to the restraining and controlling power of the people,
acting through the agency of the judiciary. It must be remembered that
the people act through the courts, as well as through the executive or
the legislature. One department is just as representative as the other,
and judiciary is the department which is charged with the special duty
of determining the limitations which the law places upon all official
actions4 . In the case of Gonzales v. Commission on Elections5, this
Court ruled that the issue as to whether or not a resolution of Congress
acting as a constituent assembly violates the Constitution is not a
political question and is therefore subject to judicial review. In the case
of Avelino v. Cuenco6, this Court held that the exception to the rule
that courts will not interfere with a political question affecting another
department is when such political question involves an issue as to the
construction and interpretation of the provision of the constitution. And
so, it has been held that the question of whether a constitution shall be
amended or not is a political question which is not in the power of the
court to decide, but whether or not the constitution has been legally
amended is a justiciable question.7
My study on the subject of whether a question before the court is
political or judicial, based on decisions of the courts in the United
States — where, after all, our constitutional system has been patterned
to a large extent — made me arrive at the considered view that it is in
the power of this Court, as the ultimate interpreter of the Constitution,
to determine the validity of the proposal, the submission, and the
ratification of any change in the Constitution. Ratification or non-
ratification of a constitutional amendment is a vital element in the
procedure to amend the constitution, and I believe that the Court can
inquire into, and decide on, the question of whether or not an
amendment to the constitution, as in the present cases, has been
ratified in accordance with the requirements prescribed in the
Constitution that was amended. And so, in the cases now before Us, I
believe that the question of whether or not the Constitution proposed
by the 1971 Constitutional Convention had been validly ratified or not is
a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on
whether or not, the cases, before Us involve a political, or a judicial,
question. I fully concur with his conclusion that the question involved in
these cases is justiciable.
On the question now of whether or not the Constitution proposed by
the 1971 Constitutional Convention has been validly ratified, I am
reproducing herein pertinent portions of my dissenting opinion in the
plebiscite cases:
The ratification of the Constitution proposed by the 1971 Constitutional
Convention must be done in accordance with the provisions of Section
1, Article XV of the 1935 Constitution of the Philippines, which reads:
"Section 1. The Congress in joint session assembled by a
vote of three fourths of all the Members of the Senate and of the House
of Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are submitted
to the people for their ratification."
It is in consonance with the abovequoted provision of the 1935
Constitution that on March 16, 1967, the Congress of the Philippines
Resolution No. 2 calling a convention to propose amendments to the
Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads
as follows:
"Section 7. The amendments proposed by the Convention
shall be valid and considered part of the Constitution when approved
by a majority of the votes cast in an election at which they are
submitted to the people for their ratification pursuant to Article XV of
the Constitution.
It follows that from the very resolution of the Congress of the
Philippines which called for the 1971 Constitutional Convention, there
was a clear mandate that the amendments proposed by the 1971
Convention, in order to be valid and considered part of the
Constitution, must be approved by majority of the votes cast in an
election at which they are submitted to the people for the ratification as
provided in the Constitution.
This Court, in the case of Tolentino vs. Commission Elections, L-
35140, October 16, 1971 (41 SCRA 715), speaking through Mr. Justice
Barredo, said:
"The Constitutional Convention of 1971, as any other convention of the
same nature, owes its existence and all its authority and power from
the existing Constitution of the Philippines. This Convention has not
been called by the people directly as in the case of a revolutionary
convention which drafts the first Constitution of an entirely new
government born of either a war of liberation from a mother country or
of revolution against an existing government or of a bloodless seizure
of power a la coup d'etat. As to such kind of conventions, it is
absolutely true that the convention is completely without restraint and
omnipotent all wise, and it as to such conventions that the remarks of
Delegate Manuel Roxas of the Constitutional Convention of 1934
quoted by Senator Pelaez refer. No amount of rationalization can belie
the fact that the current convention came into being only because it
was called by a resolution of a joint session of Congress acting as a
constituent assembly by authority of Section 1, Article XV of the
present Constitution ... ."
xxx xxx xxx
"As to matters not related to its internal operation and the performance
of its assigned mission to propose amendments to the Constitution, the
Convention and its officers and members are all subject to all the
provisions of the existing Constitution. Now we hold that even as to its
latter task of proposing amendments to the Constitution, it is subject to
the provisions of Section 1 of Article XV."
In Proclamation No. 1102, issued on January 17, 1973, the President
of the Philippines certified that as a result of the voting before the
barangays (Citizens Assemblies) 14,976,561 members of the
barangays voted for the adoption of the proposed Constitution, as
against 743,869 who voted for its rejection, and on the basis of the
overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines, the President proclaimed that
the Constitution proposed by the 1971 Convention has been ratified
and has thereby come into effect.
It is very plain from the very wordings of Proclamation No. 1102 that
the provisions of Section 1 of Article XV of the Constitution of 1935
were not complied with. It is not necessary that evidence be produced
before this Court to show that no elections were held in accordance
with the provisions of the Election Code. Proclamation No. 1102
unequivocally states that the proposed Constitution of 1972 was voted
upon by the barangays. It is very clear, therefore, that the voting held in
these barangays is not the election contemplated in the provisions of
159
Section 1, Article XV, of the 1935 Constitution. The election
contemplated in said constitutional provision is an election held in
accordance with the provisions of the election law, where only the
qualified and registered voters of the country would cast their votes,
where official ballots prepared for the purpose are used, where the
voters would prepare their ballots in secret inside the voting booths in
the polling places established in the different election precincts
throughout the country, where the election is conducted by election
inspectors duly appointed in accordance with the election law, where
the votes are canvassed and reported in a manner provided for in the
election law. It was this kind of election that was held on May 14, 1935,
when the Constitution of 1935 was ratified; on April 30, 1937, when the
amendment to the Constitution providing for Women's Suffrage was
ratified; on June 18, 1940, when the 1940 Amendments to the
Constitution were ratified; on March 11, 1947 when the Parity
Amendment to the Constitution was ratified; and on November 14,
1967 when the amendments to the Constitution to increase the number
of Members of the House of Representatives and to allow the
Members of Congress to run in the elections for Delegates to the
Constitutional Convention of 1971 were rejected.
I cannot see any valid reason why the practice or procedure in the
past, in implementing the constitutional provision requiring the holding,
of an election to ratify or reject an amendment to the Constitution, has
not been followed in the case of the Constitution proposed by the 1971
Constitutional Convention.
It is my view that the President of the Philippines cannot by decree
order the ratification of the proposed 1972 Constitution thru a voting in
the barangays and make said result the basis for proclaiming the
ratification of the proposed constitution. It is very clear, to me, that
Proclamation No. 1102 was issued in complete disregard or in
violation, of the provisions of Section 1 of Article X of the 1935
Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as
to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, 14,298,814 members of the barangays
answered that there was no need for a plebiscite but that the vote of
the barangays should be considered a vote in a plebiscite. It would
thus appear that the barangays assumed the power to determine
whether a plebiscite as ordained in the Constitution be held or not.
Indeed, the provision of Section 1, Article XV of the Constitution was
completely disregarded.
The affirmative votes cast in the barangays are not the votes
contemplated in Section 1 of Article XV of the 1935 Constitution. The
votes contemplated in said constitutional provision are votes obtained
through the election processes as provided by law.
"An election is the embodiment of the popular will, the expression of
the sovereign power of the people. In common parlance, an election is
the act of casting and receiving the ballots, counting them, and making
the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).
"Election" implies a choice by an electoral body at the time and
substantially in the manner and with the safeguards provided by law
with respect to some question or issue. (Leffel v. Brown, Com. P1., 159
N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
"... the statutory method whereby qualified voters or electors pass on
various public matters submitted to them — the election of officers,
national, state, county, township — the passing on various other
questions submitted for their determination." (29 C.J.S. 13, citing Iowa-
Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa
358).
"Election" is expression of choice by voters of body politic. (Ginsburg v.
Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases, Permanent
Edition, p. 234).
"The right to vote may be exercised only on compliance with such
statutory requirements as have been set by the legislature." (People ex
rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63; Rothfels v.
Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38).
(Emphasis supplied).
In this connection I herein quote the pertinent provisions of the Election
Code of 1971:
"Sec. 2. Applicability of this Act. — All elections of public officers
except barrio officials and plebiscites shall be conducted in the manner
provided by this Code."
"Sec 99. Necessity of registration to be entitled to vote. — In order
that a qualified voter may vote in any regular or special election or in
any plebiscite, he must be registered in the permanent list of voters for
the city, municipality or municipal district in which he resides: Provided,
that no person shall register more than once without first applying for
cancellation of his previous registration." (Emphasis supplied). (Please
see also Sections 100-102, Election Code of 1971, R.A. No. 6388)
It is stated in Proclamation No. 1102 that the voting was done by the
members of citizens assemblies who are 15 years of age or over.
Under the provision of Section I of Article V of the 1935 Constitution,
the age requirement to be a qualified voter is 21 years or over.
But what is more noteworthy is the fact that the voting in the
barangays, except in very few instances, was done by the raising of
hands by the persons indiscriminately gathered to participate in the
voting, where even children below 15 years of age were included. This
is a matter of common observation, or of common knowledge, which
the Court may take judicial notice of. To consider the votes in the
barangays as expressive of the popular will and use them as the basis
in declaring whether a Constitution is ratified or rejected is to resort to a
voting by demonstrations, which is would mean the rule of the crowd,
which is only one degree higher than the rule by the mob. Certainly, so
important a question as to whether the Constitution, which is the
supreme law of the land, should be ratified or not, must not be decided
by simply gathering people and asking them to raise their hands in
answer to the question of whether the vote for or against a proposed
Constitution. The election as provided by law should be strictly
observed in determining the will of the sovereign people in a
democracy. In our Republic, the will of the people must be expressed
through the ballot in a manner that is provided by law.
It is said that in a democracy, the will of the people is the supreme law.
Indeed, the people are sovereign, but the will of the people must be
expressed in a manner as the law and the demands a well-ordered
society require. The rule of law must prevail even over the apparent will
of the majority of the people, if that will had not been expressed, or
obtained, in accordance with the law. Under the rule of law, public
questions must be decided in accordance with the Constitution and the
law. This is specially true in the case of adoption of a constitution or in
the ratification of an amendment to the Constitution.
The following citations are, to me, very relevant in the effort to
determine whether the proposed Constitution of 1972 had been validly
ratified, or not:
"When it is said that "the people" have the right to alter or amend the
constitution, it must not be understood that term necessarily includes
all the inhabitants of the state. Since the question of the adoption or
rejection of a proposed new constitution or constitutional amendment
must be answered a vote, the determination of it rests with those who,
by existing constitution, are accorded the right of suffrage. But the
qualified electors must be understood in this, as in many other cases,
as representing those who have not the right to participate in the ballot.
If a constitution should be abrogated and a new one adopted, by the
whole mass of people in a state acting through representatives not
chosen by the "people" in political sense of the term, but by the general
body of the populace, the movement would be extra-legal." (BIack's
Constitutional Law, Second Edition, pp. 47-48).
"The theory of our political system is that the ultimate sovereignty is in
the people, from whom springs all legitimate authority. The people of
the Union created a national constitution, and conferred upon it powers
of sovereignty on certain subjects, and the people of each State
created a State government, to exercise the remaining powers of
sovereignty so far as they were disposed to allow them to be exercised
at all. By the constitution which they establish, they not only tie up the
hands of their official agencies, but their own hands as well; and
neither the officers of the State, nor the whole people as an aggregate
body, are at liberty to take action in opposition to this fundamental law."
(Cooley's Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in
Graham v. Jones, 3 So. 2d. 761, 782).
"The theory that a favorable vote by the electorate, however
unanimous, on a proposal to amend a constitution, may cure, render
innocuous, all or any antecedent failures to observe commands of that
Constitution in respect of the formulation or submission of proposed
amendments thereto, does not prevail in Alabama, where the doctrine
of the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome constitutional
principles in Collier v. Frierson, supra, as quoted in the original opinion,
ante. The people themselves are bound by the Constitution; and, being
so bound, are powerless, whatever their numbers, to change or thwart
its mandates, except through the peaceful means of a constitutional
convention, or of an amendment according to the mode therein
prescribed, or through the exertion of the original right of revolution.
"The Constitution may be set aside by revolution, but it can only be
amended in the way it provides," said Hobson, C.J., in McCreary v.
Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson vs. Craft, et al.,
87 So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for the amendment, unless the vote was
taken as provided by the Constitution, is not sufficient to make a
change in that instrument. Whether a proposed amendment has been
legally adopted is a judicial question, for the court must uphold and
enforce the Constitution as written until it is amended in the way which
it provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25 L.R.A.
560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland
Paving Company v. Hilton, 69 Cal. 499, 11 Pac. 3; Utter v. Mosely, 16
Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723.
(McCreary v. Speer, 162 S.W. 99, 104).
160
"Provisions of a constitution regulating its own amendment, ... are not
merely directory, but are mandatory; and a strict observance of every
substantial mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed amendment.
These provisions are as binding on the people as on the legislature,
and the former are powerless by vote of acceptance to give legal
sanction to an amendment the submission of which was made in
disregard of the limitations contained in the constitution." (16 C.J.S. 35-
36. cited in Graham v. Jones, 3 So. 2d 761, 782).
"It is said that chaos and confusion in the government affairs of the
State will result from the Court's action in declaring the proposed
constitutional amendment void. This statement is grossly and
manifestly inaccurate. If confusion and chaos should ensue, it will not
be due to the action of the Court but will be the result of the failure of
the drafters joint resolution to observe, follow and obey the plain
essential provisions of the Constitution. Furthermore, to say that, the
Court disregards its sworn duty to enforce the Constitution, chaos and
confusion will result, is an inherently weak argument in favor of the
alleged constitutionality of the proposed amendment. It is obvious that,
if the Court were to countenance the violations of the sacramental
provisions Constitution, those who would thereafter desire to violate it
disregard its clear mandatory provisions would resort to the scheme of
involving and confusing the affairs of the State then simply tell the
Court that it was powerless to exercise one of its primary functions by
rendering the proper decree to make the Constitution effective."
(Graham v. Jones, 3 So. 2d. 761, 793-794).
In our jurisprudence I find an instance where this Court did not allow
the will of the majority to prevail, because the requirements of the law
were not complied with. In the case of Monsale v. Nico, 83 Phil. 758,
Monsale and Nico were both candidates for the office of Municipal
Mayor of Miagao, Iloilo, in the elections of November 11, 1947.
Monsale had duly filed his certificate of candidacy before the expiration
of the period for the filing of the same. However, on October 10, 1947,
after the period for the filing of the certificate of candidacy, Monsale
withdrew his certificate of candidacy. But on November 7, 1947
Monsale attempted to revive his certificate of candidacy by withdrawing
the withdrawal of certificate of candidacy. The Commission on
Elections, November 8, 1947, ruled that Monsale could no longer be a
candidate. Monsale nevertheless proceeded with his candidacy. The
boards of inspectors in Miagao, however, did not count the votes cast
for Monsale upon the ground that the votes cast for him were stray
votes, because he was considered as having no certificate of
candidacy. On the other hand, the boards of inspectors credited Nico
with 2,291 votes, and Nico was proclaimed elected. Monsale filed a
protest against the election of Nico in the Court of First Instance of
Iloilo. In the count of the ballots during the proceedings in the trial
court, it appeared that Monsale had obtained 2,877 votes while Nico
obtained 2,276 votes, or a margin of 601 votes in favor of Monsale.
The Court of First Instance of Iloilo decided the election protest in favor
of Monsale. Upon appeal by Nico, this Court reversed the decision of
the lower court. This Court declared that because Monsale withdrew
his certificate of candidacy, his attempt to revive it by withdrawing his
withdrawal of his certificate of candidacy did not restore the
effectiveness of his certificate of candidacy, and this Court declared
Nico the winner in spite of the fact that Monsale had obtained more
votes than he.
We have cited this Monsale case to show that the will of the majority of
the voters would not be given effect, as declared by this Court, if
certain legal requirements have not been complied with in order to
render the votes valid and effective to decide the result of an election.
And so, in the cases now before this Court, the fact that the voting in
the citizens assemblies (barangays) is not the election that is provided
for in the 1935 Constitution for the ratification of the amendment to the
Constitution, the affirmative votes cast in those assemblies can not be
made the basis for declaring the ratification of the proposed 1972
Constitution, in spite of the fact that it was reported that 14,976,561
members of the citizens assemblies voted for the adoption as against
743,869 for the rejection, because the votes thus obtained were not in
accordance with the provisions of Section 1 of Article XV of the 1935
Constitution of the Philippines. The rule of law mast be upheld.
My last observation: One of the valid grounds against the holding of the
plebiscite on January 15, 1973, as provided in Presidential Decree No.
73, is that there is no freedom on the part of the people to exercise
their right of choice because of the existence of martial law in our
country. The same ground holds true as regards to the voting of the
barangays on January 10 to 15, 1973. More so, because by General
Order No. 20, issued on January 7, 1973, the President of the
Philippines ordered "that the provisions of Section 3 of Presidential
Decree No. 73 in so far as they allow free public discussion of the
proposed constitution, as well as my order of December 17, 1972
temporarily suspending the effects of Proclamation No. 1081 for the
purpose of free and open debate on the proposed constitution, be
suspended in the meantime." It is, therefore, my view that voting in the
barangays on January 10, 1973 was not free, and so this is one added
reason why the results of the voting in the barangays should not be
made the basis for proclamation of the ratification of the proposed
Constitution.

It is my view, therefore, that Proclamation No. 1102 repugnant to the
1935 Constitution, and so it is invalid, and should not be given effect.
The Constitution of 1972 proposed by the 1971 Constitutional
Convention should be considered as not yet ratified by the people of
this Republic, and so it should not be given force and effect.
It is urged by the Solicitor General, however, that the voting in the
citizens assemblies was a substantial compliance with the provisions of
Article XV of the 1935 Constitution. The Solicitor General maintains
that the primary thrust of the provision of Article XV of the 1935
Constitution is that "to be valid, amendments must gain the approval of
the majority recognition of the democratic postulate that sovereign
resides in the people." It is not disputed that in a democratic
sovereignty resides in the people. But the term "people" must be
understood in its constitutional meaning, and they are "those persons
who are permitted by the Constitution to exercise the elective
franchise."8 Thus, in Section 2 of Article VII of the 1935 Constitution, it
is provided that "the President shall hold his office during a term of four
years and, together with the Vice-President chosen for the same term,
shall be elected by direct vote of the people..." Certainly under that
constitutional provision, the "people" who elect directly the President
and the Vice-President are no other than the persons who, under the
provisions of the same Constitution, are granted the right to vote. In
like manner the provision in Section 1 of Article II of the 1935
Constitution which says "Sovereignty resides in the people and all
government authority emanates from them", the "people" who exercise
the sovereign power are no other than the persons who have the right
to vote under the Constitution. In the case of Garchitorena vs.
Crescini9, this Court, speaking through Mr. Justice Johnson, said, "In
democracies, the people, combined, represent the sovereign power of
the State. Their sovereign authority is expressed through the ballot, of
the qualified voters, in duly appointed elections held from time to time,
by means of which they choose their officials for definite fixed periods,
and to whom they entrust, for the time being, as their representatives,
the exercise of the powers of government." In the case of Moya v. Del
Fierro, 10 this Court, speaking through Mr. Justice Laurel, said, "As
long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form
devised, must continue to be the means by which the great reservoir of
power must be emptied into the receptacular agencies wrought by the
people through their Constitution in the interest of good government
and the common weal. Republicanism, in so far as it implies the
adoption of a representative type of government, necessarily points to
the enfranchised citizen as a particle of popular sovereignty and as the
ultimate source of the established authority." And in the case of Abanil
v. Justice of the Peace of Bacolod, 11 this Court said: "In the scheme
of our present republican government, the people are allowed to have
a voice therein through the instrumentality of suffrage to be availed of
by those possessing certain prescribed qualifications. The people, in
clothing a citizen with the elective franchise for the purpose of securing
a consistent and perpetual administration of the government they
ordain, charge him with the performance of a duty in the nature of a
public trust, and in that respect constitute him a representative of the
whole people. This duty requires that the privilege thus bestowed
exclusively for the benefit of the citizen or class of citizens professing it,
but in good faith and with an intelligent zeal for the general benefit and
welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no
question, therefore, that when we talk of sovereign people, what is
meant are the people who act through the duly qualified and registered
voters who vote during an election that is held as provided in the
Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935
Constitution should be construed along with the term "election" as used
in the Provisions of Section 4 of the Philippine Independence Act of the
Congress of the United States, popularly known as the Tydings-
McDuffie Law (Public Act No. 127). Said Section 4 of the Tydings-
McDuffie Law provides as follows:
Section 4. After the President of the United States certified that the
constitution conforms with the provisions of this act, it shall be
submitted to the people of the Philippine Islands for their ratification or
rejection at an election to he held within months after the date of such
certification, on a date to be fixed by the Philippine Legislature at which
election, the qualified voters of the Philippine Islands shall have an
opportunity to vote directly or against the proposed constitution and
ordinances append thereto. Such election shall be held in such manner
as may prescribed by the Philippine Legislature to which the return of
the election shall be made. The Philippine Legislature shall certify the
result to the Governor-General of the Philippine Islands, together with a
statement of the votes cast, and a copy of said constitution ordinances.
If a majority of the votes cast shall be for the constitution, such vote
shall be deemed an expression of the will of the people of the
Philippine Independence, and the Governor-General shall, within thirty
days after receipt of the certification from the Philippine Legislature,
issue a proclamation for the election of officers of the government of
the Commonwealth of the Philippine Islands provided for in the
Constitution...
It can safely be said, therefore, that when the framers of the 1935
Constitution used, the word "election" in Section I Article XV of the
1935 Constitution they had no other idea in mind except the elections
161
that were periodically held in the Philippines for the choice of public
officials prior to the drafting of the 1935 Constitution, and also the
"election" mentioned in the Independence Act at which "the qualified
voters of the Philippine Islands shall have an opportunity to vote
directly for or against the proposed constitution..." It is but logical to
expect that the framers of the 1935 Constitution would provide a mode
of ratifying an amendment to that Constitution similar to the mode of
ratifying the original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935
Constitution could only be done by holding an election, as the term
"election" was understood, and practiced, when the 1935 Constitution
as drafted. The alleged referendum in the citizens assemblies —
participated in by persons aged 15 years or more, regardless of
whether they were qualified voters or not, voting by raising their hands,
and the results of the voting reported by the barrio or ward captain, to
the municipal mayor, who in turn submitted the report to the provincial
Governor, and the latter forwarding the reports to the Department of
Local Governments, all without the intervention of the Commission on
Elections which is the constitutional body which has exclusive charge
of the enforcement and administration of all laws, relative to the
conduct of elections — was not only a non-substantial compliance with
the provisions of Section 1 of Article XV of the 1935 Constitution but a
downright violation of said constitutional provision. It would be
indulging in sophistry to maintain that the voting in the citizens
assemblies amounted to a substantial compliance with the
requirements prescribed in Section 1 of Article XV of the 1935
Constitution.
It is further contended by the Solicitor General, that even if the
Constitution proposed by the 1971 Constitutional Convention was not
ratified in accordance with the provisions of Section 1 of Article XV of
the 1935 Constitution, the fact is that after the President of the
Philippines had issued Proclamation No. 1102 declaring that the said
proposed Constitution "has been ratified by overwhelming majority of
all the votes cast by the members of all the barangays (citizens
assemblies) throughout the Philippines and had thereby come into
effect" the people have accepted the new Constitution. What appears
to me, however, is that practically it is only the officials and employees
under the executive department of the Government who have been
performing their duties apparently in observance of the provisions of
the new Constitution. It could not be otherwise, because the President
of the Philippines, who is the head of the executive department, had
proclaimed that the new Constitution had come into effect, and his
office had taken the steps to implement the provisions of the new
Constitution. True it is, that some 92 members of the House of
Representatives and 15 members of the Senate, of the Congress of
the Philippines had expressed their option to serve in the interim
National Assembly that is provided for in Section 2 of Article XVII of the
proposed Constitution. It must be noted, however, that of the 15
senators who expressed their option to serve in the interim National
Assembly only one them took his oath of office; and of the 92 members
of the House of Representatives who opted to serve in the interim
National Assembly, only 22 took their oath of office. The fact that only
one Senator out of 24, and only 22 Representative out of 110, took
their oath of office, is an indication that only a small portion of the
members of Congress had manifested the acceptance of the new
Constitution. It is in the taking of the oath of office where the affiant
says that he swears to "support and defend the Constitution" that the
acceptance of the Constitution is made manifest. I agree with counsel
petitioners in L-36165 (Gerardo Roxas, et al. v. Alejandro Melchor, et
al.) when he said that the members of Congress who opted to serve in
the interim National Assembly did only ex abundante cautela, or by
way of a precaution, making sure, that in the event the new
Constitution becomes definitely effective and the interim National
Assembly convened, they can participate in legislative work in the
capacity as duly elected representatives of the people, which otherwise
they could not do if they did not manifest their option to serve, and that
option had to be made within 30 day from January 17, 1973, the date
when Proclamation No. 110 was issued. Of course, if the proposed
Constitution does not become effective, they continue to be members
of Congress under the 1935 Constitution. Let it be considered that the
members of the House of Representatives were elected in 1969 to
serve a term which will yet expire on December 31, 1973. Whereas, of
the Senators who opted to serve in the interim National Assembly, the
term of some of them will yet expire on December 31, 1973, some on
December 31, 1975, and the rest on December 31, 1977. Let if be
noted that 9 Senators did not opt to serve in the interim National
Assembly, and 18 members of the House of Representatives also did
not opt to serve in the interim National Assembly.
Neither can it be said that the people have accepted the new
Constitution. I cannot, in conscience, accept the reported affirmative
votes in the citizens assemblies as a true and correct expression by
the people of their approval, or acceptance, of the proposed
Constitution. I have my serious doubts regarding the freedom of the
people to express their views regarding the proposed Constitution
during the voting in the citizens assemblies, and I have also my serious
doubts regarding the truthfulness and accuracy of the reports of the
voting in the citizens assemblies. This doubt has been engendered in
my mind after a careful examination and study of the records of these
cases, particularly with respect to the reports of the voting in the
citizens assemblies. Perhaps, it may be said that the people, or the
inhabitants of this country, have acquiesced to the new Constitution, in
the sense that they have continued to live peacefully and orderly under
the government that has been existing since January 17, 1973 when it
was proclaimed that the new Constitution came into effect. But what
could the people do? In the same way that the people have lived under
martial law since September 23, 1972, they also have to live under the
government as it now exists, and as it has existed since the declaration
of martial law on September 21, 1972, regardless of what Constitution
is operative — whether it is the 1935 Constitution or the new
Constitution. Indeed, there is nothing that the people can do under the
circumstances actually prevailing in our country today —
circumstances, known to all, and which I do not consider necessary to
state in this opinion. I cannot agree, therefore, with my worthy
colleagues in the Court who hold the view that the people have
accepted the new Constitution, and that because the people have
accepted it, the new Constitution should be considered as in force,
regardless of the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971
Constitutional Convention has not come into effect. I do not say,
however, that the proposed Constitution is invalid. To me, the validity
of the proposed Constitution is not in issue in the cases before Us.
What the petitioners assail is not the validity of the proposed
Constitution but the validity of Presidential Proclamation No. 1102
which declares the proposed Constitution as having been ratified and
has come into effect. It being my considered view that the ratification of
the proposed Constitution, as proclaimed in Proclamation No. 1102, is
not in accordance with the provisions of Section 1 of Article XV, of the
1935 Constitution, I hold that Proclamation No. 1102 is invalid and
should not be given force and effect. Their proposed Constitution,
therefore, should be considered as not yet validly ratified, and so it is
not in force. The proposed Constitution may still be submitted to a
plebiscite in conformity with Section 1 of Article XV of the 1935
Constitution. Incidentally, I must state that the Constitution is still in
force, and this Court is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted
to the people in an election or plebiscite held in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution. In fact,
as we have adverted to in this opinion, this was the mandate of
Congress when, on March 16, 1967, it passed Resolution No. 2 calling
a convention to propose amendments to the 1935 Constitution. The
Court may take judicial notice of the fact that the President of the
Philippines has reassured the nation that the government of our
Republic since the declaration of martial law is not a revolutionary
government, and that he has been acting all the way in consonance
with his powers under the Constitution. The people of this Republic has
reason to be happy because, according to the President, we still have
a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and
pass a law calling for an election at which the Constitution proposed by
the 1971 Constitutional Convention will be submitted to the people their
ratification or rejection. A plebiscite called pursuant to Section 1 of
Article XV of the 1935 Constitution is an assurance to our people that
we still have in our country the Rule of Law and that the democratic
system of government that has been implanted in our country by the
Americans, and which has become part of our social and political
fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire
on my part to bring about stability in democratic and constitutional
system in our country. I feel that if this Court would give its imprimatur
to the ratification of the proposed Constitution, as announced in
Proclamation No. 1102, it being very clear that the provisions of
Section 1 of Article XV of the 1935 Constitution had not been complied
with, We will be opening the gates for a similar disregard of the
Constitution in the future. What I mean is that if this Court now declares
that a new Constitution is now in force because the members of the
citizens assemblies had approved the said new Constitution, although
that approval was not in accordance with the procedure and the
requirements prescribed in the 1935 Constitution, it can happen again
in some future time that some amendments to the Constitution may be
adopted, even in a manner contrary to the existing Constitution and the
law, and then said proposed amendment is submitted to the people in
any manner and what will matter is that a basis is claimed that there
was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government.
As a member of this Court I only wish to contribute my humble efforts
to prevent the happening of such a situation in the future.
It appearing to me that the announced ratification of the proposed
Constitution through the voting in the citizens assemblies is a clear
violation of the 1935 Constitution, what I say in this opinion is simply an
endeavor on my part to be true to my oath of office to defend and
support the 1935 Constitution. I am inspired by what the great jurist
and statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the purity and
sanctity of our Constitution, and the protection and vindication of
popular rights will be safe and secure in their reverential guardianship.
162
I only wish to help prevent, if I can, democracy and the liberties of our
people from vanishing in our land, because, as Justice George
Sutherland of the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory of a vanished
liberty is that it was lost because its possessors failed to stretch forth a
saving hand while yet there was time.
I concur fully with the personal views expressed by the Chief Justice in
the opinion that he has written in these cases. Along with him, I vote to
deny the motion to dismiss and give due course to the petitions in
these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such
transcendental significance is likely to confront this Court in the near or
distant future as that posed by these petitions. For while the specific
substantive issue is the validity of Presidential Proclamation No. 1102,
an adverse judgment may be fraught with consequences that, to say
the least, are far-reaching in its implications. As stressed by
respondents, "what petitioners really seek to invalidate is the new
Constitution."1 Strict accuracy would of course qualify such statement
that what is in dispute, as noted in the opinion of the Chief Justice,
goes only as far as the validity of its ratification. It could very well be
though that the ultimate outcome is not confined within such limit, and
this is not to deny that under its aegis, there have been marked gains
in the social and economic sphere, but given the premise of continuity
in a regime under a fundamental law, which itself explicitly recognizes
the need for change and the process for bringing it about,2 it seems to
me that the more appropriate course is this Court to give heed to the
plea of petitioners that the most serious attention be paid to their
submission that the challenged executive act fails to meet the test of
constitutionality. Under the circumstances, with regret and with due
respect for the opinion of my brethren, I must perforce dissent. It would
follow therefore that the legal position taken by the Chief Justice as set
forth with his usual lucidity and thoroughness has, on the whole, my
concurrence, subject, of course, to reservations insofar as it contains
views and nuances to which I have in the past expressed doubts.
Nonetheless, I feel that a brief expression of the reasons for the stand I
take would not be amiss.
In coping with its responsibility arising from the function of judicial
review, this Court is not expected to be an oracle given to utterances of
eternal verities, but certainly it is more than just a keen but passive
observer of the contemporary scene. It is, by virtue of its role under the
separation of powers concept, involved not necessarily as a participant
in the formation of government policy, but as an arbiter of its legality.
Even then, there is realism in what Lerner did say about the American
Supreme Court as "the focal point of a set of dynamic forces which
[could play] havoc with the landmarks of the American state and
determine the power configuration of the day."3 That is why there is
this caveat. In the United States as here, the exercise of the power of
judicial review is conditioned on the necessity that the decision of a
case or controversy before it so requires. To repeat, the Justices of the
highest tribunal are not, as Justice Frankfurter made clear, "architects
of policy. They can nullify the policy of others, they are incapable of
fashioning their own solutions for social problems."4 Nonetheless, as
was stressed by Professors Black5 and Murphy,6 a Supreme Court by
the conclusion it reaches and the decision it renders does not merely
check the coordinate branches, but also by its approval stamps with
legitimacy the action taken. Thus in affirming constitutional supremacy,
the political departments could seek the aid of the judiciary. For the
assent it gives to what has been done conduces to its support in a
regime where the rule of law holds sway. In discharging such a role,
this Court must necessarily take in account not only what the exigent
needs of the present demand but what may lie ahead in the unexplored
and unknown vistas of the future. It must guard against the pitfall of
lack of understanding of the dominant forces at work to seek a better
life for all, especially those suffering from the pangs of poverty and
disease, by a blind determination to adhere to the status quo. It would
be tragic, and a clear case of its being recreant to its trust, if the
suspicion can with reason be entertained that its approach amounts
merely to a militant vigilantism that is violently opposed to any form of
social change. It follows then that it does not suffice that recourse be
had only to what passes for scholarship in the law that could be marred
by inapplicable erudition and narrow legalism. Even with due
recognition, such factors, however, I cannot, for reasons to be set more
lengthily and in the light of the opinion of the Chief Justice, reach the
same result as the majority of my brethren. For, in the last analysis, it is
my firm conviction that the institution of judicial review speaks too
clearly for the point to be missed that official action, even with due
allowance made for the good faith that invariably inspires the step
taken, has to face the gauntlet of a court suit whenever there is a
proper case with the appropriate parties.
1. Respondents are acting in the soundest constitutional
tradition when, at the outset, they would seek a dismissal of these
petitions. For them, the question raised is political and thus beyond the
jurisdiction of this Court. Such an approach cannot be indicted for
unorthodoxy. It is implicit in the concept of the rule of law that rights
belong to the people and the government possesses powers only.
Essentially then, unless such an authority may either be predicated on
express or implied grant in the Constitution or the statutes, an exercise
thereof cannot survive an inquiry as to its validity. Respondents
through Solicitor-General Mendoza would deny our competence to
proceed further. It is their view, vigorously pressed and plausibly
asserted, that since what is involved is not merely the effectivity of an
amendment but the actual coming into effect of a new constitution, the
matter is not justiciable. The immediate reaction is that such a
contention is to be tested in the light of the fundamental doctrine of
separation of powers that it is not only the function but the solemn duty
of the judiciary to determine what the law is and to apply it in cases and
controversies that call for decision.7 Since the Constitution pre-
eminently occupies the highest rung in the hierarchy of legal norms, it
is in the judiciary, ultimately this Tribunal, that such a responsibility is
vested. With the 1935 Constitution containing, as above noted, an
explicit article on the subject of amendments, it would follow that the
presumption to be indulged in is that the question of whether there has
been deference to its terms is for this Court to pass upon. What is
more, the Gonzales,8 Tolentino9 and Planas 10 cases speak
unequivocally to that effect. Nor is it a valid objection to this conclusion
that what was involved in those cases was the legality of the
submission and not ratification, for from the very language of the
controlling article, the two vital steps are proposal and ratification,
which as pointed out in Dillon v. Gloss, 11 "cannot be treated as
unrelated acts, but as succeeding steps in a single endeavor." 12 Once
an aspect thereof is viewed as judicial, there would be no justification
for considering the rest as devoid of that character. It would be for me
then an indefensible retreat, deriving no justification from
circumstances of weight and gravity, if this Court were to accede to
what is sought by respondents and rule that the question before us is
political.
On this point, it may not be inappropriate to refer to a separate opinion
of mine in Lansang v. Garcia. 13 Thus: "The term has been made
applicable to controversies clearly non-judicial and therefore beyond its
jurisdiction or to an issue involved in a case appropriately subject to its
cognizance, as to which there has been a prior legislative or executive
determination to which deference must be paid. It has likewise been
employed loosely to characterize a suit where the party proceeded
against is the President or Congress, or any branch thereof. If to be
delimited with accuracy, "political questions" should refer to such as
would under the Constitution be decided by the people in their
sovereign capacity or in regard to full discretionary authority is vested
either in the President or Congress. It is thus beyond the competence
of the judiciary to pass upon. Unless clearly falling within the
formulation, the decision reached by the political branches whether in
the form of a congressional act or an executive order could be tested in
court. Where private rights are affected, the judiciary has no choice but
to look into its validity. It is not to be lost sight of that such a power
comes into play if there be an appropriate proceeding that may be filed
only after each coordinate branch has acted. Even when the
Presidency or Congress possesses plenary powers, its improvident
exercise or the abuse thereof, if shown, may give rise to a justiciable
controversy. For the constitutional grant of authority is usually
unrestricted. There are limits to what may be done and how it is to be
accomplished. Necessarily then, the courts in the proper exercise of
judicial review could inquire into the question of whether or not either of
the two coordinate branches has adhered to what is laid down by the
Constitution. The question thus posed is judicial rather than political."
14 The view entertained by Professor Dodd is not too dissimilar. For
him such a term "is employed to designate certain types of functions
committed to the political organs of government (the legislative and
executive departments, or either of them) and not subject to judicial
investigation." 15 After a thorough study of American judicial decisions,
both federal and state, he could conclude: "The field of judicial
nonenforceability is important, but is not large when contrasted with the
whole body of written constitutional texts. The exceptions from judicial
enforceability fall primarily within the field of public or governmental
interests." 16 Nor was Professor Weston's formulation any different. As
was expressed by him: "Judicial questions, in what may be thought the
more useful sense, are those which the sovereign has set to be
decided in the courts. Political questions, similarly, are those which the
sovereign has entrusted to the so-called political departments of
government or has reserved to be settled by its own extra-
governmental action." 17 What appears undeniable then both from the
standpoint of Philippine as well as American decisions is the care and
circumspection required before the conclusion is warranted that the
matter at issue is beyond judicial cognizance, a political question being
raised.
2. The submission of respondents on this subject of political
question, admittedly one of complexity and importance, deserves to be
pursued further. They would derive much aid and comfort from the
writings of both Professor Bickel 18 of Yale and Professor Freund 19 of
Harvard, both of whom in turn are unabashed admirers of Justice
Brandeis. Whatever be the merit inherent in their lack of enthusiasm for
a more active and positive role that must be played by the United
States Supreme Court in constitutional litigation, it must be judged in
the light of our own history. It cannot be denied that from the well nigh
four decades of constitutionalism in the Philippines, even discounting
an almost similar period of time dating from the inception of American
sovereignty, there has sprung a tradition of what has been aptly termed
as judicial activism. Such an approach could be traced to the
valedictory address before the 1935 Constitutional Convention of Claro
163
M. Recto. He spoke of the trust reposed in the judiciary in these words:
"It is one of the paradoxes of democracy that the people at times place
more confidence in instrumentalities of the State other than those
directly chosen by them for the exercise of their sovereignty." 20 It
would thus appear that even then this Court was expected not to
assume an attitude of timidity and hesitancy when a constitutional
question is posed. There was the assumption of course that it would
face up to such a task, without regard to political considerations and
with no thought except that of discharging its trust. Witness these
words Justice Laurel in an early landmark case, People v. Vera, 21
decided in 1937: "If it is ever necessary for us to make vehement
affirmance during this formative period of political history, it is that we
are independent of the Executive no less than of the Legislative
department of our government — independent in the performance of
our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment
of our sworn duty as we see it and as we understand it." 22 The hope
of course was that such assertion of independence impartiality was not
mere rhetoric. That is a matter more appropriately left to others to
determine. It suffices to stake that what elicits approval on the part of
our people of a judiciary ever alert to inquire into alleged breaches of
the fundamental law is the realization that to do so is merely to do what
is expected of it and that thereby there is no invasion of spheres
appropriately belonging to the political branches. For it needs to be
kept in kind always that it can act only when there is a suit with proper
parties before it, wherein rights appropriate for judicial enforcement are
sought to be vindicated. Then, too, it does not approach constitutional
questions with dogmatism or apodictic certainty nor view them from the
shining cliffs of perfection. This is not to say though that it is satisfied
with an empiricism untroubled by the search for jural consistency and
rational coherence. A balance has to be struck. So juridical realism
requires. Once allowance made that for all its care and circumspection
this Court manned by human beings fettered by fallibility, nonetheless
earnestly and sincerely striving to do right, the public acceptance of its
vigorous pursuit of the task of assuring that the Constitution be obeyed
is easy to understand. It has not in the past shirked its responsibility to
ascertain whether there has been compliance with and fidelity to
constitutional requirements. Such is the teaching of a host of cases
from Angara v. Electoral
Commission 23 to Planas v. Commission on Elections. 24 It should
continue to exercise its jurisdiction, even in the face of a plausible but
not sufficiently persuasive insistence that the matter before it is
political.
Nor am I persuaded that the reading of the current drift in American
legal scholarship by the Solicitor-General and his equally able
associates presents the whole picture. On the question of judicial
review, it is not a case of black and white; there are shaded areas. It
goes too far, in my view, if the perspective is one of dissatisfaction,
with its overtones of distrust. This expression of disapproval has not
escaped Dean Rostow of Yale, who began one of his most celebrated
legal essays. The Democratic Character of Judicial Review, thus: "A
theme of uneasiness, and even of guilt, colors the literature about
judicial review. Many of those who have talked, lectured, and written
about the Constitution have been troubled by a sense that judicial
review is undemocratic." 25 He went on to state: "Judicial review, they
have urged, is an undemocratic shoot on an otherwise respectable
tree. It should be cut off, or at least kept pruned and
inconspicuous." 26 His view was precisely the opposite. Thus: "The
power of constitutional review, to be exercised by some part of the
government, is implicit in the conception of a written constitution
delegating limited powers. A written constitution would promote discord
rather than order in society if there were no accepted authority to
construe it, at the least in case of conflicting action by different
branches of government or of constitutionally unauthorized
governmental action against individuals. The limitation and separation
of powers, if they are to survive, require a procedure for independent
mediation and construction to reconcile the inevitable disputes over the
boundaries of constitutional power which arise in the process of
government." 27 More than that, he took pains to emphasize: "Whether
another method of enforcing the Constitution could have been devised,
the short answer is that no such method developed. The argument
over the constitutionality of judicial review has long since been settled
by history. The power and duty of the Supreme Court to declare
statutes or executive action unconstitutional in appropriate cases is
part of the living Constitution. 'The course of constitutional history,' Mr.
Justice Frankfurter recently remarked, 'has cast responsibilities upon
the Supreme Court which it would be "stultification" for it to evade.' " 28
Nor is it only Dean Rostow who could point Frankfurter, reputed to
belong to the same school of thought opposed to judicial activism, if
not its leading advocate during his long stay in the United States
Supreme Court, as one fully cognizant of the stigma that attaches to a
tribunal which neglects to meet the demands of judicial review. There
is a statement of similar importance from Professor Mason: "In Stein v.
New York Frankfurter remarked, somewhat self-consciously perhaps,
that the 'duty of deference cannot be allowed imperceptibly to slide into
abdication.' " 29 Professor Konefsky, like Dean Rostow, could not
accept characterization of judicial review as undemocratic. Thus his
study of Holmes and Brandeis, the following appears: "When it is said
that judicial review is an undemocratic feature of our political system, it
ought also to be remembered that architects of that system did not
equate constitutional government with unbridled majority rule. Out of
their concern for political stability and security for private rights, ..., they
designed a structure whose keystone was to consist of barriers to the
untrammeled exercise of power by any group. They perceived no
contradiction between effective government and constitutional checks.
To James Madison, who may legitimately be regarded as the
philosopher of the Constitution, the scheme of mutual restraints was
the best answer to what he viewed as the chief problem in erecting a
system of free representative government: 'In framing a government
which is to be administered by men over men, the great difficulty lies in
this: you must first enable the government to control the governed; and
in the next place oblige it to control itself.' " 30
There is thus an inevitability to the flowering of judicial review. Could it
be that the tone of discontent apparent in the writings of eminent
authorities on the subject evince at the most fears that the American
Supreme Court might overstep the bounds allotted to the judiciary? It
cannot be a denial of the fitness of such competence being vested in
judges and of their being called upon to fulfill such a trust whenever
appropriate to the decision of a case before them. That is why it has
been correctly maintained that notwithstanding the absence of any
explicit provision in the fundamental law of the United States
Constitution, that distinguished American constitutional historian,
Professor Corwin, could rightfully state that judicial review "is simply
incidental to the power of courts to interpret the law, of which the
Constitution is part, in connection with the decision of cases." 31 This
is not to deny that there are those who would place the blame or the
credit, depending upon one's predilection, on Marshall's epochal
opinion in Marbury v. Madison. 32 Curtis belonged to that persuasion.
As he put it: "The problem was given no answer by the Constitution. A
hole was left where the Court might drive in the peg of judicial
supremacy, if it could. And that is what John Marshall did." 33 At any
rate there was something in the soil of American juristic thought
resulting in this tree of judicial power so precariously planted by
Marshall striking deep roots and showing wonderful vitality and
hardiness. It now dominates the American legal scene. Through it,
Chief Justice Hughes, before occupying that exalted position, could
state in a lecture: "We are under a Constitution, but the Constitution is
what the judges say it is ... ." 34 The above statement is more than just
an aphorism that lends itself to inclusion in judicial anthologies or bar
association speeches. It could and did provoke from Justice Jackson,
an exponent of the judicial restraint school of thought, this meaningful
query: "The Constitution nowhere provides that it shall be what the
judges say it is. How, did it come about that the statement not only
could be but could become current as the most understandable
comprehensive summary of American Constitutional law?" 35 It is no
wonder that Professor Haines could pithily and succinctly sum up the
place of the highest American tribunal in the scheme of things in this
wise: "The Supreme Court of the United States has come to be
regarded as the unique feature of the American governmental system."
36 Let me not be misunderstood. There is here no attempt to close
one's eyes to a discernible tendency on the part of some distinguished
faculty minds to look askance at what for them may be inadvisable
extension of judicial authority. For such indeed is the case as reflected
in two leading cases of recent vintage, Baker v. Carr, 37 decided in
1962 and Powell v. MacCormack, 38 in 1969, both noted in the opinion
of the Chief Justice. The former disregarded the warning of Justice
Frankfurter in Colegrove v. Green 39 about the American Supreme
Court declining jurisdiction on the question of apportionment as to do
so would cut very deep into the very being of Congress." 40 For him,
the judiciary "ought not to enter this political thicket." Baker has since
then been followed; it has spawned a host of cases. 41 Powell, on the
question of the power of a legislative body to exclude from its ranks a
person whose qualifications are uncontested, for many the very staple
of what is essentially political, certainly goes even further than the
authoritative Philippine decision of Vera v. Avelino, 42 It does look then
that even in the United States, the plea for judicial self-restraint, even if
given voice by those competent in the field of constitutional law, has
fallen on deaf ears. There is in the comments of respondents an
excerpt from Professor Freund quoting from one of his essays
appearing in a volume published in 1968. It is not without interest to
note that in another paper, also included therein, he was less than
assertive about the necessity for self-restraint and apparently mindful
of the claims of judicial activism. Thus: "First of all, the Court has a
responsibility to maintain the constitutional order, the distribution of
public power, and the limitations on that power." 43 As for Professor
Bickel, it has been said that as counsel for the New York Times in the
famous Vietnam papers case, 44 he was less than insistent on the
American Supreme Court exercising judicial self-restraint. There are
signs that the contending forces on such question, for some an
unequal contest, are now quiescent. The fervor that characterized the
expression of their respective points of view appears to have been
minimized. Not that it is to be expected that it will entirely disappear,
considering how dearly cherished are, for each group, the convictions,
prejudices one might even say, entertained. At least what once was
fitly characterized as the booming guns of rhetoric, coming from both
directions, have been muted. Of late, scholarly disputations have been
centered on the standards that should govern the exercise of the
power of judicial review. In his celebrated Holmes lecture in 1959 at the
Harvard Law School, Professor Wechsler advocated as basis for
decision what he termed neutral principles of constitutional law. 45 It
has brought forth a plethora of law review articles, the reaction ranging
from guarded conformity to caustic criticism. 46 There was, to be sure,
no clear call to a court in effect abandoning the responsibility
incumbent on it to keep governmental agencies within constitutional
164
channels. The matter has been put in temperate terms by Professor
Frank thus: "When allowance has been made for all factors, it
nevertheless seems to me that the doctrine of political questions ought
to be very sharply confined to where the functional reasons justify it
and that in a give involving its expansion there should be careful
consideration also of the social considerations which may militate
against it. The doctrine has a certain specious charm because of its
nice intellectualism and because of the fine deference it permits to
expertise, to secret knowledge, and to the prerogatives of others. It
should not be allowed to grow as a merely intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal, coming from
such impeccable sources of the worth and significance of judicial
review in the United States. I cannot resist the conclusion then that the
views advanced on this subject by distinguished counsel for
petitioners, with Senators Lorenzo M. Tañada and Jovito Salonga at
the van, rather than the advocacy of the Solicitor-General, possess the
greater weight and carry persuasion. So much then for the invocation
of the political question principle as a bar to the exercise of our
jurisdiction.
3. That brings me to the issue of the validity of the ratification.
The crucial point that had to be met is whether Proclamation No. 1102
manifests fidelity to the explicit terms of Article XV. There is, of course,
the view not offensive to reason that a sense of the realities should
temper the rigidity of devotion to the strict letter of the text to allow
deference to its spirit to control. With due recognition of its force in
constitutional litigation, 48 if my reading of the events and the process
that led to such proclamation, so clearly set forth in the opinion of the
Chief Justice, is not inaccurate, then it cannot be confidently asserted
that there was such compliance. It would be to rely on conjectural
assumptions that did founder on the rock of the undisputed facts. Any
other conclusion would, for me, require an interpretation that borders
on the strained. So it has to be if one does not lose sight of how the
article on amendments is phrased. A word, to paraphrase Justice
Holmes may not be a crystal, transparent and unchanged, but it is not,
to borrow from Learned Hand, that eminent jurist, a rubber band either.
It would be unwarranted in my view then to assert that the
requirements of the 1935 Constitution have been met. There are
American decisions, 49 and they are not few in number, which require
that there be obedience to the literal terms of the applicable provision.
It is understandable why it should be thus. If the Constitution is the
supreme law, then its mandate must be fulfilled. No evasion is
tolerated. Submission to its commands can be shown only if each and
every word is given meaning rather than ignored or disregarded. This
is not to deny that a recognition conclusive effect attached to the
electorate manifesting its will to vote affirmatively on the amendments
proposed poses an obstacle to the judiciary being insistent on the
utmost regularity. Briefly stated, substantial compliance is enough. A
great many American State decisions may be cited in support of such a
doctrine. 50
Even if the assumption be indulged in that Article XV is not phrased in
terms too clear to be misread, so that this Court is called upon to give
meaning and perspective to what could be considered words of vague
generality, pregnant with uncertainty, still whatever obscurity it
possesses is illumined when the light of the previous legislation is
thrown on it. In the first Commonwealth Act, 51 submitting to the
Filipino people for approval or disapproval certain amendments to the
original ordinance appended to the 1935 Constitution, it was made that
the election for such purpose was to "be conducted in conformity with
the provisions of the Election Code insofar as the same may be
applicable." 52 Then came the statute, 53 calling for the plebiscite on
the three 1940 amendments providing for the plebiscite on the three
1930 amendments providing for a bicameral Congress or a Senate and
a House of Representatives to take the place of a unicameral National
Assembly, 54 reducing the term of the President to four years but
allowing his re-election with the limitation that he cannot serve more
than eight consecutive years, 55 and creating an independent
Commission on Elections. 56 Again, it was expressly provided that the
election "shall be conducted in conformity with the provisions of the
Election Code in so far as the same may be applicable." 57 The
approval of the present parity amendment was by virtue of a Republic
Act 58 which specifically made applicable the then Election Code. 59
There is a similar provision in the
legislation, 60 which in cotemplation of the 1971 Constitutional
Convention, saw to it that there be an increase in the membership of
the House of Representatives a maximum of one hundred eighty and
assured the eligibility of senators and representatives to become
members of such constituent body without forfeiting their seats, as
proposed amendments to be voted on in the 1967 elections. 61 That is
the consistent course of interpretation followed by the legislative
branch. It is most persuasive, if not controlling. The restraints thus
imposed would set limits to the Presidential action taken, even on the
assumption that either as an agent of the Constitutional Convention or
under his martial law prerogatives, he was not devoid of power to
specify the mode of ratification. On two vital points, who can vote and
how they register their will, Article XV had been given a definitive
construction. That is why I fail to see sufficient justification for this
Court affixing the imprimatur of its approval on the mode employed for
the ratification of the revised Constitution as reflected in Proclamation
No. 1102.
4. Nor is the matter before us solely to be determined by the
failure to comply with the requirements of Article XV. Independently of
the lack of validity of the ratification of the new Constitution, if it be
accepted by the people, in whom sovereignty resides according to the
Constitution, 62 then this Court cannot refuse to yield assent to such a
political decision of the utmost gravity, conclusive in its effect. Such a
fundamental principle is meaningless if it does not imply, to follow
Laski, that the nation as a whole constitutes the "single center of
ultimate reference," necessarily the possessor of that "power that is
able to resolve disputes by saying the last word." 63 If the origins of the
democratic polity enshrined in the 1935 Constitution with the
declaration that the Philippines is a republican state could be traced
back to Athens and to Rome, it is no doubt true, as McIver pointed out,
that only with the recognition of the nation as the separate political unit
in public law is there the juridical recognition of the people composing it
"as the source of political authority." 64 From them, as Corwin did
stress, emanate "the highest possible embodiment of human will," 65
which is supreme and must be obeyed. To avoid any confusion and in
the interest of clarity, it should be expressed in the manner ordained by
law. Even if such is not the case, however, once it is manifested, it is to
be accepted as final and authoritative. The government which is merely
an agency to register its commands has no choice but to submit. Its
officials must act accordingly. No agency is exempt such a duty, not
even this Court. In that sense, the lack of regularity in the method
employed to register its wishes is fatal in its consequences. Once the
fact of acceptance by people of a new fundamental law is made
evident, the judiciary is left with no choice but to accord it recognition.
The obligation to render it obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine.
While certainly not controlling, they are not entirely bereft of persuasive
significance. In Miller v. Johnson, 66 decided in 1892, it was set forth in
the opinion of Chief Justice Holt that on May 3, 1890, an act was
passed in Kentucky, providing for the calling of a convention for the
purpose of framing a new constitution and the election of delegates. It
provided that before any form of constitution made by them should
become operative, it should be submitted to the vote of the state and
ratified by a majority of those voting. The constitution then in force
authorized the legislature, the preliminary steps having been taken, to
call a convention "for the purpose of readopting, amending, or
changing" it contained no provision giving the legislature the power to
require a submission of its work to a vote of the people. The
convention met in September, 1890. By April, 1891, it completed a
draft of a constitution, submitted it to a popular vote, and then
adjourned until September following. When the convention
reassembled, the delegates made numerous changes in instrument.
As thus amended, it was promulgated by the convention of September
28, 1891, as the new constitution. An action was brought to challenge
its validity. It failed in the lower court. In affirming such judgment
dismissing the action, Chief Justice Holt stated: "If a set of men, not
selected by the people according to the forms of law, were to formulate
an instrument and declare it the constitution, it would undoubtedly be
the duty of the courts to declare its work a nullity. This would be
revolution, and this the courts of the existing government must resist
until they are overturned by power, and a new government established.
The convention, however, was the offspring of law. The instrument
which we are asked to declare invalid as a constitution has been made
and promulgated according to the forms of law. It is a matter of current
history that both the executive and legislative branches of the
government have recognized its validity as a constitution, and are now
daily doing so. ... While the judiciary should protect the rights of the
people with great care and jealousy, because this is its duty, and also
because; in times of great popular excitement, it is usually their last
resort, yet it should at the same time be careful not to overstep the
proper bounds of its power, as being perhaps equally dangerous; and
especially where such momentous results might follow as would be
likely in this instance, if the power of the judiciary permitted, and its
duty requires, the overthrow of the work of the convention." 67 In
Taylor v. Commonwealth, 68 a 1903 decision, it was contended that
the Virginia Constitution reclaimed in 1902 is invalid as it was ordained
and promulgated by the convention without being submitted for
ratification or rejection by the people. The Court rejected such a view.
As stated in the opinion of Justice Harrison: "The Constitution of 1902
was ordained and proclaimed by a convention duly called by direct
vote of the people of the state to revise and amend the Constitution of
1869. The result of the work of the convention has been recognized,
accepted, and acted upon as the only valid Constitution of the state by
the Governor in swearing fidelity to it and proclaiming it, as directed
thereby; by the Legislature in its formal official act adopting a joint
resolution, July 15, 1902, recognizing the Constitution ordained by the
convention which assembled in the city of Richmond on the 12th day of
June, 1901, as the Constitution of Virginia; by the individual oaths of
members to support it, and by enforcing its provisions; and the people
in their primary capacity by peacefully accepting it and acquiescing in
it, by registering as voters under it to the extent of thousands
throughout the state, and by voting, under its provisions, at a general
election for their representatives in the Congress of the United States.
The Constitution having been thus acknowledged and accepted by the
office administering the government and by the people of the state, and
there being no government in existence under the Constitution of 1869
opposing or denying its validity, we have no difficulty in holding that the
Constitution in question, which went into effect at noon on the 10th day
of July, 1902, is the only rightful, valid, and existing Constitution of this
165
state, and that to it all the citizens of Virginia owe their obedience and
loyal allegiance." 69
It cannot be plausibly asserted then that premises valid in law are
lacking for the claim that the revised Constitution has been accepted
by the Filipino people. What is more, so it has been argued, it is not
merely a case of its being implied. Through the Citizens Assemblies,
there was a plebiscite with the result as indicated in Proclamation No.
1102. From the standpoint of respondents then, they could allege that
there was more than just mere acquiescence by the sovereign people.
Its will was thus expressed formally and unmistakably. It may be added
that there was nothing inherently objectionable in the informal method
followed in ascertaining its preference. Nor is the fact that Filipinos of
both sexes above the age of fifteen were given the opportunity to vote
to be deplored. The greater the base of mass participation, the more
there is fealty to the democratic concept. It does logically follow
likewise that such circumstances being conceded, then no justifiable
question may be raised. This Court is to respect what had thus
received the people's sanction. That is not for me though whole of it.
Further scrutiny even then is not entirely foreclosed. There is still an
aspect that is judicial, an inquiry may be had as to whether such
indeed was the result. This is no more than what the courts do in
election cases. There are other factors to bear in mind. The fact that
the President so certified is well-nigh conclusive. There is in addition
the evidence flowing from the conditions of peace and stability. There
thus appears to be conformity to the existing order of things. The daily
course of events yields such a conclusion. What is more, the officials
under the 1935 Constitution, including practically all Representatives
and a majority of the Senators, have signified their assent to it. The
thought persists, however, that as yet sufficient time has not elapsed to
be really certain.
Nor is this all. There is for me an obstacle to the petitions being
dismissed for such ascertainment of popular will did take place during
a period of martial law. It would have been different had there been
that freedom of debate with the least interference, thus allowing a free
market of ideas. If it were thus, it could be truly said that there was no
barrier to liberty of choice. It would be a clear-cut decision either way.
One could be certain as to the fact of the acceptance of the new or of
adherence to the old. This is not to deny that votes are cast by
individuals with their personal concerns uppermost in mind, worried
about their immediate needs and captive to their existing moods. That
is inherent in any human institution, much more so in a democratic
polity. Nor is it open to any valid objection because in the final analysis
the state exists for the individuals who in their collectivity compose it.
Whatever be their views, they are entitled to respect. It is difficult for
me, however, at this stage to feel secure in the conviction that they did
utilize the occasion afforded to give expression to what was really in
their hearts. This is not to imply that such doubt could not be dispelled
by evidence to the contrary. If the petitions be dismissed however, then
such opportunity is forever lost.
5. With the foregoing legal principles in mind, I find myself
unable to join the ranks of my esteemed brethren who vote for the
dismissal of these petitions. I cannot yield an affirmative response to
the plea of respondents to consider the matter closed, the proceedings
terminated once and for all. It is not an easy decision to reach. It has
occasioned deep thought and considerable soul-searching. For there
are countervailing considerations that exert a compulsion not easy to
resist. It can be asserted with truth, especially in the field of social and
economic rights, that with the revised Constitution, there is an
auspicious beginning for further progress. Then too it could resolve
what appeared to be the deepening contradictions of political life,
reducing at times governmental authority to near impotence and
imparting a sense of disillusionment in democratic processes. It is not
too much to say therefore that there had indeed been the revision of a
fundamental law to vitalize the very values out of which democracy
grows. It is one which has all the earmarks of being responsive to the
dominant needs of the times. It represents an outlook cognizant of the
tensions of a turbulent era that is the present. That is why for some
what was done represented an act of courage and faith, coupled with
the hope that the solution arrived at is a harbinger of a bright and rosy
future.
It is such a comfort then that even if my appraisal of the situation had
commanded a majority, there is not, while these lawsuits are being
further considered, the least interference, with the executive
department. The President in the discharge of all his functions is
entitled to obedience. He remains commander-in-chief with all the
constitutional powers it implies. Public officials can go about their
accustomed tasks in accordance with the revised Constitution. They
can pursue even the tenor of their ways. They are free to act according
to its tenets. That was so these past few weeks, even petitions were
filed. There was not at any time any thought of any restraining order.
So it was before. That is how things are expected to remain even if the
motions to dismiss were not granted. It might be asked though,
suppose the petitions should prevail? What then? Even so, the
decision of this Court need not be executory right away. Such a
disposition of a case before this Court is not novel. That was how it
was done in the Emergency Powers Act controversy. 70 Once
compliance is had with the requirements of Article XV of the 1935
Constitution, to assure that the coming force of the revised charter is
free from any taint of infirmity, then all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of
unreality, to cherish illusions that cannot stand the test of actuality.
What is more, it may give the impression of reliance on what may, for
the practical man of affairs, be no more than gossamer distinctions and
sterile refinements unrelated to events. That may be so, but I find it
impossible to transcend what for me are the implications of traditional
constitutionalism. This is not to assert that an occupant of the bench is
bound to apply with undeviating rigidity doctrines which may have
served their day. He could at times even look upon them as mere
scribblings in the sands to be washed away by the advancing tides of
the present. The introduction of novel concepts may be carried only so
far though. As Cardozo put the matter: "The judge, even when he is
free, is still not wholly free. He is not to innovate at pleasure. He is not
a knight-errant, roaming at will in pursuit of his own ideal of beauty or
of goodness. He is to draw his inspiration from consecrated principles.
He is not to yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system, and subordinated to
"the primordial necessity of order in the social life." Wide enough in all
conscience is the field of discretion that remains." 71 Moreover what
made it difficult for this Court to apply settled principles, which for me
have not lost their validity, is traceable to the fact that the revised
Constitution was made to take effect immediately upon ratification. If a
period of time were allowed to elapse precisely to enable the judicial
power to be exercised, no complication would have arisen. Likewise,
had there been only one or two amendments, no such problem would
be before us. That is why I do not see sufficient justification for the
orthodoxies of constitutional law not to operate.
Even with full realization then that the approach pursued is not all that
it ought to have been and the process of reasoning not without its
shortcomings, the basic premises of a constitutional democracy, as I
understand them and as set forth in the preceding pages, compel me
to vote the way I did.
TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he painstakingly
deals with the momentous issues of the cases at bar in all their
complexity commands my concurrence.
I would herein make an exposition of the fundamental reasons and
considerations for my stand.
The unprecedented and precedent-setting issue submitted by
petitioners for the Court's resolution is the validity and constitutionality
of Presidential Proclamation No. 1102 issued on January 17, 1973,
certifying and proclaiming that the Constitution proposed by the 1971
Constitutional Convention "has been ratified by an overwhelming
majority of all the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby
come into effect."
More specifically, the issue submitted is whether the purported
ratification of the proposed Constitution by means of the Citizens
Assemblies has substantially complied with the mandate of Article XV
of the existing Constitution of 1935 that duly proposed amendments
thereto, in toto or parts thereof, "shall be valid as part of this
Constitution when approved by a majority of the votes cast at an
election at which the amendments are submitted to the people for their
ratification."1
A necessary corollary issue is whether the purported ratification of the
proposed Constitution as signed on November 30, 1972 by the 1971
Constitutional Convention may be said also to have substantially
complied with its own mandate that "(T)his Constitution shall take
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."2
Respondents contend that "(A)lthough apparently what is sought to be
annulled is Proclamation No. 1102, what petitioners really seek to
invalidate is the new Constitution", and their actions must be
dismissed, because:
— "the Court may not inquire into the validity of the procedure for
ratification" which is "political in character" and that "what is sought to
be invalidated is not an act of the President but of the people;
— "(T)he fact of approval of the new Constitution by an overwhelming
majority of the votes cast as declared and certified in Proclamation No.
1102 is conclusive on the courts;
— "Proclamation No. 1102 was issued by the President in the exercise
of legislative power under martial law. ... Alternatively, or
contemporaneously, he did so as "agent" of the Constitutional
Convention;"
— "alleged defects, such as absence of secret voting, enfranchisement
of persons less than 21 years, non supervision (by) the Comelec are
matters not required by Article XV of the 1935 Constitution"; (sic)
166
— "after ratification, whatever defects there might have been in the
procedure are overcome and mooted (and muted) by the fact of
ratification"; and
— "(A)ssuming finally that Article XV of the 1935 Constitution was not
strictly followed, the ratification of the new Constitution must
nonetheless be respected. For the procedure outlined in Article XV was
not intended to be exclusive of other procedures, especially one which
contemplates popular and direct participation of the citizenry ... ."3
To test the validity of respondents' submittal that the Court, in annulling
Proclamation No. 1102 would really be "invalidating the new
Constitution", the terms and premises of the issues have to be defined.
— Respondents themselves assert that "Proclamation No. 1102 ... is
plainly merely declaratory of the fact that the 1973 Constitution has
been ratified and has come into force.4
— The measure of the fact of ratification is Article XV of the 1935
Constitution. This has been consistently held by the Court in the
Gonzales:5 and Tolentino6 cases.
— In the Tolentino case, this Court emphasized "that the provisions of
Section 1 of Article XV of the Constitution, dealing with the procedure
or manner of amending the fundamental law are binding upon the
Convention and the other departments of the government. It must be
added that ... they are no less binding upon the people."7
— In the same Tolentino case, this Court further proclaimed that "as
long as any amendment is formulated and submitted under the aegis of
the present Charter, any proposal for such amendment which is not in
conformity with the letter, spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of this Court."8
— As continues to be held by a majority of this Court, proposed
amendments to the Constitution "should be ratified in only one way,
that is, in an election or plebiscite held in accordance with law and
participated in only by qualified and duly registered voters"9 and under
the supervision of the Commission on Elections. 10
— Hence, if the Court declares Proclamation 1102 null and void
because on its face, the purported ratification of the proposed
Constitution has not faithfully nor substantially observed nor complied
with the mandatory requirements of Article XV of the (1935)
Constitution, it would not be "invalidating" the proposed new
Constitution but would be simply declaring that the announced fact of
ratification thereof by means of the Citizens Assemblies referendums
does not pass the constitutional test and that the proposed new
Constitution has not constitutionally come into existence.
— Since Proclamation 1102 is acknowledged by respondent to be
"plainly merely declaratory" of the disputed fact of ratification, they
cannot assume the very fact to be established and beg the issue by
citing the self-same declaration as proof of the purported ratification
therein declared.
What complicates the cases at bar is the fact that the proposed 1972
Constitution was enforced as having immediately taken effect upon the
issuance on January 17, 1973 of Proclamation 1102 and the question
of whether "confusion and disorder in government affairs would (not)
result" from a judicial declaration of nullity of the purported ratification is
raised by the Solicitor-General on behalf of respondents.
A comparable precedent of great crisis proportions is found in the
Emergency Powers cases, 11 wherein the Court in its Resolution of
September 16, 1949 after judgment was initially not obtained on
August 26, 1949 for lack of the required six (6) votes, finally declared in
effect that the pre-war emergency powers delegated by Congress to
the President, under Commonwealth Act 671 in pursuance of Article
VI, section 26 of the Constitution, had ceased and became inoperative
at the latest in May, 1946 when Congress met in its first regular
session on May 25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and
important rights that had arisen under executive orders "issued in good
faith and with the best of intentions by three successive Presidents,
and some of them may have already produced extensive effects on the
life of the nation" — in the same manner as may have arisen under the
bona fide acts of the President now in the honest belief that the 1972
Constitution had been validly ratified by means of the Citizens
Assemblies referendums — and indicated the proper course and
solution therefor, which were duly abided by and confusion and
disorder as well as harm to public interest and innocent parties thereby
avoided as follows:
Upon the other hand, while I believe that the emergency powers had
ceased in June 1945, I am not prepared to hold that all executive
orders issued thereafter under Commonwealth Act No. 671, are per se
null and void. It must be borne in mind that these executive orders had
been issued in good faith and with the best of intentions by three
successive Presidents, and some of them may have already produced
extensive effects in the life of the nation. We have, for instance,
Executive Order No. 73, issued on November 12, 1945, appropriating
the sum of P6,750,000 for public works; Executive Order No. 86,
issued on January 7, 1946, amending a previous order regarding the
organization of the Supreme Court; Executive Order No. 89, issued on
January 1, 1946, reorganizing Courts of First Instance; Executive
Order No. 184, issued on November 19, 1948, controlling rice and
palay to combat hunger; and other executive orders appropriating
funds for other purposes. The consequences of a blanket nullification
of all these executive orders will be unquestionably serious and
harmful. And I hold that before nullifying them, other important
circumstances should be inquired into, as for instance, whether or not
they have been ratified by Congress expressly or impliedly, whether
their purposes have already been accomplished entirely or partially,
and in the last instance, to what extent; acquiescence of litigants; de
facto officers; acts and contracts of parties acting in good faith; etc. It is
my opinion that each executive order must be viewed in the light of its
peculiar circumstances, and, if necessary and possible, nullifying it,
precautionary measures should be taken to avoid harm to public
interest and innocent parties. 12
Initially, then Chief Justice Moran voted with a majority of the Court to
grant the Araneta and Guerrero petitions holding null and void the
executive orders on rentals and export control but to defer judgment on
the Rodriguez and Barredo petitions for judicial declarations of nullity of
the executive orders appropriating the 1949-1950 fiscal year budget for
the government and P6 million for the holding of the 1949 national
elections. After rehearsing, he further voted to also declare null and
void the last two executive orders appropriating funds for the 1949
budget and elections, completing the "sufficient majority" of six against
four dissenting justices "to pronounce a valid judgment on that matter."
13
Then Chief Justice Moran, who penned the Court's majority resolution,
explained his vote for annulment despite the great difficulties and
possible "harmful consequences" in the following passage, which
bears re-reading:
However, now that the holding of a special session of Congress for the
purpose of remedying the nullity of the executive orders in question
appears remote and uncertain, I am compelled to, and do hereby, give
my unqualified concurrence in the decision penned by Mr. Justice
Tuason declaring that these two executive orders were issued without
authority of law.
While in voting for a temporary deferment of the judgment I was moved
by the belief that positive compliance with the Constitution by the other
branches of the Government, which is our prime concern in all these
cases, would be effected, and indefinite deferment will produce the
opposite result because it would legitimize a prolonged or permanent
evasion of our organic law. Executive orders which are, in our opinion,
repugnant to the Constitution, would be given permanent life, opening
the way or practices which may undermine our constitutional structure.
The harmful consequences which, as I envisioned in my concurring
opinion, would come to pass should the said executive orders be
immediately declared null and void are still real. They have not
disappeared by reason of the fact that a special session of Congress is
not now forthcoming. However, the remedy now lies in the hands of the
Chief Executive and of Congress, for the Constitution vests in the
former the power to call a special session should the need for one
arise, and in the latter, the power to pass a valid appropriations act.
That Congress may again fail to pass a valid appropriations act is a
remote possibility, for under the circumstances it fully realizes its great
responsibility of saving the nation from breaking down; and
furthermore, the President in the exercise of his constitutional powers
may, if he so desires, compel Congress to remain in special session till
it approves the legislative measures most needed by the country.
Democracy is on trial in the Philippines, and surely it will emerge
victorious as a permanent way of life in this country, if each of the great
branches of the Government, within its own allocated sphere, complies
with its own constitutional duty, uncompromisingly and regardless of
difficulties.
Our Republic is still young, and the vital principles underlying its
organic structure should be maintained firm and strong, hard as the
best of steel, so as to insure its growth and development along solid
lines of a stable and vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority
judgment (declaring null and void the rental and export control
executive orders) likewise observed that "(T)he truth is that under our
concept of constitutional government, in times of extreme perils more
than in normal circumstances 'the various branches, executive,
legislative, and judicial,' given the ability to act, are called upon 'to
perform the duties discharge the responsibilities committed to
respectively.' " 15
It should be duly acknowledged that the Court's task of discharging its
duty and responsibility has been considerably lightened by the
President's public manifestation of adherence to constitutional
processes and of working within the proper constitutional framework as
167
per his press conference of January 20,1973, wherein he stated that
"(T)he Supreme Court is the final arbiter of the Constitution. It can and
will probably determine the validity of this Constitution. I did not want to
talk about this because actually there is a case pending before the
Supreme Court. But suffice it to say that I recognize the power of the
Supreme Court. With respect to appointments, the matter falls under a
general provision which authorizes the Prime Minister to appoint
additional members to the Supreme Court. Until the matter of the new
Constitution is decided, I have no intention of utilizing that power." 16
Thus, it is that as in an analogous situation wherein the state Supreme
Court of Mississippi held that the questions of whether the submission
of the proposed constitutional amendment of the State Constitution
providing for an elective, instead of an appointive, judiciary and
whether the proposition was in fact adopted, were justifiable and not
political questions, we may echo the words therein of Chief Justice
Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by
the Constitution. We could not, if we would, escape the exercise of that
jurisdiction which the Constitution has imposed upon us. In the
particular instance in which we are now acting, our duty to know what
the Constitution of the state is, and in accordance with our oaths to
support and maintain it in its integrity, imposed on us a most difficult
and embarrassing duty, one which we have not sought, but one which,
like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my
colleagues' contrary views, we are faced with the hard choice of
maintaining a firm and strict — perhaps, even rigid — stand that the
Constitution is a "superior paramount law, unchangeable by ordinary
means" save in the particular mode and manner prescribed therein by
the people, who, in Cooley's words, so "tied up (not only) the hands of
their official agencies, but their own hands as well" 18 in the exercise of
their sovereign will or a liberal and flexible stand that would consider
compliance with the constitutional article on the amending process as
merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at bar,
signifies that the Constitution may be amended in toto or otherwise
exclusively "by approval by a majority of the votes cast an election at
which the amendments are submitted to the people for their
ratification", 19 participated in only by qualified and duly registered
voters twenty-one years of age or over 20 and duly supervised by the
Commission on Elections, 21 in accordance with the cited mandatory
constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of
said requirements on the theory urged by respondents that "the
procedure outlined in Article XV was not intended to be exclusive of
other procedures especially one which contemplates popular and direct
participation of the citizenry", 22 that the constitutional age and literacy
requirements and other statutory safeguards for ascertaining the will of
the majority of the people may likewise be changed as "suggested, if
not prescribed, by the people (through the Citizens Assemblies)
themselves", 23 and that the Comelec is constitutionally "mandated to
oversee ... elections (of public officers) and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in
the historic 1803 case of Marbury vs. Madison 25 the U.S. Supreme
Court's power of judicial review and to declare void laws repugnant to
the Constitution, there is no middle ground between these two
alternatives. As Marshall expounded it: "(T)he Constitution is either a
superior paramount law, unchangeable by ordinary means, or it is on a
level with ordinary legislative acts, and, like other acts, alterable when
the legislature shall please to alter it. If the former part of the alternative
be true, then a legislative act, contrary to the Constitution, is not law; if
the latter part be true, then written constitutions are absurd attempts on
the part of a people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third
later in the 1936 landmark case of Angara vs. Electoral Commission,
26 "(T)he Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If
these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by
which to direct the course of government along constitutional channels,
for then the distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations of good
government and restrictions embodied in our Constitution are real as
they should be in any living Constitution."
Justice Laurel pointed out that in contrast to the United States
Constitution, the Philippine Constitution as "a definition of the powers
of government" placed upon the judiciary the great burden of
"determining the nature, scope and extent of such powers" and
stressed that "when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other
departments ... but only asserts the solemn and sacred obligation
entrusted to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an
actual controversy the rights which the instrument secures and
guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case of
McCulloch vs. Maryland 27 the "climactic phrase," 28 "we must never
forget that it is a constitution we are expounding," — termed by Justice
Frankfurter as "the single most important utterance in the literature of
constitutional law — most important because most comprehensive and
comprehending." 29 This enduring concept to my mind permeated to
this Court's exposition and rationale in the hallmark case of Tolentino,
wherein we rejected the contentions on the Convention's behalf "that
the issue ... is a political question and that the Convention being a
legislative body of the highest order is sovereign, and as such, its acts
impugned by petitioner are beyond the control of Congress and the
Courts." 30
This Court therein made its unequivocal choice of strictly requiring
faithful (which really includes substantial) compliance with the
mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16,
1971 prohibiting the submittal in an advance election of 1971
Constitutional Convention's Organic Resolution No. 1 proposing to
amend Article V, section 1 of the Constitution by lowering the voting
age to 18 years (vice 21 years) 30a "without prejudice to other
amendments that will be proposed in the future ... on other portions of
the amended section", this Court stated that "the constitutional
provision in question (as proposed) presents no doubt which may be
resolved in favor of respondents and intervenors. We do not believe
such doubt can exist only because it is urged that the end sought to be
achieved is to be desired. Paraphrasing no less than the President of
Constitutional Convention of 1934, Claro M. Recto, let those who
would put aside, invoking grounds at best controversial, any mandate
of the fundamental law purportedly in order to attain some laudable
objective bear in mind that someday somehow others with purportedly
more laudable objectives may take advantage of the precedent and
continue the destruction of the Constitution, making those who laid
down the precedent of justifying deviations from the requirements of
the Constitution the victims of their own folly." 31
2. This Court held in Tolentino that:
... as to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now We hold
that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV.
This must be so, because it is plain to Us that the framers of the
Constitution took care that the process of amending the same should
not be undertaken with the same ease and facility in changing an
ordinary legislation. Constitution making is the most valued power,
second to none, of the people in a constitutional democracy such as
the one our founding fathers have chosen for this nation, and which we
of the succeeding generations generally cherish. And because the
Constitution affects the lives, fortunes, future and every other
conceivable aspect of the lives of all the people within the country and
those subject to its sovereignty, every degree of care is taken in
preparing and drafting it. A constitution worthy of the people for
deliberation and study. It is obvious that correspondingly, any
amendment of the Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and prepared with
as much care and deliberation. From the very nature of things, the
drafters of an original constitution, as already observed earlier, operate
without any limitations, restraints or inhibitions save those that they
may impose upon themselves. This is not necessarily true of
subsequent conventions called to amend the original constitution.
Generally, the framers of the latter see to it that their handiwork is not
lightly treated and as easily mutilated or changed, not only for reasons
purely personal but more importantly, because written constitutions are
supposed to be designed so as to last for some time, if not for ages, or
for, at least, as long as they can be adopted to the needs and
exigencies of the people, hence, they must be insulated against
precipitate and hasty actions motivated by more or less passing
political moods or fancies. Thus, as a rule, the original constitutions
carry with them limitations and conditions, more or less stringent, made
so by the people themselves, in regard to the process of their
amendment. And when such limitations or conditions are so
incorporated in the original constitution, it does not lie in the delegates
of any subsequent convention to claim that they may ignore and
disregard such conditions because they are powerful and omnipotent
as their original counterparts. 32
3. This Court in Tolentino likewise formally adopted the doctrine
of proper submission first advanced in Gonzales vs. Comelec33, thus:
We are certain no one can deny that in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it
must provide the voter not only sufficient time but ample basis for an
intelligent appraisal of the nature of amendment per se as well as its
relation to the other parts of the Constitution with which it has to form a
harmonious whole. In the context of the present state of things, where
the Convention hardly started considering the merits of hundreds, if not
thousands, proposals to amend the existing Constitution, to present to
168
people any single proposal or a few of them cannot comply with this
requirement. We are of the opinion that the present Constitution does
not contemplate in Section 1 of Article XV a plebiscite or "election"
wherein the people are in the dark as to frame of reference they can
base their judgment on. We reject the rationalization that the present
Constitution is a possible frame of reference, for the simple reason that
intervenors themselves are stating the sole purpose of the proposed
amendment is to enable the eighteen year olds to take part in the
election for the ratification of the Constitution to be drafted by the
Convention. In brief, under the proposed plebiscite, there can be, in the
language of Justice Sanchez, speaking for the six members of the
Court in Gonzales, supra, 'no proper submission.' " 34
4. Four other members of the Court 35 in a separate
concurrence in Tolentino, expressed their "essential agreement" with
Justice Sanchez' separate opinion in Gonzales on the need for "fair
submission (and) intelligent rejection" as "minimum requirements that
must be met in order that there can be a proper submission to the
people of a proposed constitutional amendment" thus:
... amendments must be fairly laid before the people for their blessing
or spurning. The people are not to be mere rubber stamps. They are
not to vote blindly. They must be afforded ample opportunity to mull
over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their
conscience suggest, free from the incubus of extraneous or possibly
insidious influences. We believe the word "submitted" can only mean
that the government, within its maximum capabilities, should strain
every effort to inform every citizen of the provisions to be amended,
and the proposed amendments and the meaning, nature and effects
thereof. By this, we are not to be understood as saying that, if one
citizen or 100 citizens or 1,000 citizens cannot be reached, then there
is no submission within the meaning of the word as intended by the
framers of the Constitution. What the Constitution in effect directs is
that the government, in submitting an amendment for ratification,
should put every instrumentality or agency within its structural
framework to enlighten the people, educate them with respect to their
act of ratification or rejection. For as we have earlier stated, one thing
is submission and another is ratification. There must be fair
submission, intelligent consent or rejection. 36
They stressed further the need for undivided attention, sufficient
information and full debate, conformably to the intendment of Article
XV, section 1 of the Constitution, in this wise:
A number of doubts or misgivings could conceivably and logically
assail the average voter. Why should the voting age be lowered at all,
in the first place? Why should the new voting age be precisely 18
years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-
year old as mature as the 21-year old, so that there is no need of an
educational qualification to entitle him to vote? In this age of
permissiveness and dissent, can the 18-year old be relied upon to vote
with judiciousness when the 21-year old, in the past elections, has not
performed so well? If the proposed amendment is voted down by the
people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed
amendment ratified at this particular time? Do some of the members of
the Convention have future political plans which they want to begin to
subserve by the approval this year of this amendment? If this
amendment is approved, does it thereby mean that the 18-year old
should not also shoulder the moral and legal responsibilities of the 21-
year old? Will he be required to compulsory military service under the
colors? Will the contractual consent be reduced to 18 years? If I vote
against the amendment, will I not be unfair to my own child who will be
18 years old, come 1973?
The above are just samplings from here, there and everywhere — from
a domain (of searching questions) the bounds of which are not
immediately ascertainable. Surely, many more questions can be added
to the already long litany. And the answers cannot except as the
questions are debated fully, pondered upon purposefully, and accorded
undivided attention.
Scanning the contemporary scene, we say that the people are not, and
by election time will not be, sufficiently informed of the meaning, nature
and effects of the proposed constitutional amendment. They have not
been afforded ample time to deliberate thereon conscientiously. They
have been and are effectively distracted from a full and dispassionate
consideration of the merits and demerits of the proposed amendment
by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom
proposed
amendment. 37
5. This Court therein dismissed the plea of disregarding
mandatory requirements of the amending process "in favor of allowing
the sovereign people to express their decision on the proposed
amendments" as "anachronistic in the real constitutionalism and
repugnant to the essence of the rule of law," in the following terms:
... The preamble of the Constitution says that the Constitution has been
ordained by the 'Filipino people, imploring the aid of Divine
Providence.' Section 1 of Article XV is nothing than a part of the
Constitution thus ordained by the people. Hence, in construing said
section, We must read it as if the people had said, 'This Constitution
may be amended, but it is our will that the amendment must be
proposed and submitted to Us for ratification only in the manner herein
provided.' ... Accordingly, the real issue here cannot be whether or not
the amending process delineated by the present Constitution may be
disregarded in favor of allowing the sovereign people to express their
decision on the proposed amendments, if only because it is evident
that the very idea of departing from the fundamental law is
anachronistic in the realm of constitutionalism and repugnant to the
essence of the rule of law; rather, it is whether or not the provisional
nature of the proposed amendment and the manner of its submission
to the people for ratification or rejection conform with the mandate of
the people themselves in such regard, as expressed in, the
Constitution itself. 38
6. This Court, in not heeding the popular clamor, thus stated its
position: "(I)t would be tragic and contrary to the plain compulsion of
these perspectives, if the Court were to allow itself in deciding this case
to be carried astray by considerations other than the imperatives of the
rule of law and of the applicable provisions of the Constitution.
Needless to say, in a larger measure than when it binds other
departments of the government or any other official or entity, the
Constitution imposes upon the Court the sacred duty to give meaning
and vigor to the Constitution, by interpreting and construing its
provisions in appropriate cases with the proper parties and by striking
down any act violative thereof. Here, as in all other cases, We are
resolved to discharge that duty. 39
7. The Chief Justice, in his separate opinion in Tolentino
concurring with this Court's denial of the motion for reconsideration,
succinctly restated this Court's position on the fundamentals, as
follows:
— On the premature submission of a partial amendment proposal, with
a "temporary provisional or tentative character": — "... a partial
amendment would deprive the voters of the context which is usually
necessary for them to make a reasonably intelligent appraisal of the
issue submitted for their ratification or rejection. ... Then, too, the
submission to a plebiscite of a partial amendment, without a definite
frame of reference, is fraught with possibilities which may jeopardize
the social fabric. For one thing, it opens the door to wild speculations. It
offers ample opportunities for overzealous leaders and members of
opposing political camps to unduly exaggerate the pros and cons of the
partial amendment proposed. In short, it is apt to breed false hopes
and create wrong impressions. As a consequence, it is bound to
unduly strain the people's faith in the soundness and validity of
democratic processes and institutions.
— On the plea to allow submission to the sovereign people of the
"fragmentary and incomplete" proposal, although inconsistent with the
letter and spirit of the Constitution: "The view, has, also, advanced that
the foregoing considerations are not decisive on the issue before Us,
inasmuch as the people are sovereign, and the partial amendment
involved in this case is being submitted to them. The issue before Us is
whether or not said partial amendment may be validly submitted to the
people for ratification "in a plebiscite coincide with the local elections in
November 1971," and this particular issue will not be submitted to the
people. What is more, the Constitution does not permit its submission
to the people. The question sought to be settled in the scheduled
plebiscite is whether or not the people are in favor of the reduction of
the voting age.
— On a "political" rather than "legalistic" approach: "Is this approach to
the problem too "legalistic?" This term has possible connotations. It
may mean strict adherence to the law, which in the case at bar is the
Supreme Law of the land. On point, suffice it to say that, in compliance
with the specific man of such Supreme Law, the members of the
Supreme Court taken the requisite "oath to support and defend the
Constitution." ... Then, again, the term "legalistic" may be used to
suggest inversely that the somewhat strained interpretation of the
Constitution being urged upon this Court be tolerated or, at least,
overlooked, upon the theory that the partial amendment on voting age
is badly needed and reflects the will of the people, specially the youth.
This course of action favors, in effect, adoption of a political approach,
inasmuch as the advisability of the amendment and an appraisal of the
people's feeling thereon political matters. In fact, apart from the
obvious message of the mass media, and, at times, of the pulpit, the
Court has been literally bombarded with scores of handwritten letters,
almost all of which bear the penmanship and the signature of girls, as
well as letterhead of some sectarian educational institutions, generally
stating that the writer is 18 years of age and urging that she or he be
allowed to vote. Thus, the pressure of public opinion has brought to
bear heavily upon the Court for a reconsideration of its decision in the
case at bar.
As above stated, however, the wisdom of the amendment and the
popularity thereof are political questions beyond our province. In fact,
respondents and the intervenors originally maintained that We have no
jurisdiction to entertain the petition herein, upon the ground that the
issue therein raised is a political one. Aside from the absence of
authority to pass upon political question, it is obviously improper and
169
unwise for the bench to develop into such questions owing to the
danger of getting involved in politics, more likely of a partisan nature,
and, hence, of impairing the image and the usefulness of courts of
justice as objective and impartial arbiters of justiciable controversies.
Then, too, the suggested course of action, if adopted, would constitute
a grievous disservice to the people and the very Convention itself.
Indeed, the latter and the Constitution it is in the process of drafting
stand essentially for the Rule of Law. However, as the Supreme Law of
the land, a Constitution would not be worthy of its name, and the
Convention called upon to draft it would be engaged in a futile
undertaking, if we did not exact faithful adherence to the fundamental
tenets set forth in the Constitution and compliance with its provisions
were not obligatory. If we, in effect, approved, consented to or even
overlooked a circumvention of said tenets and provisions, because of
the good intention with which Resolution No. 1 is animated, the Court
would thereby become the Judge of the good or bad intentions of the
Convention and thus be involved in a question essentially political in
nature.
This is confirmed by the plea made in the motions for reconsideration
in favor of the exercise of judicial statesmanship in deciding the
present case. Indeed, "politics" is the word commonly used to
epitomize compromise, even with principles, for the sake of political
expediency or the advancement of the bid for power of a given political
party. Upon the other hand, statesmanship is the expression usually
availed of to refer to high politics or politics on the highest level. In any
event, politics, political approach, political expediency and
statesmanship are generally associated, and often identified, with the
dictum that "the end justifies the means." I earnestly hope that the
administration of justice in this country and the Supreme Court, in
particular, will adhere to or approve or indorse such dictum." 40
Tolentino, he pointed out that although "(M)ovants' submittal that
"(T)he primary purpose for the submission of the proposed amendment
lowering the voting age to the plebiscite on November 8, 1971 is to
enable the youth 18 to 20 years who comprise more than three (3)
million of our population to participate in the ratification of the new
Constitution in so far as "to allow young people who would be
governed by the Constitution to be given a say on what kind of
Constitution they will have" is a laudable end, ... those urging the
vitality and importance of the proposed constitutional amendment and
its approval ahead of the complete and final draft of the Constitution
must seek a valid solution to achieve it in a manner sanctioned by the
amendatory process ordained by our people in the present
Constitution" 41 — so that there may be "submitted, not piece-meal,
but by way of complete and final amendments as an integrated whole
(integrated either with the subsisting Constitution or with the new
proposed Constitution)..."
9. The universal validity of the vital constitutional precepts and
principles above-enunciated can hardly be gainsaid. I fail to see the
attempted distinction of restricting their application to proposals for
amendments of particular provisions of the Constitution and not to so-
called entirely new Constitutions. Amendments to an existing
Constitution presumably may be only of certain parts or in toto, and in
the latter case would rise to an entirely new Constitution. Where this
Court held in Tolentino that "any amendment of the Constitution is of
no less importance than the whole Constitution itself and perforce must
be conceived and prepared with as much care and deliberation", it
would appeal that the reverse would equally be true; which is to say,
that the adoption of a whole new Constitution would be of no less
importance than any particular amendment and therefore the
necessary care and deliberation as well as the mandatory restrictions
and safeguards in the amending process ordained by the people
themselves so that "they (may) be insulated against precipitate and
hasty actions motivated by more or less passing political moods or
fancies" must necessarily equally apply thereto.
III
1. To restate the basic premises, the people provided in Article
XV of the Constitution for the amending process only "by approval by a
majority of the votes cast at an election at which the (duly proposed)
amendments are submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby
enfranchised and granted the right of suffrage may speak the "will of
the body politic", viz, qualified literate voters twenty one years of age or
over with one year's residence in the municipality where they have
registered.
The people, not as yet satisfied, further provided by amendment duly
approved in 1940 in accordance with Article XV, for the creation of an
independent Commission on Elections with "exclusive charge" for the
purpose of "insuring free, orderly and honest elections" and
ascertaining the true will of the electorate — and more, as ruled by this
Court in Tolentino, in the case of proposed constitutional amendments,
insuring proper submission to the electorate of such proposals. 42
2. A Massachussets case 43 with a constitutional system and
provisions analogous to ours, best defined the uses of the term
"people" as a body politic and "people" in the political sense who are
synonymous with the qualified voters granted the right to vote by the
existing Constitution and who therefore are "the sole organs through
which the will of the body politic can be expressed."
It was pointed out therein that "(T)he word 'people' may have
somewhat varying significations dependent upon the connection in
which it is used. In some connections in the Constitution it is confined
to citizens and means the same as citizens. It excludes aliens. It
includes men, women and children. It comprehends not only the sane,
competent, law-abiding and educated, but also those who are wholly or
in part dependents and charges upon society by reason of immaturity,
mental or moral deficiency or lack of the common essentials of
education. All these persons are secured fundamental guarantees of
the Constitution in life, liberty and property and the pursuit of
happiness, except as these may be limited for the protection of
society."
In the sense of "body politic (as) formed by voluntary association of
individuals" governed by a constitution and common laws in a "social
compact ... for the common good" and in another sense of "people" in
a "practical sense" for "political purposes" it was therein fittingly stated
that in this sense, "people" comprises many who, by reason of want of
years, of capacity or of the educational requirements of Article 20 of
the amendments of the Constitution, can have no voice in any
government and who yet are entitled to all the immunities and
protection established by the Constitution. 'People' in this aspect is
coextensive with the body politic. But it is obvious that 'people' cannot
be used with this broad meaning of political signification. The 'people'
in this connection means that part of the entire body of inhabitants who
under the Constitution are intrusted with the exercise of the sovereign
power and the conduct of government. The 'people' in the Constitution
in a practical sense means those who under the existing Constitution
possess the right to exercise the elective franchise and who, while that
instrument remains in force unchanged, will be the sole organs through
which the will of the body politic can be expressed. 'People' for political
purposes must be considered synonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the people are
thus the source of political power, their governments, national and
state, have been limited by constitutions, and they have themselves
thereby set bounds to their own power, as against the sudden impulse
of mere majorities." 44
From the text of Article XV of our Constitution, requiring approval of
amendment proposals "by a majority of the votes cast at an election at
which the amendments are submitted to the people for their
ratification", it seems obvious as above-stated that "people" as therein
used must be considered synonymous with "qualified voters" as
enfranchised under Article V, section 1 of the Constitution — since only
"people" who are qualified voters can exercise the right of suffrage and
cast their votes.
3. Sound constitutional policy and the sheer necessity of
adequate safeguards as ordained by the Constitution and
implementing statutes to ascertain and record the will of the people in
free, orderly and honest elections supervised by the Comelec make it
imperative that there be strict adherence to the constitutional
requirements laid down for the process of amending in toto or in part
the supreme law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain
safeguards for the holding of barrio plebiscites thus: "SEC. 6.
Plebiscite. — A plebiscite may be held in the barrio when authorized by
a majority vote of the members present in the barrio assembly, there
being a quorum, or when called by at least four members of the barrio
council: Provided, however, That no plebiscite shall be held until after
thirty days from its approval by either body, and such plebiscite has
been given the widest publicity in the barrio, stating the date, time and
place thereof, the questions or issues to be decided, action to be taken
by the voters, and such other information relevant to the holding of the
plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that
"(A)ll duly registered barrio assembly members qualified to vote may
vote in the plebiscite. Voting procedures may be made either in writing
as in regular elections, and/or declaration by the voters to the board of
election tellers." 47
The subjects of the barrio plebiscites are likewise delimited thus: "A
plebiscite may be called to decide on the recall of any member of the
barrio council. A plebiscite shall be called to approve any budgetary,
supplemental appropriations or special tax ordinances" and the
required majority vote is specified: "(F)or taking action on any of the
above enumerated measures, majority vote of all the barrio assembly
members registered in the list of the barrio secretary is necessary." 48
The qualifications for voters in such barrio plebiscites and elections of
barrio officials 49 comply with the suffrage qualifications of Article V,
section 1 of the Constitution and provide that "(S)EC. 10. Qualifications
of Voters and Candidates. — Every citizen of the Philippines, twenty
one years of age or over, able to read and write, who has been a
resident of the barrio during the six months immediately preceding the
election, duly registered in the list of voters by the barrio secretary, who
170
is not otherwise disqualified, may vote or be a candidate in the barrio
elections." 50
IV
1. Since it appears on the face of Proclamation 1102 that the
mandatory requirements under the above-cited constitutional articles
have not been complied with and that no election or plebiscite for
ratification as therein provided as well as in section 16 of Article XVII of
the proposed Constitution itself 51 has been called or held, there
cannot be said to have been a valid ratification.
2. Petitioners raised serious questions as to the veracity and
genuineness of the reports or certificates of results purportedly
showing unaccountable discrepancies in seven figures in just five
provinces 52 between the reports as certified by the Department of
Local Governments and the reports as directly submitted by the
provincial and city executives, which latter reports respondents
disclaimed inter alia as not final and complete or as not signed; 53
whether the reported votes of approval of the proposed Constitution
conditioned upon the non-convening of the interim National Assembly
provided in Article XVII, section 1 thereof, 54 may be considered as
valid; the allegedly huge and uniform votes reported; and many others.
3. These questions only serve to justify and show the basic
validity of the universal principle governing written constitutions that
proposed amendments thereto or in replacement thereof may be
ratified only in the particular mode or manner prescribed therein by the
people. Under Article XV, section 1 of our Constitution, amendments
thereto may be ratified only in the one way therein provided, i.e. in an
election or plebiscite held in accordance with law and duly supervised
by the Commission on Elections, and which is participated in only by
qualified and duly registered voters. In this manner, the safeguards
provided by the election code generally assure the true ascertainment
of the results of the vote and interested parties would have an
opportunity to thresh out properly before the Comelec all such
questions in pre-proclamation proceedings.
4. At any rate, unless respondents seriously intend to question
the very statements and pronouncements in Proclamation 1102 itself
which shows on its face, as already stated, that the mandatory
amending process required by the (1935) Constitution was not
observed, the cases at bar need not reach the stage of answering the
host of questions, raised by petitioners against the procedure observed
by the Citizens Assemblies and the reported referendum results —
since the purported ratification is rendered nugatory by virtue of such
non-observance.
5. Finally, as to respondents' argument that the President
issued Proclamation 1102 "as "agent" of the Constitutional Convention"
55 under Resolution No. 5844 approved on November 22, 1973, and
"as agent of the Convention the President could devise other forms of
plebiscite to determine the will of the majority vis-a-vis the ratification of
the proposed Constitution." 56
The minutes of November 22, 1972, of the Convention, however, do
not at all support this contention. On the contrary, the said minutes fully
show that the Convention's proposal and "agency" was that the
President issue a decree precisely calling a plebiscite for the
ratification of the proposed new Constitution on an appropriate date,
under the charge of the Comelec, and with a reasonable period for an
information campaign, as follows:
12. Upon recognition by the Chair, Delegate Duavit moved for
the approval of the resolution, the resolution portion of which read as
follows:
"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971
Constitutional Convention propose to President Ferdinand E. Marcos
that a decree be issued calling a plebiscite for the ratification of the
proposed New Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor, and that
copies of this resolution as approved in plenary session be transmitted
to the President of the Philippines and the Commission on Elections for
implementation."
He suggested that in view of the expected approval of the final draft of
the new Constitution by the end of November 1972 according to the
Convention's timetable, it would be necessary to lay the groundwork for
the appropriate agencies of the government to undertake the
necessary preparation for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.) contended that the
resolution was unnecessary because section 15, Article XVII on the
Transitory Provision, which had already been approved on second and
third readings, provided that the new constitution should be ratified in a
plebiscite called for the purpose by the incumbent President. Delegate
Duavit replied that the provision referred to did not include the
appropriation of funds for the plebiscite and that, moreover, the
resolution was intended to serve formal notice to the President and the
Commission on Elections to initiate the necessary preparations.

xxx xxx xxx
12.4 Interpellating, Delegate Madarang suggested that a
reasonable period for an information campaign was necessary in order
to properly apprise the people of the implications and significance of
the new charter. Delegate Duavit agreed, adding that this was
precisely why the resolution was modified to give the President the
discretion to choose the most appropriate date for the plebiscite.
12.5 Delegate Laggui asked whether a formal communication to
the President informing him of the adoption of the new Constitution
would not suffice considering that under Section 15 of the Transitory
Provisions, the President would be duty-bound to call a plebiscite for its
ratification. Delegate Duavit replied in the negative, adding that the
resolution was necessary to serve notice to the proper authorities to
prepare everything necessary for the plebiscite.
12.6 In reply to Delegate Britanico, Delegate Duavit stated that
the mechanics for the holding of the plebiscite would be laid down by
the Commission on Elections in coordination with the President.
12.7 Delegate Catan inquired if such mechanics for the plebiscite
could include a partial lifting of martial law in order to allow the people
to assemble peaceably to discuss the new Constitution. Delegate
Duavit suggested that the Committee on Plebiscite and Ratification
could coordinate with the COMELEC on the matter.
12.8 Delegate Guzman moved for the previous question. The
Chair declared that there was one more interpellant and that a prior
reservation had been made for the presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his interpellation that there was
actually no need for such a resolution in view of the provision of section
15, Article XVII on the Transitory Provisions. Delegate Duavit
disagreed, pointing out that the said provision did not provide for the
funds necessary for the purpose.
13. Delegate Ozamiz then moved to close the debate and
proceed to the period of amendment.
13.1 Floor Leader Montejo stated that there were no reservations
to amend the resolution.
13.2 Delegate Ozamiz then moved for the previous question.
Submitted to a vote, the motion was approved.
Upon request of the Chair, Delegate Duavit restated the resolution for
voting.
14.1. Delegate Ordoñez moved for nominal voting. Submitted to a
vote, the motion was lost.
14.2. Thereupon, the Chair submitted the resolution to a vote. It
was approved by a show of hands. 57
I, therefore, vote to deny respondents' motion to dismiss and to give
due course to the petitions.
Promulgated: June 4, 1973 *
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my
concurrence.
I United States (Article IV, Section 3) and to repeal at least two statutes."
It is my view that to preserve the independence of the State, the
maintenance of the existing constitutional order and the defense of the
political and social liberties of the people, in times of a grave
emergency, when the legislative branch of the government is unable to
function or its functioning would itself threaten the public safety, the
Chief Executive may promulgate measures legislative in character, for
the successful prosecution of such objectives. For the "President's
power as Commander- in-chief has been transformed from a simple
power of military command to a vast reservoir of indeterminate powers
in time of emergency. ... In other words, the principal canons of
constitutional interpretation are ... set aside so far as concerns both the
scope of the national power and the capacity of the President to gather
unto himself all constitutionally available powers in order the more
effectively to focus them upon the task of the hour." (Corwin, The
President: Office & Powers, pp. 317, 318, [1948]).
1. The proclamation of martial rule, ushered the
commencement of a crisis government in this country. In terms of
power, crisis government in a constitutional democracy entails the
concentration of governmental power. "The more complete the
separation of powers in a constitutional system, the more difficult, and
yet the more necessary" according to Rossiter, "will be their fusion in
time of crisis... The power of the state in crisis must not only be
171
concentrated and expanded, it must be freed from the normal system
of constitutional and legal limitations. One of the basic features of
emergency powers is the release of the government from the paralysis
of constitutional restraints" (Rossiter, Constitutional Dictatorship, p.
290).
It is clearly recognized that in moments of peril the effective action of
the government is channeled through the person of the Chief
Executive. "Energy in the executive," according to Hamilton, "is
essential to the protection of the community against foreign attacks ...
to the protection of property against those irregular and high-handed
combinations which sometimes interrupt the ordinary course of justice;
to the security of liberty against the enterprises and assaults of
ambition, of faction, and of anarchy." (The Federalist, Number 70).
"The entire strength of the nation", said Justice Brewer in the Debs
case (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any
part of the land the full and free exercise of all national powers and the
security of all rights entrusted by the constitution to its care." The
marshalling and employment of the "strength of the nation" are matters
for the discretion of the Chief Executive. The President's powers in
time of emergency defy precise definition since their extent and
limitations are largely dependent upon conditions and circumstances.
2. The power of the President to act decisively in a crisis has
been grounded on the broad conferment upon the Presidency of the
Executive power, with the added specific grant of power under the
"Commander-in-Chief" clause of the constitution. The contours of such
powers have been shaped more by a long line of historical precedents
of Presidential action in times of crisis, rather than judicial
interpretation. Lincoln wedded his powers under the "commander-in-
chief" clause with his duty "to take care that the laws be faithfully
executed," to justify the series of extraordinary measures which he took
— the calling of volunteers for military service, the augmentation of the
regular army and navy, the payment of two million dollars from
unappropriated funds in the Treasury to persons unauthorized to
receive it, the closing of the Post Office to "treasonable
correspondence", the blockade of southern ports, the suspension of
the writ of habeas corpus, the arrest and detention of persons "who
were represented to him" as being engaged in or contemplating
"treasonable practices" — all this for the most part without the least
statutory authorization. Those actions were justified by the imperatives
of his logic, that the President may, in an emergency thought by him to
require it, partially suspend the constitution. Thus his famous question:
"Are all laws but one to be unexecuted, and the Government itself go to
pieces lest that one be violated?" The actions of Lincoln "assert for the
President", according to Corwin, "an initiative of indefinite scope and
legislative in effect in meeting the domestic aspects of a war
emergency." (Corwin, The President: Office & Powers, p. 280 [1948]).
The facts of the civil war have shown conclusively that in meeting the
domestic problems as a consequence of a great war, an indefinite
power must be attributed to the President to take emergency
measures. The concept of "emergency" under which the Chief
Executive exercised extraordinary powers underwent correlative
enlargement during the first and second World Wars. From its narrow
concept as an "emergency" in time of war during the Civil War and
World War I, the concept has been expanded in World War II to include
the "emergency" preceding the war and even after it. "The Second
World War" observed Corwin and Koenig, was the First World War writ
large, and the quasi-legislative powers of Franklin Roosevelt as
"Commander-in-Chief in wartime"... burgeoned correspondingly. The
precedents were there to be sure, most of them from the First World
War, but they proliferated amazingly. What is more, Roosevelt took his
first step toward war some fifteen months before our entrance into
shooting war. This step occurred in September, 1940, when he handed
over fifty so-called overage destroyers to Great Britain. The truth is,
they were not overage, but had been recently reconditioned and
recommissioned. ... Actually, what President Roosevelt did was to take
over for the nonce Congress's power to dispose of property of the
(Corwin & Koenig, The Presidency Today, New York University Press,
1956; sf Corwin, The President: Office and Powers, 1948.)
The creation of public offices is a power confided by the constitution to
Congress. And yet President Wilson, during World War I on the basis
of his powers under the "Commander-in-Chief" clause created "offices"
which were copied in lavish scale by President Roosevelt in World War
II. In April 1942, thirty-five "executive agencies" were purely of
Presidential creation. On June 7, 1941 on the basis of his powers as
"Commander-in-Chief", he issued an executive order seizing the North
American Aviation plant of Inglewood, California, where production
stopped as a consequence of a strike. This was justified by the
government as the exercise of presidential power growing out of the
"duty constitutionally and inherently resting upon the President to exert
his civil and military as well as his moral authority to keep the defense
efforts of the United States a going concern" as well as "to obtain
supplies for which Congress has appropriated money, and which it has
directed the President to obtain." On a similar justification, other plants
and industries were taken over by the government. It is true that in
Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863;
96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not
sustain the claims that the President could, as the Nation's Chief
Executive and Commander-in-Chief of the armed forces, validly order
the seizure of most of the country's steel mills. The Court however did
not face the naked question of the President's power to seize steel
plants in the absence of any congressional enactment or expressions
of policy. The majority of the Court found that this legislative
occupation of the field made untenable the President's claim of
authority to seize the plants as an exercise of inherent executive power
or as Commander-in-Chief. Justice Clark, in his concurrence to the
main opinion of the Court, explicitly asserted that the President does
possess, in the absence of restrictive legislation, a residual or resultant
power above or in consequence of his granted powers, to deal with
emergencies that he regards as threatening the national security. The
same view was shared with vague qualification by Justices Frankfurter
and Jackson, two of the concurring Justices. The three dissenting
Justices, speaking through Chief Justice Vinson, apparently went
further by quoting with approval a passage extracted from the brief of
the government in the case of United States vs. Midwest Oil Co., (236
U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the
power of the President to order withdrawals from the public domain not
only without Congressional sanction but even contrary to
Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked
as an authority to support the view that the President in times of a
grave crisis does not possess a residual power above or in
consequence of his granted powers, to deal with emergencies that he
regards as threatening the national security. The lesson of the Steel
Seizure case, according to Corwin and Koenig, "Unquestionably ...
tends to supplement presidential emergency power to adopt temporary
remedial legislation when Congress has been, in the judgment of the
President, unduly remiss in taking cognizance of and acting on a given
situation." (Corwin and Koenig, The Presidency Today, New York
University Press, 1956).
The accumulation of precedents has thus built up the presidential
power under emergency conditions to "dimensions of executive
prerogative as described by John Locke, of a power to wit, to fill
needed gaps in the law, or even to supersede it so far as may be
requisite to realize the fundamental law of nature and government,
namely, that as much as may be all the members of society are to be
preserved." (Corwin and Koenig, The Presidency Today).
In the light of the accumulated precedents, how could it be reasonably
argued therefore, that the President had no power to issue Presidential
Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since
these measures were considered indispensable to effect the desired
reforms at the shortest time possible and hasten the restoration of
normalcy? It is unavailing for petitioners to contend that we are not
faced by an actual "shooting war" for today's concept of the emergency
which justified the exercise of those powers has of necessity been
expanded to meet the exigencies of new dangers and crisis that
directly threaten the nation's continued and constitutional existence.
For as Corwin observed: "... today the concept of 'war' as a special
type of emergency warranting the realization of constitutional
limitations tends to spread, as it were, in both directions, so that there
is not only "the war before the war," but the 'war after the war.' Indeed,
in the economic crisis from which the New Deal may be said to have
issued, the nation was confronted in the opinion of the late President
with an 'emergency greater than war'; and in sustaining certain of the
New Deal measures the Court invoked the justification of 'emergency.'
In the final result constitutional practices of wartime have moulded the
Constitution to greater or less extent for peacetime as well, seem likely
to do so still more pronouncedly under fresh conditions of crisis."
(Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:
The second crisis is rebellion, when the authority of a constitutional
government is resisted openly by large numbers of citizens who are
engaged in violent insurrection against enforcement of its laws or are
bent on capturing it illegally or destroying it altogether. The third crisis,
one recognized particularly in modern times as sanctioning emergency
action by constitutional governments, is economic depression. The
economic troubles which plagued all the countries of the world in the
early thirties involved governmental methods of an unquestionably
dictatorial character in many democracies. It was thereby
acknowledged that an economic existence as a war or a rebellion. And
these are not the only cases which have justified extraordinary
governmental action in nations like the United States. Fire, flood,
drought, earthquake, riots, great strikes have all been dealt with by
unusual and of dictatorial methods. Wars are not won by debating
societies, rebellions are not suppressed by judicial injunctions,
reemployment of twelve million jobless citizens will not be effected
through a scrupulous regard for the tenets of free enterprise, hardships
caused by the eruptions of nature cannot be mitigated letting nature
take its course. The Civil War, the depression of 1933 and the recent
global conflict were not and could not have been successfully resolved
by governments similar to those of James Buchanan, William Howard
Taft, or Calvin Coolidge. (Rossiter, Constitutional Dictatorship — Crisis
of Government in the Modern Democracies, p. 6 [1948).
II
We are next confronted with the insistence of Petitioners that the
referendum in question not having been done inaccordance with the
172
provisions of existing election laws, which only qualified voters who are
allowed to participate, under the supervision of the Commission on
Elections, the new Constitution, should therefore be a nullity. Such an
argument is predicated upon an assumption, that Article XV of the
1935 Constitution provides the method for the revision of the
constitution, and automatically apply in the final approval of such
proposed new Constitution the provisions of the election law and those
of Article V and X of the old Constitution. We search in vain for any
provision in the old charter specifically providing for such procedure in
the case of a total revision or a rewriting of the whole constitution.
1. There is clearly a distinction between revision and
amendment of an existing constitution. Revision may involve a
rewriting of the whole constitution. The act of amending a constitution,
on the other hand, envisages a change of only specific provisions. The
intention of an act to amend is not the change of the entire constitution
but only the improvement of specific parts of the existing constitution of
the addition of provisions deemed essential as a consequence of new
constitutions or the elimination of parts already considered obsolete or
unresponsive to the needs of the times.1 The 1973 Constitution is not
a mere amendment to the 1935 Constitution. It is a completely new
fundamental charter embodying new political, social and economic
concepts.
According to an eminent authority on Political Law, "The Constitution of
the Philippines and that of the United States expressly provide merely
for methods of amendment. They are silent on the subject of revision.
But this is not a fatal omission. There is nothing that can legally prevent
a convention from actually revising the Constitution of the Philippines
or of the United States even were such conventions called merely for
the purpose of proposing and submitting amendments to the people.
For in the final analysis, it is the approval of the people that gives
validity to any proposal of amendment or revision." (Sinco, Philippine
Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the
method or procedure for the revision or for the approval of a new
constitution, should it now be held, that the people have placed such
restrictions on themselves that they are not disabled from exercising
their right as the ultimate source of political power from changing the
old constitution which, in their view, was not responsive to their needs
and in adopting a new charter of government to enable them to rid
themselves from the shackles of traditional norms and to pursue with
new dynamism the realization of their true longings and aspirations,
except in the manner and form provided by Congress for previous
plebiscites? Was not the expansion of the base of political
participation, by the inclusion of the youth in the process of ratification
who after all constitute the preponderant majority more in accord with
the spirit and philosophy of the constitution that political power is
inherent in the people collectively? As clearly expounded by Justice
Makasiar, in his opinion, in all the cases cited where the Courts held
that the submission of the proposed amendment was illegal due to the
absence of substantial compliance with the procedure prescribed by
the constitution, the procedure prescribed by the state Constitution, is
so detailed, that specified the manner in which such submission shall
be made, the persons qualified to vote for the same, the date of
election and other definite standards, from which the court could safely
ascertain whether or not the submission was in accordance with the
Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied
upon in one of the dissenting opinions involved in the application of the
provisions of the state Constitution of Minnesota which clearly
prescribed in detail the procedure under which the Constitution may be
amended or revised.2 This is not true with our Constitution. In the case
of revision there are no "standards meet for judicial judgment."3
The framers of our Constitution were free to provide in the Constitution
the method or procedure for the revision or rewriting of the entire
constitution, and if such was their intention, they could and should have
so provided. Precedents were not wanting. The constitutions of the
various states of the American Union did provide for procedures for
their amendment and methods for their revision.4
Certainly We cannot, under the guise of interpretation, modify, revise,
amend, remodel or rewrite the 1935 Charter. To declare what the law
is, or has been, is a judicial power, but to declare what the law shall be
is not within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided
the method or procedure for the revision or complete change of the
Constitution, it is evident that the people have reserved such power in
themselves. They decided to exercise it not through their legislature,
but through a Convention expressly chosen for that purpose. The
Convention as an independent and sovereign body has drafted not an
amendment but a completely new Constitution, which decided to
submit to the people for approval, not through an act of Congress, but
by means of decrees to be promulgated by the President. In view of
the inability of Congress to act, it was within the constitutional powers
of the President, either as agent of the Constitutional Convention, or
under his authority under martial law, to promulgate the necessary
measures for the ratification of the proposed new Constitution. The
adoption the new Charter was considered as a necessary basis for all
the reforms set in motion under the new society, to root out the causes
of unrest. The imperatives of the emergency underscored the urgency
of its adoption. The people in accepting such procedure and in voting
overwhelmingly for the approval of the new Constitution have, in effect,
ratified the method and procedure taken. "When the people adopt
completely revised or new constitution," said the Court in Wheeler v.
Board of Trustees (37 SE 2nd 322, 326-330), "the framing or
submission of the instrument is not what gives it binding force and
effect. The fiat of the people, and only the fiat of the people, can
breathe life into a constitution."
This has to be so because, in our political system, all political power is
inherent in the people and free governments are founded on their
authority and instituted for their benefit. Thus Section 1 of Article II of
the 1935 Constitution declares that: "Sovereignty resides in the people
and all government authority emanate from them." Evidently the term
people refers to the entire citizenry and not merely to the electorate, for
the latter is only a fraction of the people and is only an organ of
government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority
to nullify an entire Constitution that is already effective as it has been
accepted and acquiesced in by the people as shown by their
compliance with the decree promulgated thereunder, their cooperation
in its implementation, and is now maintained by the Government that is
in undisputed authority and dominance?
Of course it is argued that acquiescence by the people can be deduced
from their acts of conformity, because under a regime of martial law the
people are bound to obey and act in conformity with the orders of the
President, and has absolutely no other choice. The flaw of this
argument lies in its application of a mere theoretical assumption based
on the experiences of other nations on an entirely different factual
setting. Such an assumption flounders on the rock of reality. It is true
that as a general rule martial law is the use of military forces to perform
the functions of civil government. Some courts have viewed it as a
military regime which can be imposed in emergency situations. In other
words, martial rule exists when the military rises superior to the civil
power in the exercise of some or all the functions of government. Such
is not the case in this country. The government functions thru its
civilian officials. The supremacy of the civil over the military authority is
manifest. Except for the imposition of curfew hours and other
restrictions required for the security of the State, the people are free to
pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the
oppressive features, generally associated with a regime of Martial law
in other countries. "Upon the other hand the masses of our people
have accepted it, because of its manifold blessings. The once
downtrodden rice tenant has at long last been emancipated — a
consummation devoutly wished by every Philippine President since the
1930's. The laborer now holds his head high because his rights are
amply protected and respected." * A new sense of discipline has swiftly
spread beyond the corridors of government into the social order.
Responding to the challenges of the New Society, the people have
turned in half a million loose firearms, paid their taxes on undeclared
goods and income in unprecedented numbers and amount, lent their
labors in massive cooperation — in land reform, in the repair of dikes,
irrigation ditches, roads and bridges, in reforestation, in the physical
transformation of the environment to make ours a cleaner and greener
land. "The entire country is turning into one vast garden growing food
for the body, for thought and for the soul." * More important the
common man has at long last been freed from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social
structure of the Philippines" reported Frank Valeo to the United States
Senate. "President Marcos has been prompt and sure-footed in using
the power of presidential decree under martial law for this purpose. He
has zeroed in on areas which have been widely recognized as prime
sources of the nation's difficulties — land tenancy, official corruption,
tax evasion and abuse of oligarchic economic power. Clearly he knows
his targets ... there is marked public support for his leadership..."
(Bulletin Today, March 3 and 4, 1973)..
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in
the April 11 issue of The New York Times:
During his first Presidential term (1965-1969), Mr. Marcos was
discouraged by the failure of legislators to approve urgently needed
reforms. He found his second term further frustrated by spread riots, a
Maoist uprising in Luzon and a much more serious Moslem
insurrection in the southern islands from Mindanao across the Sulu
archipelago to the frontier regions of Malaysia and Indonesia. Manila
claims this war is Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of power and makes
no promise as to when he will relinquish them. But, while fettering a
free press, terminating Congress and locking up some opponents
(many of whom were later amnestied), he has hauled the Philippines
out of stagnation.
Sharecropping is being ended as more than three million acres of
arable land are redistributed with state funds. New roads have been
173
started. The educational system is undergoing revision, a corruption is
diminished. In non-communist Asia it is virtually impossible to wholly
end it and this disagreeable phenomenon still reaches very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by
creating an agrarian middle-class to replace the archaic sharecropper-
absentee landlord relationship. He is even pushing for a birth control
program with the tacit acceptance of the Catholic Church. He has
started labor reforms and increased wages. (Daily Express, April 15,
1973)
As explained in this writer's opinion of April 24, 1973 on the
"Constancia" and "Manifestation" of counsel for petitioners:
The new Constitution is considered effective "if the norms created in
conformity with it are by and large applied and obeyed. As soon as the
old Constitution loses its effectiveness and the new Constitution has
become effective, the acts that appear with the subjective meaning of
creating or applying legal norms are no longer interpreted by
presupposing the old basic norm, but by presupposing the new one.
The statutes issued under the old Constitution and not taken over are
no longer regarded as valid, and the organs authorized by the old
Constitution no longer competent." (Kelsen, Pure Theory of Law,
[1967].)
The essentially political nature of the question is at once made
manifest by understanding that in the final analysis, what is assailed is
not merely the validity of Proclamation No. 1102 of the President,
which is merely declaratory of the fact of approval or ratification, but
the legitimacy of the government. It is addressed more to the
framework and political character of this Government which now
functions under the new Charter. It seeks to nullify a Constitution that is
already effective.
In such a situation, We do not see how the question posed by
petitioners could be judicially decided. "Judicial power presupposes an
established government capable of enacting laws and enforcing their
execution, and of appointing judges to expound and administer them. If
it decides at all as a court, it necessarily affirms the existence and
authority of the government under which it is exercising judicial power."
(Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has
been effected through political action, the Court whose existence is
affected by such change is, in the words of Mr. Melville Fuller Weston,
"precluded from passing upon the fact of change by a logical difficulty
which is not to be surmounted."5 Such change in the organic law
relates to the existence of a prior point in the Court's "chain of title" to
its authority and "does not relate merely to a question of the horizontal
distribution of powers."6 It involves in essence a matter which "the
sovereign has entrusted to the so-called political departments of
government or has reserved to be settled by its own extra
governmental action."7
The non-judicial character of such a question has been recognized in
American law. "From its earliest opinions this Court has consistently
recognized," said Justice Frankfurter, in his illuminating dissent in
Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class
of controversies which do not lend themselves to judicial standards and
judicial remedies. To classify the various instances as "political
questions" is rather a form of stating this conclusion than revealing of
analysis ... The crux of the matter is that courts are not fit instruments
of decision where what is essentially at stake is the composition of
those large contests of policy traditionally fought out in non-judicial
forums, by which governments and the actions of governments are
made and unmade."
The diversity of views contained in the opinions of the members of this
Court, in the cases at bar, cannot be a case on "right" or "wrong" views
of the Constitution. It is one of attitudes and values. For there is
scarcely any principle, authority or interpretation which has not been
countered by the opposite. At bottom, it is the degree of one's faith —
in the nation's leadership and in the maturity of judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and
the conclusion of this Court in its judgment of March question becomes
wholly moot except for this consideration, that, when the judges as
individuals or as a body of individuals come to decide which king or
which constitution they will support and assert to represent, it may
often be good judgment for them to follow the lead of the men who as a
practical matter are likely to be looked to by the people as more
representative of themselves and conversely are likely to be more
directly in touch with popular sentiment. If, however, the judges hold
too strong views of their own to be able to take this course, they may
follow their own leads at their own hazard. No question of law is
involved. (Political Questions, 38 Harvard Law Review [1924-25], pp.
305-309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION

(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY
PROVIDING FOR AMENDMENT AND REVISION @
1. Alaska (1959) — Art. XIII. Amendment and Revision.
Sec. 1. Amendments. Amendments to this constitution may be
proposed by a two-thirds vote of each house of the legislature. The
secretary of state shall prepare a ballot title and proposition
summarizing each proposed amendment, and shall place them on the
ballot for the next statewide election. If a majority of the votes cast on
the proposition favor the amendment, it becomes effective thirty days
after the certification of the election returns by the secretary of state.
Sec. 2. Convention. The legislature may call constitutional
conventions at any time.
Sec. 3. Call by referendum. If during any ten-year period a
constitutional convention has not been held, the secretary of state shall
place on the ballot for the next general election the question: "Shall
there be a Constitutional Convention?" If a majority of the votes cast on
the question are in the negative, the question need not be placed on
the ballot until the end of the next ten-year period. If a majority of the
votes cast on the question are in the affirmative, delegates to the
convention shall be chosen at the next regular statewide election,
unless the legislature provides for the election of the election delegates
at a special election. The secretary of state shall issue the call for the
convention. Unless other provisions have been made by law, the call
shall conform as nearly as possible to the act calling the Alaska
Constitutional Convention of 1955, including, but not limited to, number
of members, districts, election and certification of delegates, and
submission and ratification of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power
to amend or revise the constitution, subject only to ratification by the
people. No call for a constitutional convention shall limit these powers
of the convention.
2. California (1879) — Art. XVIII. Amending and Revising the
Constitution.
Sec. 1. Constitutional amendments. Any amendment or
amendments to this Constitution may be proposed in the Senate or
Assembly, and if two-thirds of all the members elected to each of the
houses shall vote in favor thereof, such proposed amendment or
amendments shall be entered in their Journals, with the yeas and nays
taken thereon; and it shall be the duty of the Legislature to submit such
proposed amendment or amendments to the people in such manner,
and at such time, and after such publication as may be deemed
expedient. Should more amendments than one be submitted at the
same election they shall be so prepared and distinguished, by numbers
or otherwise, that each can be voted on separately. If the people shall
approve and ratify such amendment or amendments, or any of them,
by a majority of the qualified electors voting thereon such amendment
or amendments shall become a part of this constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the
members elected to each branch of the Legislature shall deem it
necessary to revise this Constitution, they shall recommend to the
electors to vote at the next general for or against a Convention for that
purpose, and if a majority of the electors voting at such election on the
proposition for a Convention shall vote in favor thereof, the Legislature
shall, at its next session, provide by law for calling the same. The
Convention shall consist of a number of delegates not to exceed that of
both branches of the Legislature, who shall be chosen in the same
manner, and have the same qualifications, as Members of the
Legislature. The delegates so elected shall meet within three months
after their election at such place as the Legislature may direct. At a
special election to be provided for by law, the Constitution that may be
agreed upon by such Convention shall be submitted to the people for
their ratification or rejection, in such manner as the Convention may
determine. The returns of such election shall, in such manner as the
Convention shall direct, be certified to the Executive of the State, who
shall call to his assistance the Controller, Treasurer, and Secretary of
State, and compare the returns so certified to him; and it shall be the
duty of the Executive to declare, by his proclamation, such
Constitution, as may have been ratified by a majority of all the votes
cast at such special election, to be the Constitution of the State of
California.
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly
may at any time be a vote of two-thirds of the members elected to each
house, recommend to the electors of the state, to vote at the next
general election for or against a convention to revise, alter and amend
this constitution; and if a majority of those voting on the question shall
declare in favor of such convention, the general assembly shall, at the
next session, provide for the calling thereof. The number of members
of the convention shall be twice that of the senate and they shall be
elected in the same manner, at the same places, and in the same
174
districts. The general assembly shall, in the act calling the convention,
designate the day, hour and place of its meeting; fix the pay of its
members and officers, and provide for the payment of the same,
together with the necessary expenses of the convention. Before
proceeding, the members shall take an oath to support the constitution
of the United States, and of the state of Colorado, and to faithfully
discharge their duties as members of the convention. The qualifications
of members shall be the same as of members of the senate; and
vacancies occurring shall be filled in the manner provided for filling
vacancies in the general assembly. Said convention shall meet within
three months after such election and prepare such revisions,
alterations or amendments to the constitution as may be deemed
necessary; which shall be submitted to the electors for their ratification
or rejection at an election appointed by the convention for that purpose,
not less than two nor more than six months after adjournment thereof;
and unless so submitted and approved by a majority of the electors
voting at the election, no such revision, alteration or amendment shall
take effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment
or amendments to this constitution may be proposed in either house of
the general assembly, and if the same shall be voted for by two-thirds
of all the members elected to each house, such proposed amendment
or amendments, together with the ayes and noes of each house
hereon, shall be entered in full on their respective journals; the
proposed amendment or amendments shall be published with the laws
of that session of the general assembly, and the secretary of state shall
also cause the said amendment or amendments to be published in full
in not more than one newspaper of general circulation in each county,
for four successive weeks previous to the next general election for
members of the general assembly; and at said election the said
amendment or amendments shall be submitted to the qualified electors
of the state for their approval or rejection, and such as are approved by
a majority of those voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any
general election, each of said amendments shall be voted upon
separately and votes thereon cast shall be separately counted the
same as though but one amendment was submitted. But the general
assembly shall have no power to propose amendments to more than
six articles of this constitution at the same session.
4. Delaware (1897) — Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly;
procedure. Any amendment or amendments to this Constitution may
be proposed in the Senate or House of Representatives; and if the
same shall be agreed to by two-thirds of all the members elected to
each House, such proposed amendment or amendments shall be
entered on their journals, with the yeas and nays taken thereon, and
the Secretary of State shall cause such proposed amendment or
amendments to be published three months before the next general
election in at least three newspapers in each County in which such
newspaper shall be published; and if in the General Assembly next
after the said election such proposed amendment or amendments shall
upon yea and nay vote be agreed to by two-thirds of all the members
elected to each House, the same shall thereupon become part of the
Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of
delegates; quorum; powers and duties; vacancies. The General
Assembly by a two-thirds vote of all the members elected to each
House may from time to time provide for the submission to the qualified
electors of the State at the general election next thereafter the
question, "Shall there be a Convention to revise the Constitution and
amend the same?;" and upon such submission, if a majority of those
voting on said question shall decide in favor of a Convention for such
purpose, the General Assembly at its next session shall provide for the
election of delegates to such convention at the next general election.
Such Convention shall be composed of forty-one delegates, one of
whom shall be chosen from each Representative District by the
qualified electors thereof, and two of whom shall be chosen from New
Castle County, two from Kent County and two from Sussex County by
the qualified electors thereof respectively. The delegates so chosen
shall convene at the Capital of the State on the first Tuesday in
September next after their election. Every delegate shall receive for his
services such compensation as shall be provided by law. A majority of
the Convention shall constitute a quorum for the transaction of
business. The Convention shall have the power to appoint such
officers, employees and assistants as it may be deem necessary, and
fix their compensation, and provide for the printing of its documents,
journals, debates and proceedings. The Convention shall determine
the rules of its proceedings, and be the judge of the elections, returns
and qualifications of its members. Whenever there shall be a vacancy
in the office of delegate from any district or county by reason of failure
to elect, ineligibility, death, resignation or otherwise, a writ of election to
fill such vacancy shall be issued by the Governor, and such vacancy
shall be filled by the qualified electors of such district or county.
5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the
Legislature, at any regular session, or at any special or extra-ordinary
session thereof called for such purpose either in the governor's original
call or any amendment thereof, may propose the revision or
amendment of any portion or portions of this Constitution. Any such
revision or amendment may relate to one subject or any number of
subjects, but no amendment shall consist of more than one revised
article of the Constitution.
If the proposed revision or amendment is agreed to by three-fifths of
the members elected to each house, it shall be entered upon their
respective journals with the yeas and nays and published in one
newspaper in each county where a newspaper is published for two
times, one publication to be made not earlier than ten weeks and the
other not later than six weeks, immediately preceding the election at
which the same is to be voted upon, and thereupon submitted to the
electors of the State for approval or rejection at the next general
election, provided, however, that such revision or amendment may be
submitted for approval or rejection in a special election under the
conditions described in and in the manner provided by Section 3 of
Article XVII of the Constitution. If a majority of the electors voting upon
the amendment adopt such amendment the same shall become a part
of this Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature,
by a vote of two-thirds of all the members of both Houses, shall
determine that a revision of this Constitution is necessary, such
determination shall be entered upon their respective Journals, with
yea's and nay's thereon. Notice of said action shall be published
weekly in one newspaper in every county in which a newspaper is
published, for three months preceding the next general election of
Representatives, and in those countries where no newspaper is
published, notice shall be given by posting at the several polling
precincts in such counties for six weeks next preceding said election.
The electors at said election may vote for or against the revision in
question. If a majority of the electors so voting be in favor of revision,
the Legislature chosen at such election shall provide by law for a
Convention to revise the Constitution, said Convention to be held
within six months after the passage of such law. The Convention shall
consist of a number equal to the membership of the House of
Representatives, and shall be apportioned among the several counties
in the same manner as members of said House.
6. Idaho (1890) — Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or
amendments to this Constitution may be proposed in either branch of
the legislature, and if the same shall be agreed to by two-thirds of all
the members of each of the two houses, voting separately, such
proposed amendment or amendments shall, with the yeas and nays
thereon, be entered on their journals, and it shall be the duty of the
legislature to submit such amendment or amendments to the electors
of the state at the next general election, and cause the same to be
published without delay for at least six consecutive weeks, prior to said
election, in not less than one newspaper of the general circulation
published in each county; and if a majority of the electors shall ratify
the same, such amendment or amendments shall become a part of this
Constitution.
Sec. 3. Revision or amendments by convention. Whenever two-
thirds of the members elected to each branch of the legislature shall
deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next
general election, for or against a convention, and if a majority of all the
electors voting at said election shall have voted for a convention, the
legislature shall at the next session provide by law for calling the same;
and such convention shall consist of a number of members, not less
than double the number of the most numerous branch of the
legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
Sec. 3. Convention. At the general election to be held in the year
one thousand eight hundred and seventy, and in each tenth year
thereafter, and also at such times as the General Assembly may, by
law, provide, the question, "Shall there be a Convention to revise the
Constitution, and amend the same?" shall be decided by the electors
qualified to vote for members of the General Assembly; and in case a
majority of the electors so qualified, voting at such election, for and
against such proposition, shall decide in favor of a Convention for such
purpose, the General Assembly, at its next session, shall provide by
law for the election of delegates to such Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature;
submission to electors. Any amendment or amendments to this
constitution may be proposed in the senate or house of
representatives. If the same shall be agreed to by 2/3 of the members
elected to each house, such amendment or amendments shall be
entered on the journals, respectively, with the yeas and nays taken
thereon; and the same shall be submitted to the electors at the next
spring or autumn election thereafter, as the legislature shall direct; and,
if a majority of the electors qualified to vote for members of the
175
legislature voting thereon shall ratify and approve such amendment or
amendments, the same shall become part of the constitution.
Sec. 4. General revision; convention; procedure. At the Biennial
Spring Election to be held in the year 1961, in each sixteenth year
thereafter and at such times as may be provided by law, the question
of a General Revision of the Constitution shall be submitted to the
Electors qualified to vote for members of the Legislature. In case a
majority of the Electors voting on the question shall decide in favor of a
Convention for such purpose, at an Election to be held not later than
four months after the Proposal shall have been certified as approved,
the Electors of each House of Representatives District as then
organized shall Elect One Delegate for each Electors of each
Senatorial District as then organized shall Elect One Delegate for each
State Senator to which the District is entitled. The Delegates so elected
shall convene at the Capital City on the First Tuesday in October next
succeeding such election, and shall continue their sessions until the
business of the convention shall be completed. A majority of the
delegates elected shall constitute a quorum for the transaction of
business. ... No proposed constitution or amendment adopted by such
convention shall be submitted to the electors for approval as
hereinafter provided unless by the assent of a majority of all the
delegates elected to the convention, the yeas and nays being entered
on the journal. Any proposed constitution or amendments adopted by
such convention shall be submitted to the qualified electors in the
manner provided by such convention on the first Monday in April
following the final adjournment of the convention; but, in case an
interval of at least 90 days shall not intervene between such final
adjournment and the date of such election. Upon the approval of such
constitution or amendments by a majority of the qualified electors
voting thereon such constitution or amendments shall take effect on
the first day of January following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the
Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting
makes amendment valid. Whenever a majority of both houses of the
legislature shall deem it necessary to alter or amend this Constitution,
they may proposed such alterations or amendments, which proposed
amendments shall be published with the laws which have been passed
at the same session, and said amendments shall be submitted to the
people for their approval or rejection at any general election, and if it
shall appear, in a manner to be provided by law, that a majority of all
the electors voting at said election shall have voted for and ratified
such alterations or amendments, the same shall be valid to all intents
and purposes as a part of this Constitution. If two or more alterations or
amendments shall be submitted at the same time, it shall be so
regulated that the voters shall vote for or against each separately.
Sec. 2. Revision of constitution. Whenever two-thirds of the
members elected to each branch of the legislature shall think it
necessary to call a convention to revise this Constitution, they shall
recommend to the electors to vote at the next general election for
members of the legislature, for or against a convention; and if a
majority of all the electors voting at said election shall have voted for a
convention, the legislature shall, at their next session, provide by law
for calling the same. The convention shall consist of as many members
as the House of Representatives, who shall be chosen in the same
manner, and shall meet within three months after their election for the
purpose aforesaid.
Sec. 3. Submission to people of revised constitution drafted at
convention. Any convention called to revise this constitution shall
submit any revision thereof by said convention to the people of the
State of Minnesota for their approval or rejection at the next general
election held not less than 90 days after the adoption of such revision,
and, if it shall appear in the manner provided by law that three-fifths of
all the electors voting on the question shall have voted for and ratified
such revision, the same shall constitute a new constitution of the State
of Minnesota. Without such submission and ratification, said revision
shall be of no force or effect. Section 9 of Article IV of the Constitution
shall not apply to election to the convention.
10. Nevada (1864) — Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment or
amendments to this Constitution may be proposed in the Senate or
Assembly; and if the same shall be agreed to by a Majority of all the
members elected to each of the two houses, such proposed
amendment or amendments shall be entered on their respective
journals, with the Yeas and Nays taken thereon, and referred to the
Legislature then next to be chosen, and shall be published for three
months next preceding the time of making such choice. And if in the
Legislature next chosen as aforesaid, such proposed amendment or
amendments shall be agreed to by a majority of all the members
elected to each house, then it shall be the duty of the Legislature to
submit such proposed amendment or amendments to the people, in
such manner and at such time as the Legislature shall prescribe; and if
the people shall approve and ratify such amendment or amendments
by a majority of the electors qualified to vote for members of the
Legislature voting thereon, such amendment or amendments shall
become a part of the Constitution.

Sec. 2. Convention for revision of constitution; procedure. If at any
time the Legislature by a vote of two-thirds of the Members elected to
each house, shall determine that it is necessary to cause a revision of
this entire Constitution they shall recommend to the electors at the next
election for Members of the Legislature, to vote for or against a
convention, and if it shall appear that a majority of the electors voting at
such election, shall have voted in favor of calling a Convention, the
Legislature shall, at its next session provide by law for calling a
Convention to be holden within six months after the passage of such
law, and such Convention shall consist of a number of Members not
less that of both branches of the legislature. In determining what is a
majority of the electors voting such election, reference shall be had to
the highest number of vote cast at such election for the candidates of
any office or on any question.
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. It shall be the duty of
the selectmen, and assessors, of the several towns and places in this
state, in warning the first annual meetings for the choice of senators,
after the expiration of seven years from the adoption of this
constitution, as amended, to insert expressly in the warrant this
purpose, among the others for the meeting, to wit, to take the sense of
the qualified voters on the subject of a revision of the constitution; and,
the meeting being warned accordingly, and not otherwise, the
moderator shall take the sense of the qualified voters present as to the
necessity of a revision; and a return of the number of votes for and
against such necessity, shall be made by the clerk sealed up, and
directed to the general court at their then next session; and if, it shall
appear to the general court by such return, that the sense of the people
of the state has taken, and that, in the opinion of the majority of the
qualified voters in the state, present and voting at said meetings, there
is a necessity for a revision of the constitution, it shall be the duty of the
general court to call a convention for that purpose, otherwise the
general court shall direct the sense of the people to be taken, and then
proceed in the manner before mentioned. The delegates to be chosen
in the same manner, and proportioned, as the representatives to the
general court; provided that no alterations shall be made in this
constitution, before the same shall be laid before the towns and
unincorporated places, and approved by two thirds of the qualified
voters present and voting on the subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote.
Any amendment or amendments to this Constitution may be proposed
in either branch of the Legislature, and if the same shall be agreed to
by a majority of all the members elected to each of the two houses,
such proposed amendment or amendments shall, with yeas and nays
thereon, be entered in their journals and referred by the Secretary of
State to the people for their approval or rejection, at the next regular
general election, except when the Legislature, by a two-thirds vote of
each house, shall order a special election for that purpose. If a majority
of all the electors voting at such election shall vote in favor of any
amendment thereto, it shall thereby become a part of this Constitution.
If two or more amendments are proposed they shall be submitted in
such manner that electors may vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which
is submitted to the voters shall embrace more than one general subject
and the voters shall vote separately for or against each proposal
submitted; provided, however, that in the submission of proposals for
the amendment of this Constitution by articles, which embrace one
general subject, each proposed article shall be deemed a single
proposals or proposition
Sec. 2. Constitutional convention to propose amendments or new
constitution. No convention shall be called by the Legislature to
propose alterations, revisions, or amendments to this Constitution, or
to propose a new Constitution, unless the law providing for such
convention shall first be approved by the people on a referendum vote
at a regular or special election, and any amendments, alterations,
revisions, or new Constitution, proposed by such convention, shall be
submitted to the electors of the State at a general or special election
and be approved by a majority of the electors voting thereon, before
the same shall become effective Provided, That the question of such
proposed convention shall be submitted to the people at least once in
every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or
amendments to this Constitution may be proposed in either branch of
the legislative assembly, and if the same shall be agreed to by a
majority of all the members elected to each of the two houses, such
proposed amendment or amendments shall, with the yeas and nays
thereon, be entered in their journals and referred by the secretary of
state to the people for their approval or rejection, at the next regular
election, except when the legislative assembly shall order a special
election for that purpose. If a majority of the electors voting on any
176
such amendment shall vote in favor thereof, it shall thereby become a
part of this Constitution. The votes for and against such amendment, or
amendments, severally, whether proposed by the legislative assembly
or by initiative petition, shall be canvassed by the secretary of state in
the presence of the governor, and if it shall appear to the governor that
the majority of the votes cast at said election on said amendment, or
amendments, severally, are cast in favor thereof, it shall be his duty
forthwith after such canvass, by his proclamation, to declare the said
amendment, or amendments, severally, having received said majority
of votes to have been adopted by the people of Oregon as part of the
Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. When two or more
amendments shall be submitted in the manner aforesaid to the voters
of this state at the same election, they shall be so submitted that each
amendment shall be voted on separately. No convention shall be
called to amend or propose amendments to this Constitution, or to
propose a new Constitution, unless the law providing for such
convention shall first be approved by the people on a referendum vote
at a regular general election. This article shall not be construed to
impair the right of the people to amend this Constitution by vote upon
an initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power
to amend this Constitution granted by section 1, Article IV, and section
1 of this Article, a revision of all or part of this Constitution may be
proposed in either house of the Legislative Assembly and, if the
proposed revision is agreed to by at least two-thirds of all the members
of each house, the proposed revision shall, with the yeas and nays
thereon, be entered in their journals and referred by the Secretary of
State to the people for their approval or rejection, notwithstanding
section 1, Article IV of this Constitution, at the next regular state-wide
primary election, except when the Legislative Assembly orders a
special election for that purpose. A proposed revision may deal with
more than one subject and shall be voted upon as one question. The
votes for and against the proposed revision shall be canvassed by the
Secretary of State in the presence of the Governor and, if it appears to
the Governor that the majority of the votes cast in the election on the
proposed revision are in favor of the proposed revision, he shall,
promptly following the canvass, declare, by his proclamation, that the
proposed revision has received a majority of votes and has been
adopted by the people as the Constitution of the State of Oregon, as
the case may be. The revision shall be in effect as the Constitution or
as a part of this Constitution from the date of such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any
amendments to his Constitution may be proposed in either house of
the Legislature, and if two-thirds of all the members elected of the two
houses, shall vote in favor thereof, such proposed amendment or
amendments shall be entered on their respective journals with the yeas
and nays taken thereon; and the Legislature shall cause the same to
be published in at least one newspaper in every county of the State,
where a newspaper is published, for two months immediately
preceding the next general election, at which time the said amendment
or amendments shall be submitted to the electors of the State, for their
approval or rejection, and if a majority of the electors voting thereon
shall approve the same, such amendment or amendments shall
become part of this Constitution. If two or more amendments are
proposed, they shall be so submitted as to enable the electors to vote
on each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever two-
thirds of the members, elected to each branch of the Legislature, shall
deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next
general election, for or against a convention, and, if a majority of all the
electors, voting at such election, shall vote for a convention. The
Legislature, at its next session, shall provide by law for calling the
same. The convention shall consist of not less than the number of
members in both branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or
amendments to this Constitution may be proposed in either branch of
the legislature, and, if the same shall be agreed to by two-thirds of all
the members of the two houses, voting separately, such proposed
amendment or amendments shall, with the yeas and nays thereon, be
entered on their journals, and it shall be the duty of the legislature to
submit such amendment or amendments to the electors of the state at
the next general election, in at least one newspaper of general
circulation, published in each county, and if a majority of the electors
shall ratify the same, such amendment or amendments shall become a
part of this constitution.
Sec. 2. How voted for. If two or more amendments are proposed,
they shall be submitted in such manner that the electors shall vote for
or against each of them separately.
Sec. 3. Constitutional convention; provision for. Whenever two-thirds
of the members elected to each branch of the legislature shall deem it
necessary to call a convention to revise or amend this constitution,
they shall recommend to the electors to vote at the next general
election for or against a convention, and if a majority of all the electors
voting at such election shall have voted for a convention, the
legislature shall at the next session provide by a law for calling the
same; and such convention shall consist of a number of members, not
less than double that of the most numerous branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such
convention shall have no validity until it has been submitted to and
adopted by the people.
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with preliminary
injunction relates to the power of the incumbent President of the
Philippines to propose amendments to the present Constitution in the
absence of the interim National Assembly which has not been
convened.
On September 2, 1976, President Ferdinand E. Marcos issued
Presidential Decree No. 991 calling for a national referendum on
October 16, 1976 for the Citizens Assemblies ("barangays") to resolve,
among other things, the issues of martial law, the I . assembly, its
replacement, the powers of such replacement, the period of its
existence, the length of the period for tile exercise by the President of
his present powers.1
Twenty days after or on September 22, 1976, the President issued
another related decree, Presidential Decree No. 1031, amending the
previous Presidential Decree No. 991, by declaring the provisions of
presidential Decree No. 229 providing for the manner of voting and
canvass of votes in "barangays" (Citizens Assemblies) applicable to
the national referendum-plebiscite of October 16, 1976. Quite
relevantly, Presidential Decree No. 1031 repealed Section 4, of
Presidential Decree No. 991, the full text of which (Section 4) is quoted
in the footnote below.2
On the same date of September 22, 1976, the President issued
Presidential Decree No. 1033, stating the questions to be submitted to
the people in the referendum-plebiscite on October 16, 1976. The
Decree recites in its "whereas" clauses that the people's continued
opposition to the convening of the National Assembly evinces their
desire to have such body abolished and replaced thru a constitutional
amendment, providing for a legislative body, which will be submitted
directly to the people in the referendum-plebiscite of October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you
approve the following amendments to the Constitution? For the
purpose of the second question, the referendum shall have the effect
of a plebiscite within the contemplation of Section 2 of Article XVI of the
Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an
interim Batasang Pambansa. Members of the interim Batasang
Pambansa which shall not be more than 120, unless otherwise
provided by law, shall include the incumbent President of the
Philippines, representatives elected from the different regions of the
nation, those who shall not be less than eighteen years of age elected
by their respective sectors, and those chosen by the incumbent
President from the members of the Cabinet. Regional representatives
shall be apportioned among the regions in accordance with the number
of their respective inhabitants and on the basis of a uniform and
progressive ratio while the sectors shall be determined by law. The
number of representatives from each region or sector and the, manner
of their election shall be prescribed and regulated by law.
177
2. The interim Batasang Pambansa shall have the same
powers and its members shall have the same functions,
responsibilities, rights, privileges, and disqualifications as the interim
National Assembly and the regular National Assembly and the
members thereof. However, it shall not exercise the power provided in
Article VIII, Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30
days from the election and selection of the members, convene the
interim Batasang Pambansa and preside over its sessions until the
Speaker shall have been elected. The incumbent President of the
Philippines shall be the Prime Minister and he shall continue to
exercise all his powers even after the interim Batasang Pambansa is
organized and ready to discharge its functions and likewise he shall
continue to exercise his powers and prerogatives under the nineteen
hundred and thirty five. Constitution and the powers vested in the
President and the Prime Minister under this Constitution.
4. The President (Prime Minister) and his Cabinet shall
exercise all the powers and functions, and discharge the
responsibilities of the regular President (Prime Minister) and his
Cabinet, and shall be subject only to such disqualifications as the
President (Prime Minister) may prescribe. The President (Prime
Minister) if he so desires may appoint a Deputy Prime Minister or as
many Deputy Prime Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise
legislative powers until martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister),
there exists a grave emergency or a threat or imminence thereof, or
whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action, he may, in order
to meet the exigency, issue the necessary decrees, orders or letters of
instructions, which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently
constituted but their functions, powers, and composition may be altered
by law.
Referenda conducted thru the barangays and under the Supervision of
the Commission on Elections may be called at any time the
government deems it necessary to ascertain the will of the people
regarding any important matter whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any of
these amendments shall continue in full force and effect.
9. These amendments shall take effect after the incumbent
President shall have proclaimed that they have been ratified by I
majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive
supervision and control of the October 1976 National Referendum-
Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V.
SANIDAD, father and son, commenced L-44640 for Prohibition with
Preliminary Injunction seeking to enjoin the Commission on Elections
from holding and conducting the Referendum Plebiscite on October 16;
to declare without force and effect Presidential Decree Nos. 991 and
1033, insofar as they propose amendments to the Constitution, as well
as Presidential Decree No. 1031, insofar as it directs the Commission
on Elections to supervise, control, hold, and conduct the Referendum-
Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there
is no grant to the incumbent President to exercise the constituent
power to propose amendments to the new Constitution. As a
consequence, the Referendum-Plebiscite on October 16 has no
constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for
respondent Commission on Elections, The Solicitor General principally
maintains that petitioners have no standing to sue; the issue raised is
political in nature, beyond judicial cognizance of this Court; at this state
of the transition period, only the incumbent President has the authority
to exercise constituent power; the referendum-plebiscite is a step
towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary
Injunction, docketed as L-44684, was instituted by VICENTE M.
GUZMAN, a delegate to the 1971 Constitutional Convention, asserting
that the power to propose amendments to, or revision of the
Constitution during the transition period is expressly conferred on the
interim National Assembly under Section 16, Article XVII of the
Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed
on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and
ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the
implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers
under Martial Law, the incumbent President cannot act as a constituent
assembly to propose amendments to the Constitution; a referendum-
plebiscite is untenable under the Constitutions of 1935 and 1973; the
submission of the proposed amendments in such a short period of time
for deliberation renders the plebiscite a nullity; to lift Martial Law, the
President need not consult the people via referendum; and allowing
15-.year olds to vote would amount to an amendment of the
Constitution, which confines the right of suffrage to those citizens of the
Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I Indeed, the precedents evolved by the Court or, prior constitutional
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-
44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi
to challenge the constitutional premise of Presidential Decree Nos.
991, 1031, and 1033. It is now an ancient rule that the valid source of a
stature Presidential Decrees are of such nature-may be contested by
one who will sustain a direct injuries as a in result of its enforcement.
At the instance of taxpayers, laws providing for the disbursement of
public funds may be enjoined, upon the theory that the expenditure of
public funds by an officer of the State for the purpose of executing an
unconstitutional act constitutes a misapplication of such funds. 4 The
breadth of Presidential Decree No. 991 carries all appropriation of Five
Million Pesos for the effective implementation of its purposes. 5
Presidential Decree No. 1031 appropriates the sum of Eight Million
Pesos to carry out its provisions. 6 The interest of the aforenamed
petitioners as taxpayers in the lawful expenditure of these amounts of
public money sufficiently clothes them with that personality to litigate
the validity of the Decrees appropriating said funds. Moreover, as
regards taxpayer's suits, this Court enjoys that open discretion to
entertain the same or not. 7 For the present case, We deem it sound to
exercise that discretion affirmatively so that the authority upon which
the disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as
a pure political one, lying outside the domain of judicial review. We
disagree. The amending process both as to proposal and ratification,
raises a judicial question. 8 This is especially true in cases where the
power of the Presidency to initiate the of normally exercised by the
legislature, is seriously doubted. Under the terms of the 1973
Constitution, the power to propose amendments o the constitution
resides in the interim National Assembly in the period of transition
(See. 15, Transitory provisions). After that period, and the regular
National Assembly in its active session, the power to propose
amendments becomes ipso facto the prerogative of the regular
National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973
constitution). The normal course has not been followed. Rather than
calling the National Assembly to constitute itself into a constituent
assembly the incumbent President undertook the proposal of
amendments and submitted the proposed amendments thru
Presidential Decree 1033 to the people in a Referendum-Plebiscite on
October 16. Unavoidably, the regularity regularity of the procedure for
amendments, written in lambent words in the very Constitution sought
to be amended, raises a contestable issue. The implementing
Presidential Decree Nos. 991, 1031, and 1033, which commonly
purport to have the force and effect of legislation are assailed as
invalid, thus the issue of the validity of said Decrees is plainly a
justiciable one, within the competence of this Court to pass upon.
Section 2 (2), Article X of the new Constitution provides: "All cases
involving the constitutionality of a treaty, executive agreement, or law
may shall be heard and decided by the Supreme Court en banc and no
treaty, executive agreement, or law may be declared unconstitutional
without the concurrence of at least ten Members. ..." The Supreme
Court has the last word in the construction not only of treaties and
statutes, but also of the Constitution itself The amending, like all other
powers organized in the Constitution, is in form a delegated and hence
a limited power, so that the Supreme Court is vested with that
authorities to determine whether that power has been discharged
within its limits.
Political questions are neatly associated with the wisdom, of the
legality of a particular act. Where the vortex of the controversy refers to
the legality or validity of the contested act, that matter is definitely
justiciable or non-political. What is in the heels of the Court is not the
wisdom of the act of the incumbent President in proposing
amendments to the Constitution, but his constitutional authority to
perform such act or to assume the power of a constituent assembly.
Whether the amending process confers on the President that power to
propose amendments is therefore a downright justiciable question.
Should the contrary be found, the actuation of the President would
merely be a brutum fulmen. If the Constitution provides how it may be
amended, the judiciary as the interpreter of that Constitution, can
declare whether the procedure followed or the authority assumed was
valid or not.10
178
We cannot accept the view of the Solicitor General, in pursuing his
theory of non-justiciability, that the question of the President's authority
to propose amendments and the regularity of the procedure adopted
for submission of the proposal to the people ultimately lie in the
judgment of the A clear Descartes fallacy of vicious circle. Is it not that
the people themselves, by their sovereign act, provided for the
authority and procedure for the amending process when they ratified
the present Constitution in 1973? Whether, therefore, the constitutional
provision has been followed or not is the proper subject of inquiry, not
by the people themselves of course who exercise no power of judicial
but by the Supreme Court in whom the people themselves vested that
power, a power which includes the competence to determine whether
the constitutional norms for amendments have been observed or not.
And, this inquiry must be done a prior not a posterior i.e., before the
submission to and ratification by the people.
cases underline the preference of the Court's majority to treat such
issue of Presidential role in the amending process as one of non-
political impression. In the Plebiscite Cases, 11 the contention of the
Solicitor General that the issue on the legality of Presidential Decree
No. 73 "submitting to the Pilipino people (on January 15, 1973) for
ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention and
appropriating fund s therefore "is a political one, was rejected and the
Court unanimously considered the issue as justiciable in nature.
Subsequently in the Ratification Cases12 involving the issue of
whether or not the validity of Presidential Proclamation No. 1102.
announcing the Ratification by the Filipino people of the constitution
proposed by the 1971 Constitutional Convention," partakes of the
nature of a political question, the affirmative stand of' the Solicitor
General was dismissed, the Court ruled that the question raised is
justiciable. Chief Justice Concepcion, expressing the majority view,
said, Thus, in the aforementioned plebiscite cases, We rejected the
theory of the respondents therein that the question whether
Presidential Decree No. 73 calling a plebiscite to be held on January
15, 1973, for the ratification or rejection of the proposed new
Constitution, was valid or not, was not a proper subject of judicial
inquiry because, they claimed, it partook of a political nature, and We
unanimously declared that the issue was a justiciable one. With
Identical unanimity. We overruled the respondent's contention in the
1971 habeas corpus cases, questioning Our authority to determine the
constitutional sufficiency of the factual bases of the Presidential
proclamation suspending the privilege of the writ of habeas corpus on
August 21, 1971, despite the opposite view taken by this Court in
Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it
adhered to the former case, which view We, accordingly, abandoned
and refused to apply. For the same reason, We did not apply and
expressly modified, in Gonzales vs. Commission on Elections, the
political-question theory adopted in Mabanag vs. Lopez Vito." 13 The
return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the
Solicitor General, was decisively refused by the Court. Chief Justice
Concepcion continued: "The reasons adduced in support thereof are,
however, substantially the same as those given in support on the
political question theory advanced in said habeas corpus and plebiscite
cases, which were carefully considered by this Court and found by it to
be legally unsound and constitutionally untenable. As a consequence.
Our decisions in the aforementioned habeas corpus cases partakes of
the nature and effect of a stare decisis which gained added weight by
its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution
may be proposed by the National Assembly upon a vote of three-
fourths of all its Members, or by a constitutional convention. (2) The
National Assembly may, by a vote of two-thirds of all its Members, call
a constitutional convention or, by a majority vote of all its Members,
submit the question of calling such a convention to the electorate in an
election.
SECTION 2. Any amendment to, or revision of, this Constitution
shall be valid when ratified by a majority of the votes cast in a
plebiscite which shall be held not later than three months after the
approval of such amendment or revision.
In the present period of transition, the interim National Assembly
instituted in the Transitory Provisions is conferred with that amending
power. Section 15 of the Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon special call
by the interim Prime Minister, may, by a majority vote of all its
Members, propose amendments to this Constitution. Such
amendments shall take effect when ratified in accordance with Article
Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life
of the nation, i.e., period of normalcy and period of transition. In times
of normally, the amending process may be initiated by the proposals of
the (1) regular National Assembly upon a vote of three-fourths of all its
members; or (2) by a Constitutional Convention called by a vote of two-
thirds of all the Members of the National Assembly. However the
calling of a Constitutional Convention may be submitted to the
electorate in an election voted upon by a majority vote of all the
members of the National Assembly. In times of transition, amendments
may be proposed by a majority vote of all the Members of the National
Assembly upon special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that
the incumbent President is vested with that prerogative of discretion as
to when he shall initially convene the interim National Assembly.
Speaking for the majority opinion in that case, Justice Makasiar said:
"The Constitutional Convention intended to leave to the President the
determination of the time when he shall initially convene the interim
National Assembly, consistent with the prevailing conditions of peace
and order in the country." Concurring, Justice Fernandez, himself a
member of that Constitutional Convention, revealed: "(W)hen the
Delegates to the Constitutional Convention voted on the Transitory
Provisions, they were aware of the fact that under the same, the
incumbent President was given the discretion as to when he could
convene the interim National Assembly; it was so stated plainly by the
sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be
convened 'immediately', made by Delegate Pimentel (V) was rejected.
The President's decision to defer the convening of the interim National
Assembly soon found support from the people themselves. In the
plebiscite of January 10-15, 1973, at which the ratification of the 1973
Constitution was submitted, the people voted against the convening of
the interim National Assembly. In the referendum of July 24, 1973, the
Citizens Assemblies ("bagangays") reiterated their sovereign will to
withhold the convening of the interim National Assembly. Again, in the
referendum of February 27, 1975, the proposed question of whether
the interim National Assembly shall be initially convened was
eliminated, because some of the members of Congress and delegates
of the Constitutional Convention, who were deemed automatically
members of the I interim National Assembly, were against its inclusion
since in that referendum of January, 1973, the people had already
resolved against it.
3. In sensu strictiore, when the legislative arm of the state
undertakes the proposals of amendment to a Constitution, that body is
not in the usual function of lawmaking. lt is not legislating when
engaged in the amending process.16 Rather, it is exercising a peculiar
power bestowed upon it by the fundamental charter itself. In the
Philippines, that power is provided for in Article XVI of the 1973
Constitution (for the regular National Assembly) or in Section 15 of the
Transitory Provisions (for the National Assembly). While ordinarily it is
the business of the legislating body to legislate for the nation by virtue
of constitutional conferment amending of the Constitution is not
legislative in character. In political science a distinction is made
between constitutional content of an organic character and that of a
legislative character'. The distinction, however, is one of policy, not of
law.17 Such being the case, approval of the President of any proposed
amendment is a misnomer 18 The prerogative of the President to
approve or disapprove applies only to the ordinary cases of legislation.
The President has nothing to do with proposition or adoption of
amendments to the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government
the Philippines is a crisis government today are more or less
concentrated in the President. 20 According to Rossiter, "(t)he
concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in the
doctrine of the separation of powers. In most free states it has
generally been regarded as imperative that the total power of the
government be parceled out among three mutually independent
branches executive, legislature, and judiciary. It is believed to be
destructive of constitutionalism if any one branch should exercise any
two or more types of power, and certainly a total disregard of the
separation of powers is, as Madison wrote in the Federalist, No. 47,
'the very definition of tyranny.' In normal times the separation of powers
forms a distinct obstruction to arbitrary governmental action. By this
same token, in abnormal times it may form an insurmountable barrier
to a decisive emergency action in behalf of the state and its
independent existence. There are moments in the life of any
government when all powers must work together in unanimity of
purpose and action, even if this means the temporary union of
executive, legislative, and judicial power in the hands of one man. The
more complete the separation of powers in a constitutional system, the
more difficult and yet the more necessary will be their fusion in time of
crisis. This is evident in a comparison of the crisis potentialities of the
cabinet and presidential systems of government. In the former the all-
179
important harmony of legislature and executive is taken for granted; in
the latter it is neither guaranteed nor to be to confidently expected. As
a result, cabinet is more easily established and more trustworthy than
presidential dictatorship. The power of the state in crisis must not only
be concentrated and expanded; it must also be freed from the normal
system of constitutional and legal limitations. 21 John Locke, on the
other hand, claims for the executive in its own right a broad discretion
capable even of setting aside the ordinary laws in the meeting of
special exigencies for which the legislative power had not provided. 22
The rationale behind such broad emergency powers of the Executive is
the release of the government from "the paralysis of constitutional
restrains" so that the crisis may be ended and normal times restored.
2. The presidential exercise of legislative powers in time of
martial law is now a conceded valid at. That sun clear authority of the
President is saddled on Section 3 (pars. 1 and 2) of the Transitory
Provisions, thus:23
The incumbent President of the Philippines shall initially convene the
interim National Assembly and shall preside over its sessions until the
interim Speaker shall have been elected. He shall continue to exercise
his powers and prerogatives under the nineteen hundred and thirty-five
Constitution and the powers vested in the President and the Prime
Minister under this Constitution until the calls upon the interim National
Assembly to elect the interim President and the interim Prime Minister,
who shall then exercise their respective powers vested by this
Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of
the land, and shall remain valid, binding, and effective even after lifting
of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders,
decrees, instructions, or other acts of the incumbent President, or
unless expressly and explicitly modified or repealed by the regular
National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional
Convention delegate, "that the Constitutional Convention, while giving
to the President the discretion when to call the interim National
Assembly to session, and knowing that it may not be convened soon,
would create a vacuum in the exercise of legislative powers.
Otherwise, with no one to exercise the lawmaking powers, there would
be paralyzation of the entire governmental machinery." 24
Paraphrasing Rossiter, this is an extremely important factor in any
constitutional dictatorship which extends over a period of time. The
separation of executive and legislature ordained in the Constitution
presents a distinct obstruction to efficient crisis government. The
steady increase in executive power is not too much a cause for as the
steady increase in the magnitude and complexity of the problems the
President has been called upon by the Filipino people to solve in their
behalf, which involve rebellion, subversion, secession, recession,
inflation, and economic crisis-a crisis greater than war. In short, while
conventional constitutional law just confines the President's power as
Commander-in-Chief to the direction of the operation of the national
forces, yet the facts of our political, social, and economic disturbances
had convincingly shown that in meeting the same, indefinite power
should be attributed to tile President to take emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is
constitutionally consigned to the interim National Assembly during the
transition period. However, the initial convening of that Assembly is a
matter fully addressed to the judgment of the incumbent President.
And, in the exercise of that judgment, the President opted to defer
convening of that body in utter recognition of the people's preference.
Likewise, in the period of transition, the power to propose amendments
to the Constitution lies in the interim National Assembly upon special
call by the President (See. 15 of the Transitory Provisions). Again,
harking to the dictates of the sovereign will, the President decided not
to call the interim National Assembly. Would it then be within the
bounds of the Constitution and of law for the President to assume that
constituent power of the interim Assembly vis-a-vis his assumption of
that body's legislative functions? The answer is yes. If the President
has been legitimately discharging the legislative functions of the interim
Assembly, there is no reason why he cannot validly discharge the
function of that Assembly to propose amendments to the Constitution,
which is but adjunct, although peculiar, to its gross legislative power.
This, of course, is not to say that the President has converted his office
into a constituent assembly of that nature normally constituted by the
legislature. Rather, with the interim National Assembly not convened
and only the Presidency and the Supreme Court in operation, the
urges of absolute necessity render it imperative upon the President to
act as agent for and in behalf of the people to propose amendments to
the Constitution. Parenthetically, by its very constitution, the Supreme
Court possesses no capacity to propose amendments without
constitutional infractions. For the President to shy away from that
actuality and decline to undertake the amending process would leave
the governmental machineries at a stalemate or create in the powers of
the State a destructive vacuum, thereby impeding the objective of a
crisis government "to end the crisis and restore normal times." In these
parlous times, that Presidential initiative to reduce into concrete forms
the constant voices of the people reigns supreme. After all, constituent
assemblies or constitutional conventions, like the President now, are
mere agents of the people .26
2. The President's action is not a unilateral move. As early as
the referendums of January 1973 and February 1975, the people had
already rejected the calling of the interim National Assembly. The
Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the
Pambansang Katipunan ng mga Barangay, and the Pambansang
Katipunan ng mga Barangay, representing 42,000 barangays, about
the same number of Kabataang Barangay organizations, Sanggunians
in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities
had informed the President that the prevailing sentiment of the people
is for the abolition of the interim National Assembly. Other issues
concerned the lifting of martial law and amendments to the Constitution
.27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its
replacement, the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum to be
held on October 16 .28 The Batasang Bayan (legislative council)
created under Presidential Decree 995 of September 10, 1976,
composed of 19 cabinet members, 9 officials with cabinet rank, 91
members of the Lupong Tagapagpaganap (executive committee) of the
Katipunan ng mga Sangguniang Bayan voted in session to submit
directly to the people in a plebiscite on October 16, the previously
quoted proposed amendments to the Constitution, including the issue
of martial law .29 Similarly, the "barangays" and the "sanggunians"
endorsed to the President the submission of the proposed
amendments to the people on October 16. All the foregoing led the
President to initiate the proposal of amendments to the Constitution
and the subsequent issuance of Presidential Decree No, 1033 on
September 22, 1976 submitting the questions (proposed amendments)
to the people in the National Referendum-Plebiscite on October 16.
V plebiscite on October 16 recognizes all the embracing freedoms of
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a
unitary state is easily seen. In the Philippines, a republican and unitary
state, sovereignty "resides in the people and all government authority
emanates from them .30 In its fourth meaning, Savigny would treat
people as "that particular organized assembly of individuals in which,
according to the Constitution, the highest power exists." 31 This is the
concept of popular sovereignty. It means that the constitutional
legislator, namely the people, is sovereign 32 In consequence, the
people may thus write into the Constitution their convictions on any
subject they choose in the absence of express constitutional
prohibition. 33 This is because, as Holmes said, the Constitution "is an
experiment, as all life is all experiment."34 "The necessities of orderly
government," wrote Rottschaefer, "do not require that one generation
should be permitted to permanently fetter all future generations." A
constitution is based, therefore, upon a self-limiting decision of the
people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to
the people to exercise their sovereign power as constitutional
legislator. The proposed amendments, as earlier discussed, proceed
not from the thinking of a single man. Rather, they are the collated
thoughts of the sovereign will reduced only into enabling forms by the
authority who can presently exercise the powers of the government. In
equal vein, the submission of those proposed amendments and the
question of martial law in a referendum-plebiscite expresses but the
option of the people themselves implemented only by the authority of
the President. Indeed, it may well be said that the amending process is
a sovereign act, although the authority to initiate the same and the
procedure to be followed reside somehow in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The
question - (1) Do you want martial law to be continued? - is a
referendum question, wherein the 15-year olds may participate. This
was prompted by the desire of the Government to reach the larger mas
of the people so that their true pulse may be felt to guide the President
in pursuing his program for a New Order. For the succeeding question
on the proposed amendments, only those of voting age of 18 years
may participate. This is the plebiscite aspect, as contemplated in
Section 2, Article XVI of the new Constitution. 36 On this second
question, it would only be the votes of those 18 years old and above
which will have valid bearing on the results. The fact that the voting
180
populace are simultaneously asked to answer the referendum question
and the plebiscite question does not infirm the referendum-plebiscite.
There is nothing objectionable in consulting the people on a given
issue, which is of current one and submitting to them for ratification of
proposed constitutional amendments. The fear of commingled votes
(15-year olds and 18-year olds above) is readily dispelled by the
provision of two ballot boxes for every barangay center, one containing
the ballots of voters fifteen years of age and under eighteen, and
another containing the ballots of voters eighteen years of age and
above. 37 The ballots in the ballot box for voters fifteen years of age
and under eighteen shall be counted ahead of the ballots of voters
eighteen years and above contained in another ballot box. And, the
results of the referendum-plebiscite shall be separately prepared for
the age groupings, i.e., ballots contained in each of the two boxes.38
2. It is apt to distinguish here between a "referendum" and a
"plebiscite." A "referendum" is merely consultative in character. It is
simply a means of assessing public reaction to the given issues
submitted to the people foe their consideration, the calling of which is
derived from or within the totality of the executive power of the
President.39 It is participated in by all citizens from the age of fifteen,
regardless of whether or not they are illiterates, feeble-minded, or ex-
convicts .40 A "plebiscite," on the other hand, involves the constituent
act of those "citizens of the Philippines not otherwise disqualified by
law, who are eighteen years of age or over, and who shall have
resided in the Philippines for at least one year and in the place wherein
they propose to vote for at least six months preceding the election
Literacy, property or any other substantive requirement is not imposed.
It is generally associated with the amending process of the
Constitution, more particularly, the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the
regime of martial law stultifies in main the freedom to dissent. That
speaks of a bygone fear. The martial law regime which, in the
observation of Justice Fernando, 41 is impressed with a mild character
recorded no State imposition for a muffled voice. To be sure, there are
restraints of the individual liberty, but on certain grounds no total
suppression of that liberty is aimed at. The for the referendum-
expression and assembly The President himself had announced that
he would not countenance any suppression of dissenting views on the
issues, as he is not interested in winning a "yes" or "no" vote, but on
the genuine sentiment of the people on the issues at hand. 42 Thus,
the dissenters soon found their way to the public forums, voicing out
loud and clear their adverse views on the proposed amendments and
even (in the valid ratification of the 1973 Constitution, which is already
a settled matter.43 Even government employees have been held by
the Civil Service Commission free to participate in public discussion
and even campaign for their stand on the referendum-plebiscite
issues.44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3
weeks is not too short for free debates or discussions on the
referendum-plebiscite issues. The questions are not new. They are the
issues of the day. The people have been living with them since the
proclamation of martial law four years ago. The referendums of 1973
and 1975 carried the same issue of martial law. That notwithstanding,
the contested brief period for discussion is not without counterparts in
previous plebiscites for constitutional amendments. Justice Makasiar,
in the Referendum Case, recalls: "Under the old Society, 15 days were
allotted for the publication in three consecutive issues of the Official
Gazette of the women's suffrage amendment to the Constitution before
the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The
constitutional amendment to append as ordinance the complicated
Tydings-Kocialskowski was published in only three consecutive issues
of the Official Gazette for 10 days prior to the scheduled plebiscite
(Com. Act 492). For the 1940 Constitutional amendments providing for
the bicameral Congress, the reelection of the President and Vice
President, and the creation of the Commission on Elections, 20 days of
publication in three consecutive issues of the Official Gazette was fixed
(Com Act No. 517). And the Parity Amendment, an involved
constitutional amendment affecting the economy as well as the
independence of the Republic was publicized in three consecutive
issues of the Official Gazette for 20 days prior to the plebiscite (Rep.
Act No. 73)."45
2. It is worthy to note that Article XVI of the Constitution makes
no provision as to the specific date when the plebiscite shall be held,
but simply states that it "shall be held not later than three months after
the approval of such amendment or revision." In Coleman v. Miller, 46
the United States Supreme court held that this matter of submission
involves "an appraisal of a great variety of relevant conditions, political,
social and economic," which "are essentially political and not
justiciable." The constituent body or in the instant cases, the President,
may fix the time within which the people may act. This is because
proposal and ratification are not treated as unrelated acts, but as
succeeding steps in a single endeavor, the natural inference being that
they are not to be widely separated in time; second, it is only when
there is deemed to be a necessity therefor that amendments are to be
proposed, the reasonable implication being that when proposed, they
are to be considered and disposed of presently, and third, ratification is
but the expression of the approbation of the people, hence, it must be
done contemporaneously. 47 In the words of Jameson, "(a)n alteration
of the Constitution proposed today has relation to the sentiment and
the felt needs of today, and that, if not ratified early while that
sentiment may fairly be supposed to exist. it ought to be regarded as
waived, and not again to be voted upon, unless a second time
proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees
Nos. 991, 1031 and 1033 political or justiciable?
2. During the present stage of the transition period, and under,
the environmental circumstances now obtaining, does the President
possess power to propose amendments to the Constitution as well as
set up the required machinery and prescribe the procedure for the
ratification of his proposals by the people?
3. Is the submission to the people of the proposed
amendments within the time frame allowed therefor a sufficient and
proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate
Justices Enrique M. Fernando, Claudio Teehankee, Antonio P.
Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and
Ruperto G. Martin are of the view that the question posed is justiciable,
while Associate Justices Felix V. Makasiar, Felix Q. Antonio and
Ramon C. Aquino hold the view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices
Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted
in the affirmative, while Associate Justices Teehankee and Munoz
Palma voted in the negative. Associate Justice Fernando, conformably
to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA
183), specifically dissents from the proposition that there is
concentration of powers in the Executive during periods of crisis, thus
raising serious doubts as to the power of the President to propose
amendments.
Upon the third issue, Chief Justice Castro and Associate Justices
Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the view
that there is a sufficient and proper submission of the proposed
amendments for ratification by the people. Associate Justices Barredo
and Makasiar expressed the hope, however that the period of time may
be extended. Associate Justices Fernando, Makasiar and Antonio are
of the view that the question is political and therefore beyond the
competence and cognizance of this Court, Associate Justice Fernando
adheres to his concurrence in the opinion of Chief Justice Concepcion
in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices
Teehankee and MUNOZ Palma hold that prescinding from the
President's lack of authority to exercise the constituent power to
propose the amendments, etc., as above stated, there is no fair and
proper submission with sufficient information and time to assure
intelligent consent or rejection under the standards set by this Court in
the controlling cases of Gonzales, supra, and Tolentino vs. COMELEC
(41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the three
petitions at bar. For reasons as expressed in his separate opinion,
Associate Justice Fernando concurs in the result. Associate Justices
Teehankee and Munoz Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are
hereby dismissed. This decision is immediately executory.
SO ORDERED.
Aquino, J, in the result.
Separate Opinions
CASTRO, C.J.:, concurring:
From the challenge as formulated in the three petitions at bar and the
grounds advanced be the Solicitor General in opposition thereto, as
well as the arguments adduced by the counsels of the parties at the
hearing had on October 7 and 8, 1976, three vital issues readily project
themselves as the centers of controversy, namely:
(1) Is the question of the constitutionality of Presidential Decrees Nos.
991, 1031 and 1033 political or justiciable?
(2) During the present stage of the transition period, and under the
environmental circumstances now obtaining, does the President
181
possess power to propose amendments to the Constitution as well as
set up the required machineries and prescribe the procedure for the
ratification of his proposals by the people?
(3) Is the submission to the people of the proposed amendments within
the time frame allowed therefor a sufficient and proper, submission"
I
First Issue
The threshold question is not at all one of first impression Specifically
on the matter of proposals to amend the Constitution, this Court, in
Mabanag vs. Lopez Vito (78 Phil. 1), inceptively announced the dictum
that-
Proposal to amend the Constitution is a highly political function
performed by the Congress in its sovereign legislative capacity and
committed to its charges by the Constitution itself. The exercise of this
power is even independent of any intervention by the Chief Executive.
If on grounds of expediency scrupulous attention of the judiciary be
needed to safeguard public interest, there is less reason for judicial
inquiry into the validity of a proposal than into that of a ratification.
In time, however, the validity of the said pronouncement was eroded.
In the assessment of the Court itself-
The force of this precedent has been weakened, however, by Suanes
vs. Chief Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco
(L-2581, March 4 and 14, 1949), Tanada vs. Cuenco (L-10520,
February 28, 1957), and Macias vs. Commission on Elections (L-
18684, September 14, 1961).
xxx xxx xxx
In short, the issue whether or not a Resolution of Congress-acting as a
constituent assembly-violates the Constitution is essentially justiciable,
not political, and, hence, subject to judicial review, and, to the extent
this view may be inconsistent with the stand taken in Mabanag vs.
Lopez Vito the latter should be deemed modified accordingly. The
Members of the Court are unanimous on this point." (Gonzales vs.
Commission on Elections, et al, L-28196, November 9, 1967, 21 SCRA
774, 786-787).
The abandonment of the Mabanag vs. Lopez Vito doctrine appears to
have been completed when, in Javellana vs. Secretary, et al. (L-36142,
March 3l, 1973, 50 SCRA 30), six members of the Court concurred in
the view that the question of whether the 1973 Constitution was ratified
in accordance with the provisions of Article XV (Amendments) of the
1935 Constitution is inherently and essentially justiciable.
As elucidated therein, with extensive quotations from Tanada vs.
Cuenco (103 Phil. 1051)-
... the term 'political question' connotes, in legal parlance, what it
means in ordinarily parlance, namely, a question of policy in matters
concerning the government of a State, as a body politic. In other
words, in the language of Corpus Juris Secundum (supra), it refers to
'those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the government.' It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.'
Accordingly, when the grant of power is qualified, conditional or subject
to limitations, the issue on whether or not the prescribed qualifications
or conditions have been met, or the limitations respected, is justiciable
or non-political, the crux of the problem being one of legality or validity
of the contested act, not its wisdom. Otherwise, said qualifications,
conditions or limitations - particularly those prescribed or imposed by
the Constitution - would be set at naught." (Javellana vs. Executive
Secretary, supra).
So it is in the situation here presented. The basic issue is the
constitutional validity of the presidential acts of proposing amendments
to the Constitution and of calling a referendum-plebiscite for the
ratification of the proposals made. Evidently, the question does not
concern itself with the wisdom of the exercise of the authority claimed
or of the specific amendments proposed. Instead the inquiry vel non is
focused solely on the existence of the said power in the President - a
question purely of legality determinable thru interpretation and
construction of the letter and spirit of the Constitution by the Court as
the final arbiter in the delineation of constitutional boundaries and the
allocation of constitutional powers.
For the Court to shun cognizance of the challenge herein presented,
especially in these parlous years, would be to abdicate its
constitutional powers, shirk its constitutional responsibility, and deny
the people their ultimate recourse for judicial determination.
I have thus no hesitancy in concluding that the question here
presented is well within the periphery of judicial inquiry.
II
Second Issue
The main question stands on a different footing; it appears
unprecedented both here and elsewhere. Its solution, I believe, can be
found and unraveled only by a critical assessment of the existing legal
order in the light of the prevailing political and factual milieu.
To be sure, there is an impressive array of consistent jurisprudence on
the proposition that, normally or under normal conditions, a
Constitution may be amended only in accord with the procedure set
forth therein. Hence, if there be any such prescription for the
amendatory process as invariable there is because one of the essential
parts of a Constitution is the so-called "constitution of sovereignty"
which comprises the provision or provisions on the modes in
accordance with which formal changes in the fundamental law may be
effected the same would ordinarily be the controlling criterion for the
validity of the amendments sought.
Unfortunately, however, during the present transition period of our
political development, no express provision is extant in the Constitution
regarding the agency or agent by whom and the procedure by which
amendments thereto may be proposed and ratified fact overlooked by
those who challenge the validity of the presidential acts in the
premises. This is so because there are at least two distinctly in the
transition from the old system of government under the 1935
Constitution to the new one established by the 1973 Constitution.
The first stage comprises the period from the effectivity of the
Constitution on January 17, 1973 to the time the National Assembly is
convened by the incumbent President and the interim President and
the interim Prime Minister are chosen Article XVII, Sections 1 and 3[1].
The existence of this stage as an obvious fact of the nation's political
life was recognized by the Court in Aquino vs. Commission on
Elections, et al. (L-40004, January 31, 1975, 62 SCRA 275), when it
rejected the claim that, under the 1973 Constitution, the President was
in duty bound to convene the interim National Assembly soon after the
Constitution took effect.
The second stage embraces the period from the date the interim
National Assembly is convened to the date the Government described
in Articles VII to IX of the Constitution is inaugurated, following the
election of the members of the regular National Assembly (Article XVII,
Section 1) and the election of the regular President and Prime
Minister,. This is as it should be because it is recognized that the
President has been accorded the discretion to determine when he shall
initially convene the interim National Assembly, and his decision to
defer the convocation thereof has found overwhelming support by the
sovereign people in two previous referenda, therein giving reality to an
interregnum between the effectivity of the Constitution and the initial
convocation of the interim National Assembly, which interregnum, as
aforesaid, constitutes the first stage in the transition period.
Against this factual backdrop, it is readily discernible that neither of the
two sets of provisions embodied in the Constitution on the amendatory
process applied during the said first stage. Thus, Section 15, Article
XVII (Transitory Provisions) provides-
"Sec. 15. The interim National Assembly, upon special call by the
interim Prime Minister, may, by a majority vote of all its Members,
propose amendments to this Constitution. Such amendments shall
take effect when ratified in accordance with Article Sixteen hereof."
Patently, the reference to the "interim National Assembly" and the
"interim Prime Minister" limits the application thereof to the second
stage of the transition period, i.e.,., after the interim? National
Assembly shall have been convened and the interim Prime Minister
shall have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to
wit-
SECTION 1. (1) Any amendment to, or revision of, this
Constitution may be proposed by the National Assembly upon a vote of
three-fourths of all its Members, or by a constitutional convention.
(2) The National Assembly may, by a vote of two-thirds of all its
Members, call a constitutional convention or, by a majority vote of all its
Members, submit the question of ceiling such a convention to the
electorate in an election.
SEC. 2. Any amendment to, or revision of, this Constitution shall be
valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not later than three months after the approval of such
amendment or revision.
unequivocally contemplate amendments after the regular Government
shall have become fully operative, referring as they do to the National
Assembly which will come into being only at that time.
In the face of this constitutional hiatus, we are confronted with the
dilemma whether amendments to the Constitution may be effected
182
during the aforesaid first stage and, if in the affirmative, by whom and
in what manner such amendments may be proposed and ratified.
Susceptibility to change is one of the hallmarks of an Ideal
Constitution. Not being a mere declaration of the traditions of a nation
but more the embodiment of a people's hopes and aspirations, its
strictures are not unalterable. They are, instead, dynamic precepts
intended to keep in stride with and attuned to the living social organism
they seek to fashion and govern. If it is conceded that "the political or
philosophical aphorism of one generation is doubted by the next and
entirely discarded by the third," then a Constitution must be able to
adjust to the changing needs and demands of society so that the latter
may survive, progress and endure. On these verities, there can be no
debate.
During the first stage of the transition period in which the Government
is at present - which is understandably the most critical - the need for
change may be most pressing and imperative, and to disavow the
existence of the right to amend the Constitution would be sheer
political heresy. Such view would deny the people a mechanism for
effecting peaceful change, and belie the organic conception of the
Constitution by depriving it of its means of growth. Such a result
obviously could not have been intended by the framers of the
fundamental law.
It seems, however, that the happenstance that the first period would
come to pass before the convocation of the interim National Assembly
was not anticipated, hence, the omission of an express mandate to
govern the said situation in so far as amendments are concerned. But
such omission through inadvertence should not, because it cannot,
negate the sovereign power of the people to amend the fundamental
charter that governs their lives and their future and perhaps even the
very survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions on the
amendatory process that the intent was, instead, to provide a simpler
and more expeditious mode of amending the Constitution during the
transition period. For, while under Article XVI thereof, proposals for
amendment may be made directly by the regular National Assembly by
a vote of at least three-fourths of all its members, under Section 15 of
Article XVII, a bare majority vote of all the members of the National
Assembly would suffice for the purpose. The relaxation and the
disparity in the vote requirement are revealing. The can only signify a
recognition of the need to facilitate the adoption of amendments during
the second stage of the transition period so that the interim National
Assembly will be able, in a manner of speaking, to iron out the kinks in
the new Constitution, remove imperfections therein, and provide for
changed or changing circumstances before the establishment of the
regular Government. In this contest, therefore, it is inutile speculation
to assume that the Constitution was intended to render impotent or ar
the effectuation of needful change at an even more critical period - the
first stage. With greater reason, therefore, must the right and power to
amend the Constitution during the first stage of te transition period be
upheld, albeit within its express and implied constraints.
Neither can it be successfully argued, in the same context and in the
present posture, that the Constitution may be amended during the said
first stage only by convening the interim National Assembly. That is to
say and require that he said stage must first be brought to an end
before any amendment may be proposed and ratified. Settled
jurisprudence does not square with such a proposition. As aptly noted
in Aquino vs. Commission on Elections, et al., supra, the framers of the
Constitution set no deadline for the convening of the interim National
Assembly because they could not have foreseen how long the crises
which impelled the proclamation and justify the continued state of
martial law would last. Indeed, the framers committed to the sound
judgment is not subject to judicial review, save possibly to determine
whether arbitrariness has infected such exercise; absent such a taint,
the matter is solely in the keeping of the President. To thus content that
only by convening the interim National Assembly may the Constitution
be amended at this time would effectively override the judgement
vested in the President, even in default of any he has acted arbitrarily
or gravely abuse his discretion. Furthermore, to sustain such a
contention would not only negate the mandate so resoundingly
expressed by the people in two national referenda against the
immediate convening of the interim National Assembly, but as well
deride their overwhelming approval of the manner in which the
President has exercised the legislative power to issue proclamations,
orders, decrees and instructions having the stature and force of law.
Given the constitutional stalemate or impasse spawned by these
supervening developments, the logical query that compels itself for
resolution is: By whom, then, may proposals for the amendment of the
Constitution be made and in what manner may said proposals be
ratified by the people?
It is conventional wisdom that, conceptually, the constituent power is
not to be confuse with legislative power in general because the
prerogative to propose amendments to the Constitution is not in any
sense embraced within the ambit of ordinary law-making. Hence, there
is much to recommend the proposition that, in default of an express
grant thereof, the legislature - traditionally the delegated repository
thereof - may not claim it under a general grant of legislative authority.
In the same vein, neither would it be altogether unassailable to say that
because by constitutional tradition and express allocation the
constituent power under the Constitution is locate in the law-making
agency and at this stage of the transition period the law-making
authority is firmly recognized as being lodged in the President, the said
constituent power should now logically be in the hands of te President
who may thus exercise it in place of the interim National Assembly.
Instead,, as pointed out in Gonzales vs. Commission on Elections, et
al., supra, the power to amend the Constitution or to propose
amendments thereto
... is part of the inherent powers of the people - as the repository of
sovereignty in a republican state, such as ours - t o make, and, hence,
to amend their own Fundamental Law.
As such, it is undoubtedly a power that only the sovereign people,
either directly by themselves or through their chosen delegate, can
wield. Since it has been shown that the people, inadvertently or
otherwise, have not delegated that power to inadvertently or otherwise,
have not delegated that power to any instrumentality during the current
stage of our hegira from crisis to normalcy, it follows of necessity that
the same remains with them for them to exercise in the manner they
see fit and through the agency they choose. And, even if it were
conceded that - as it is reputedly the rule in some jurisdictions - a
delegation of the constituent authority amounts to a complete
divestiture from the people of the power delegated which they may not
thereafter unilaterally reclaim from the delegate, there would be no
violence donde to such rule, assuming it to be applicable here,
inasmuch as that power, under the environmental circumstance
adverted to, has not been delegated to anyone in the first place. The
constituent power during the first stage of the transition period belongs
to and remains with the people, and accordingly may be exercised by
them - how and when - at their pleasure.
At this juncture, a flashback to the recent and contemporary political
ferment in the country proves revelatory. The people, shocked and
revolted by the "obvious immorality" of the unabashed manner by
which the delegates to the Constitutional Convention virtually legislated
themselves into office as ipso facto members of the interim National
Assembly by the mere fiat of voting for the transitory provisions of the
Constitution. and the stark reality that the unwieldy political monstrosity
that the interim Assembly portended to be would have proven to be a
veritable drain on the meager financial resources of a nation struggling
for survival, have unequivocally put their foot down, as it were, on the
convocation thereof. But this patently salutary decision of the people
proved to be double-edged. It likewise bound the political machinery of
the Government in a virtual straight-jacket and consigned the political
evolution of the nation into a state of suspended animation. Faced with
the ensuing dilemma, the people understandably agitated for a
solution. Through consultations in the barangays and sanggunian
assemblies, the instrumentalities through which the people's voice is
articulated in the unique system of participatory democracy in the
country today, the underpinnings for the hastening of the return to
constitutional normalcy quickly evolved into an overwhelming
sentiment to amend the Constitution in order to replace the discredited
interim National Assembly with what the people believe will be an
appropriate agency to eventually take over the law-making power and
thus pave the way for the early lifting of martial rule. In pursuit of this
sentiment, and to translate its constraints into concrete action, the
Pambansang Katipunan ng Barangay, the Pambansang Katipunan ng
mga Kabataang Barangay, the Lupong Tagapagpaganap of the
Katipunan ng mga Barangay, the Pambansang Katipunan ng mga
Kabataang Barangay the Lupong Tagapagpaganap of the Katipunan
ng mga Sanggunian, and finally the Batasang Bayan, to a man and as
one voice, have come forward with definitive proposals for the
amendment of the Constitution, and, choosing the President the only
political arm of the State at this time through which that decision could
be implemented and the end in view attained as their spokesman,
proposed the amendments under challenge in the cases at bar.
In the light of this milieu and its imperatives, one thing is inescapable:
the proposals now submitted to the people for their ratification in the
forthcoming referendum-plebiscite are factually not of the President;
they are directly those of the people themselves speaking thru their
authorized instrumentalities. The President merely formalized the said
proposals in Presidential Decree No. 1033. It being conceded in all
quarters that sovereignty resides in the people and it having been
demonstrated that their constituent power to amend the Constitution
has not been delegated by them to any instrumentality of the
Government during the present stage of the transition period of our
political development, the conclusion is ineluctable that their exertion of
that residuary power cannot be vulnerable to any constitutional
challenge as being ultra vires. Accordingly, without venturing to rule on
whether or not the President is vested with constituent power as it does
not appear necessary to do so in the premises the proposals here
challenged, being acts of the sovereign people no less, cannot be said
to be afflicted with unconstitutionality. A fortiori, the concomitant
authority to call a plebiscite and to appropriate funds therefor is even
less vulnerable not only because the President, in exercising said
authority has acted as a mere alter ego of the people who made the
proposals, but likewise because the said authority is legislative in
nature rather than constituent.
183
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of the
submission of the proposed amendments for ratification from the
standpoint of time. The thesis cannot be disputed that a fair submission
presupposes an adequate time lapse to enable the people to be
sufficiently enlightened on the merits or demerits of the amendments
presented for their ratification or rejection. However, circumstances
there are which unmistakably demonstrated that the is met. Even if the
proposal appear to have been formalized only upon the promulgation
of Presidential Decree No. 1033 on September 22, 1976, they are
actually the crystallization of sentiments that for so long have
preoccupied the minds of the people and their authorized
representatives, from the very lowest level of the political hierarchy.
Hence, unlike proposals emanating from a legislative body, the same
cannot but be said to have been mulled over, pondered upon, debated,
discussed and sufficiently understood by the great masses of the
nation long before they ripened into formal proposals.
Besides. it is a fact of which judicial notice may well be taken that in the
not so distant past when the 1973 Constitution was submitted to the
people for ratification, an all-out campaign, in which all the delegates of
the Constitutional Convention reportedly participated, was launched to
acquaint the people with the ramifications and working of the new
system of government sought to be inaugurated thereunder. It may
thus well be assumed that the people in general have since acquired,
in the least, a working knowledge of the entirety of the Constitution.
The changes now proposed the most substantial of which being merely
the replacement of the interim National assembly with another
legislative arm for the Government during the transition period until the
regular National Assembly shall have been constituted do not appear
to be of such complexity as to require considerable time to be brought
home to the full understanding of the people. And, in fact, the massive
and wide-ranging informational and educational campaign to this end
has been and still is in full swing, with all the media the barangay, the
civic and sectoral groups, and even the religious all over the land in
acting and often enthusiastic if not frenetic involvement.
Indeed, when the people cast their votes on October 16, a negative
vote could very well mean an understanding of the proposals which
they reject; while an affirmative vote could equally be indicative Of
such understanding and/or an abiding credence in the fidelity with
which the President has kept the trust they have confided to him as
President and administrator of martial rule
IV
Conclusion
It is thus my considered view that no question viable for this court to
pass judgment upon is posed. Accordingly, I vote for the outright
dismissal of the three petitions at bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of cases starting from
Planas v. Commission on Elections continuing with the epochal
resolution in Javellana v. Executive Secretary and followed
successively in three crucial decisions, Aquino v. Ponce Enrile Aquino
v. Commission on Elections, and Aquino v Military Commission,5
manifest to the same degree the delicate and awesome character of
the function of judicial review. While previous rulings supply guidance
and enlightenment, care is to be taken to avoid doctrinaire rigidity
unmindful of altered circumstances and the urgencies of the times. It is
inappropriate to resolve the complex problems of a critical period
without full awareness of the consequences that flow from whatever
decision is reached. Jural norms must be read in the context of social
facts, There is need therefore of adjusting inherited principles to new
needs. For law, much more so constitutional law, is simultaneously a
reflection of and a force in the society that it controls. No quality then
can be more desirable in constitutional adjudication than that
intellectual and imaginative insight which goes into the heart of the
matter. The judiciary must survey things as they are in the light of what
they must become It must inquire into the specific problem posed not
only in terms of the teaching of the past but also of the emerging
political and legal theory, especially so under a leadership notable for
its innovative approach to social problems and the vigor of its
implementation. This, on the one side. It must equally be borne in mind
through that this Court must be conscious of the risk inherent in its
being considered as a mere subservient instrument of government
policy however admittedly salutary or desirable. There is still the need
to demonstrate that the conclusion reached by it in cases appropriate
for its determination has support in the law that must be applied. To my
mind that was the norm followed, the conclusion reached being that the
three petitions be dismissed. I am in agreement. It is with regret
however that based on my reading of past decisions, both Philippine
and American, and more specifically my concurring opinion in Aquino
v. Ponce Enrile, I must dissent from the proposition set forth in the able
and scholarly opinion of Justice Martin that there is concentration of
power in the President during a crisis government. Consequently, I
cannot see my way clear to accepting the view that the authority to
propose amendments is not open to question. At the very least, serious
doubts could be entertained on the matter.
1. With due respect then, I have to dissociate myself from my
brethren who would rule that governmental powers in a crisis
government, following Rossiter, "are more or less concentrated in the
President." Adherence to my concurring and dissenting opinion in
Aquino v. Ponce Enrile leaves me no choice.
It must be stated at the outset that with the sufficiency of doctrines
supplied by our past decisions to point the way to what I did consider
the appropriate response to the basic issue raised in the Aquino and
the other habeas corpus petitions resolved jointly, it was only in the
latter portion of my opinion that reference was made to United States
Supreme Court pronouncements on martial law, at the most
persuasive in character and rather few in number "due no doubt to the,
absence in the American Constitution of any provision concerning it." 7
It was understandable then that it was only after the landmark Ex parte
Milligan case, that commentators like Cooley in 1868 and Watson in
1910 paid attention, minimal by that, to the subject." It was next set
forth that in the works on American constitutional law published in this
century specially after the leading cases of cases Sterling v. Constant
in and Duncan v. Kahanamoku, "there was a fuller treatment of the
question of martial law While it is the formulation of Willoughby that for
me is most acceptable, my opinion did take note that another
commentator, Burdick, came out earlier with a similar appraisal.10
Thus: "So called martial law, except in occupied territory of an enemy
is merely the calling in of the aid of military forces by the executive,
who is charged with the enforcement of the law, with or without special
authorization by the legislature. Such declaration of martial law does
not suspend the civil law, though it may interfere with the exercise of
one's ordinary rights. The right to call out the military forces to maintain
order and enforce the law is simply part of the Police power, It is only
justified when it reasonably appears necessary, and only justifies such
acts as reasonably appear necessarily to meet the exigency, including
the arrest, or in extreme cases the. killing of those who create the
disorder or oppose the authorities. When the exigency is over the
members of the military forces are criminally and civilly habit for acts
done beyond the scope of reasonable necessity. When honestly and
reasonably coping with a situation of insurrection or riot a member of
the military forces cannot be made liable for his acts, and persons
reasonably arrested under such circumstances will not, during the
insurrection or riot, be free by writ of habeas corpus." 11 When the
opinion cited Willoughby's concept of martial law, stress was laid on his
being "Partial to the claims of liberty."12 This is evident in the explicit
statement from his work quoted by me: "There is, then, strictly
speaking, no such thing in American law as a declaration of martial law
whereby military law is substituted for civil law. So-called declarations
of martial law are, indeed, often made but their legal effect goes no
further than to warn citizens that the military powers have been called
upon by the executive to assist him in the maintenance of law and
order, and that, while the emergency lasts, they must, upon pain of
arrest and punishment not commit any acts which will in any way
render more difficult the restoration of order and the enforcement of
law. Some of the authorities stating substantially this doctrine are
quoted in the footnote below Nor did I stop there. The words of Willis
were likewise cited: "Martial law proper, that is, military law in case of
insurrection, riots, and invasions, is not a substitute for the civil law, but
is rather an aid to the execution of civil law. Declarations of martial law
go no further than to warn citizens that the executive has called upon
the military power to assist him in the maintenance of law and order.
While martial law is in force, no new powers are given to the executive
and no civil rights of the individual, other than the writ of habeas
corpus, are suspended. The relations between the citizen and his
stature unchanged."14
The conclusion reached by me as to the state of American federal law
on the question of martial law was expressed thus: 4'1 It is readily
evident that even when Milligan supplied the only authoritative
doctrine, Burdick and Willoughby did not ignore the primacy of civil
liberties. Willis wrote after Sterling. It would indeed be surprising if his
opinion were otherwise. After Duncan, such an approach becomes
even more strongly fortified. Schwartz, whose treatise is the latest to
be published, has this summary of what he considers the present state
of American law: 'The Milligan and Duncan cases show plainly that
martial law is the public law of necessity. Necessities alone calls it
forth, necessity justifies its exercise; and necessities measures the
extended degree to which it may be It is, the high Court has affirmed,
an unbending rule of law that the exercise of military power, where the
rights of the citizen are concerned, may, never be pushed beyond what
the exigency requires. If martial law rule survive the necessities on
which alone it rests, for even a single minute it becomes a mere
exercise of lawless violence.' Further: Sterling v. Constantin is of basic
importance. Before it, a number of decisions, including one the highest
Court, went or on the theory that the executive had a free hand in
taking martial law measures. Under them, it has been widely supposed
that in proclamation was so far conclusive that any action taken under
it was immune from judicial scrutiny. Sterling v. Constantin definitely
discredits these earlier decisions and the doctrine of conclusiveness
derived from them. Under Sterling v. Constantin, where martial law
measures impinge upon personal or property rights-normally beyond
the scope of military power, whose intervention is lawful only because
184
an abnormal Actuation has made it necessary the executive's ipse dixit
is not of itself conclusive of the necessity.'"15
There was likewise an effort on my part to show what for me is the
legal effect of martial law being expressly provided for in the
Constitution rather than being solely predicated on the common law
power based on the urgent need for it because of compelling
circumstances incident to the state of actual clash of arms: "It is not to
be lost sight of that the basis for the declaration of martial law in the
Philippines is not mere necessity but an explicit constitutional
provision. On the other hand, Milligan, which furnished the foundation
for Sterling and Duncan had its roots in the English common law.
There is pertinence therefore in ascertaining its significance under that
system. According to the noted English author, Dicey: 'Martial law,' in
the proper sense of that term, , in which - it means the suspension of
ordinary law and the temporary government of a country or parts of it
be military tribunals, is unknown to the law of England. We have
nothing equivalent to what is called in France the "Declaration of the
State of Siege," under which the authority ordinarily vested in the civil
power for the maintenance of order and police passes entirely to the
army (autorite militaire). This is an unmistakable proof of the
permanent supremacy of the law under our constitution. There was this
qualification: 'Martial law is sometimes employed as a name for the
common law right of the Crown and its servants to repel force by force
in the case of invasion, insurrection, riot, or generally of any violent
resistance to the law. This right, or power, is essential to the very
existence of orderly government, and is most assuredly recognized in
the most ample manner by the law of England. It is a power which has
in itself no special connection with the existence of an armed force.
The Crown has the right to put down breaches of the peace. Every
subject, whether a civilian or a soldier, whether what is called a servant
of the government,' such for example as a policeman, or a person in no
way connected with the administration, not only has the right, but is, as
a matter of legal duty, bound to assist in putting down breaches of the
peace. No doubt policemen or soldiers are the persons who, as being
specially employed in the maintenance of order, are most generally
called upon to suppress a riot, but it is clear that all loyal subjects are
bound to take their part in the suppression of riots."16
Commitment to such an approach results in my inability to subscribe to
the belief that martial law in terms of what is provided both in the 1935
and the present Constitution, affords sufficient justification for the
concentration of powers in the Executive during periods of crisis. The
better view, considering the juristic theory on which our fundamental
law rests is that expressed by Justice Black in Duncan v. Kahanamoku:
"Legislatures and courts are not merely cherished American
institutions; they are indispensable to our government. 17 If there has
been no observance of such a cardinal concept at the present, it is due
to the fact that before the former Congress could meet in regular
session anew, the present Constitution was adopted, abolishing it and
providing for an interim National Assembly, which has not been
convened.18 So I did view the matter.
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile
opinion. Reference was made to the first chapter on his work on
Constitutional Dictatorship where he spoke of martial rule as "a device
designed for use in the crisis of invasion or rebellion. It may be most
precisely defined as an extension of military government to the civilian
population, the substitution of the will of a military commander for the
will of the people's elected government."19 Since, for me at least, the
Rossiter characterization of martial law has in it more of the common
law connotation, less than duly mindful of the jural effects of its
inclusion in the Constitution itself as a legitimate device for coping with
emergency conditions in times of grave danger, but always subject to
attendant limitations in accordance with the fundamental postulate of a
charter's supremacy, I felt justified in concluding: "Happily for the
Philippines, the declaration of martial law lends itself to the
interpretation that the Burdick, Willoughby, Willis, Schwartz
formulations paying due regard to the primacy of liberty possess
relevance. lt cannot be said that the martial rule concept of Rossiter,
latitudinarian in scope, has been adopted, even on the assumption that
it can be reconciled with our Constitution. What is undeniable is that
President Marcos has repeatedly maintained that Proclamation No.
1081 was precisely based on the Constitution and that the validity of
acts taken there under could be passed upon by the Supreme court.
For me that is quite reassuring, persuaded as I am likewise that the
week- of Rossiter is opposed to the fundamental concept of our polity,
which puts a premium on freedom."20
3. Candor and accuracy compel the admission that such a
conclusion his to be qualified. For in the opinion of the Court in the
aforecited Aquino v. Commission on Elections, penned by Justice
Makasiar, the proposition was expressly affirmed "that as Commander-
in-Chief and enforcer or administrator of martial law, the incumbent
President of the Philippines can reclamations, orders and decrees
during the period Martial Law essential to the security and preservation
of the Republic, to the defense of the political and social liberties of the
people and to the institution of reforms to prevent the resurgence of
rebellion or insurrection or secession or the threat thereof as well as to
meet the impact of a worldwide recession, inflation or economic crisis
which presently threatens all nations including highly developed
countries." 21 To that extent, Rossiter's view mainly relied upon, now
possesses Juristic significant in this jurisdiction. What, for me at least,
gives caused for concern is that with the opinion of the Court this
intrusion of what I would consider an alien element in the limited
concept of martial law as set forth in the Constitution would be allowed
further incursion into the corpus of the law, with the invocation of the
view expressed in the last chapter of his work approving tile
"concentration of governmental power in a democracy [as] a corrective
to the crisis inefficiencies inherent in the doctrine of the separation of
powers." 22 It is to the credit of the late Professor Rossiter as an
objective scholar that in the very same last chapter, just three pages
later, he touched explicitly on the undesirable aspect of a constitutional
dictatorship. Thus: "Constitutional Dictatorship is a dangerous thing. A
declaration of martial law or the passage of an enabling act is a step
which must always be feared and sometimes bitterly resisted, for it is at
once an admission of the incapacity of democratic institutions to
defend the order within which they function and a too conscious
employment of powers and methods long ago outlawed as destructive
of constitutional government. Executive legislation, state control of
popular liberties, military courts, and arbitrary executive action were
governmental features attacked by the men who fought for freedom not
because they were inefficient or unsuccessful, but because they were
dangerous and oppressive. The reinstitution of any of these features is
a perilous matter, a step to be taken only when the dangers to a free
state will be greater if the dictatorial institution is not adopted."23
4. It is by virtue of such considerations that I find myself unable
to share the view of those of my brethren who would accord
recognition to the Rossiter concept of concentration of governmental
power in the Executive during periods of crisis. This is not to lose sight
of the undeniable fact that in this country through the zeal, vigor, and
energy lavished on projects conducive to the general welfare,
considerable progress has been achieved under martial rule. A fair
summary may be found in a recent address of the First Lady before the
delegates to the 1976 international Monetary Fund-World Bank Joint
Annual Meeting: "The wonder is that so much has been done in so
brief a time. Since September 1972, when President Marcos
established the crisis government, peace and order have been
restored in a country once avoided as one of the most unsafe in the
world. We have liberated millions of Filipino farmers from the bondage
of tenancy, in the most vigorous and extensive implementation of
agrarian reform."24 Further, she said: "A dynamic economy has
replaced a stagnant order, and its rewards are distributed among the
many, not hoarded by a few. Our foreign policy, once confined by fear
and suspicion to a narrow alley of self-imposed isolation, now travels
the broad expressways of friendship and constructive interaction with
the whole world, these in a new spirit of confidence and self-reliance.
And finally, forced to work out our own salvation, the Filipino has re-
discovered the well-springs of his strength and resilience As Filipinos,
we have found our true Identity. And having broken our crisis of
Identity, we are no longer apologetic and afraid. "25 The very Idea of a
crisis, however, signifies a transitory, certainly not a permanent, state
of things. President Marcos accordingly has not been hesitant in giving
utterance to his conviction that full implementation of the modified
parliamentary system under the present Constitution should not be
further delayed. The full restoration of civilian rule can thus be
expected. That is more in accord with the imperatives of a
constitutional order. It should not go unnoticed either that the President
has referred to the present regime as one of "constitutional
authoritarianism." That has a less objectionable ring, authority being
more Identified with the Idea of law, as based on right, the very
antithesis of naked force, which to the popular mind is associated with
dictatorship, even if referred to as "constitutional."
For me likewise, that equally eminent scholar Corwin, also invoked in
the opinion of the Court, while no doubt a partisan of d strong
Presidency, was not averse to constitutional restraints even during
periods of crisis. So I would interpret this excerpt from the fourth edition
of his classic treatise on the Presidency: "A regime of martial law may
be compendiously, if not altogether accurately, defined as one in which
the ordinary law, as administered by the ordinary courts, is superseded
for the time being by the will of a military commander. It follows that,
when martial law is instituted under national authority, it rests ultimately
on the will of the President of the United States in his capacity as
Commander-in-Chief. It should be added at once, nevertheless, that
the subject is one in which the record of actual practice fails often to
support the niceties of theory. Thus, the employment of the military arm
in the enforcement of the civil law does not invariably, or even usually,
involve martial law in the strict sense, for, as was noted in the
preceding section, soldiers are often placed simply at the disposal and
direction of the civil authorities as a kind of supplementary police, or
posse comitatus on the other hand be reason of the discretion that the
civil authorities themselves are apt to vest in the military in any
emergency requiring its assistance, the line between such an
employment of the military and a regime of martial law is frequently any
but a hard and fast one. And partly because of these ambiguities the
conception itself of martial law today bifurcates into two conceptions,
one of which shades off into military government and the other into the
situation just described, in which the civil authority remains theoretically
in control although dependent on military aid. Finally, there is the
situation that obtained throughout the North during the Civil War, when
the privilege of the writ of habeas corpus was suspended as to certain
classes of suspects, although other characteristics of martial law were
generally absent."26
185
It is by virtue of the above considerations that, with due respect to the
opinion of my brethren, I cannot yield assent to the Rossiter view of
concentration of governmental powers in the Executive during martial
law.
5 There is necessity then, for me at least, that the specific
question raised in all three petitions be squarely faced. It is to the credit
of the opinion of the Court that it did so. The basic issue posed
concerns the boundaries of the power of the President during this
period of martial law, more precisely whether it covers proposing
amendments to the Constitution. There is the further qualification if the
stand of respondents be taken into account that the interim National
Assembly has not been convened and is not likely to be called into
session in deference to the wishes of the people as expressed in three
previous referenda. It is the ruling of the majority that the answer be in
the affirmative, such authority being well within the area of presidential
competence. Again I find myself unable to join readily in that
conviction. It does seem to me that the metes and bounds of the
executive domain, while still recognizable, do appear blurred. This is
not to assert that there is absolutely no basis for such a conclusion,
sustained as it is by a liberal construction of the principle that underlies
Aquino v. Commission on Elections as to the validity of the exercise of
the legislative prerogative by the President as long as the interim
National Assembly is not For me, the stage of certitude has not been
reached. I cannot simply ignore the vigorous plea of petitioners that
there is a constitutional deficiency consisting in the absence of any
constituent power on the part of the President, the express provision of
the Constitution conferring it on the by team National Assembly.27 The
learned advocacy reflected in the pleadings as well as the oral
discourse of Solicitor General Estelito P. Mendoza 21 failed to erase
the grave doubts in my mind that the Aquino doctrine as to the
possession of legislative competence by the President during this
period of transition with the interim lawmaking body not called into
session be thus expanded. The majority of my brethren took that step. I
am not prepared to go that far. I will explain why.
The way for me, is beset with obstacles. In the first place, such an
approach would lose sight of the distinction between matters legislative
and constituent. That is implicit in the treatise on the 1935 Constitution
by Justices Malcolm and Laurel In their casebook published the same
year, one of the four decisions on the subject of constitutional
amendments is Ellingham v. Dye 31 which categorically distinguished
between constituent and legislative powers. Dean Sinco, a well-known
authority on the subject, was quite explicit. Thus: "If there had been no
express provision in the Constitution granting Congress the power to
propose amendments, it would be outside its authority to assume that
power. Congress may not claim it under the general grant of legislative
power for such grant does not carry with it the right 'to erect the state,
institute the form of its government,' which is considered a function
inherent in the people. Congressional law- making authority is limited
to the power of approving the laws 'of civil conduct relating to the
details and particulars of the government instituted,' the government
established by the people."12 If that distinction be preserved, then for
me the aforecited Aquino decision does not reach the heart of the
matter. Nor is this all. In the main opinion of Justice Makasiar as well
as that of the then Justice, now Chief Justice, Castro, support for the
ruling that the President cannot be deemed as devoid of legislative
power during this transition stage is supplied by implications from
explicit constitutional provisions.13 That is not the case with the power
to propose amendments. It is solely the interim National Assembly that
is mentioned. That is the barrier that for me is well-nigh
insurmountable. If I limit myself to entertaining doubts rather than
registering a dissent on this point, it is solely because of the
consideration, possessed of weight and significance, that there may be
indeed in this far-from-quiescent and static period a need for al.
amendments. I do not feel confident therefore that a negative vote on
my part would be warranted. What would justify the step taken by the
President, even if no complete acceptance be accorded to the view
that he was a mere conduit of the barangays on this matter, is that as
noted in both qualified concurrences by Justices Teehankee and
Munoz Palma in Aquino, as far as the legislative and appropriately
powers are concerned, is the necessity that unless such authority be
recognized, there may be paralyzation of governmental activities,
While not squarely applicable, such an approach has, to my mind, a
persuasive quality as far as the power to propose amendments is
concerned.
Thus I would confine myself to the expression of serious doubts on the
question rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me
free to concur in the result that the petitions be dismissed. That is to
accord respect to the principle that judicial review goes no further than
to checking clear infractions of the fundamental law, except in the field
of human rights where a much greater vigilance is required, That is to
make of the Constitution a pathway to rather than a barrier against a
desirable objective. -As shown by my concurring and dissenting
opinion in Tolentino Commission on Elections '34 a pre-martial law
decision, the fundamental postulate that sovereignty resides in the
people exerts a compelling force requiring the judiciary to refrain as
much as possible from denying the people the opportunity to make
known their wishes on matters of the utmost import for the life of the
nation, Constitutional amendments fall in that category. I am fortified in
that conviction by the teaching of persuasive American decisions There
is reinforcement to such a conclusion from retired Chief Justice
Concepcion's concurring and dissenting opinion in Aytona v.
Castillo,17 Which I consider applicable to the present situation. These
are his words: "It is well settled that the granting of writs of prohibition
and mandamus is ordinarily within the sound discretion of the courts, to
be exercised on equitable principles, and that said writs should be
issued when the right to the relief is clear * * by As he noted in his
ponencia in the later case of Gonzales v. Hechanova,19 an action for
prohibition, while petitioner was sustained in his stand, no injunction
was issued. This was evident in the dispositive portion where judgment
was rendered "declaring that respondent Executive Secretary had and
has no power to authorize the importation in question; that he
exceeded his jurisdiction in granting said authority; that said
importation is not sanctioned by law and is contrary to its provisions;
and that, for lack of the requisite majority, the injunction prayed for
must be and is, accordingly, denied." 40 With the illumination thus
supplied, it does not necessarily follow that even a dissent on my part
would necessarily compel that I vote for the relief prayed for. Certainly
this is not to belittle in any way the action taken by petitioners in filing
these suits. That, for me, is commendable. It attests to their belief in
the rule of law. Even if their contention as to lack of presidential power
be accepted in their entirety, however, there is still discretion that may
be exercised on the matter, prohibition being an equitable remedy.
There are, for me, potent considerations that argue against acceding to
the plea. With the prospect of the interim National Assembly being
convened being dim, if not non- existent, if only because of the results
in three previous referenda, there would be no constitutional agency
other than the Executive who could propose amendments, which, as
noted. may urgently press for adoption. Of even greater weight, to my
mind, is the pronouncement by the President that the plebiscite is
intended not only to solve a constitutional anomaly with the country
devoid of a legislative body but also to provide. the machinery be which
the termination of martial law could be hastened. That is a
consummation devoutly to be wished. That does militate strongly
against the stand of petitioners. The obstruction they would pose may
be fraught with pernicious consequences. It may not be amiss to refer
anew to what I deem the cardinal character of the jural postulate
explicitly affirmed in both the 1935 and the present Constitutions that
sovereignty resides in the people. So I made clear in Tolentino v.
Commission on Elections and thereafter in my dissent in Javellana v.
The Executive Secretary" and my concurrence in Aquino v.
Commission on Elections. 42 The destiny of the country lies in their
keeping. The role of leadership is not to be minimized. It is crucial it is
of the essence. Nonetheless, it is their will, if given expression in a
manner sanctioned by law and with due care that there be no mistake
in its appraisal, that should be controlling. There is all the more reason
then to encourage their participation in the power process. That is to
make the regime truly democratic. Constitutional orthodoxy requires,
however, that the fundamental law be followed. So I would interpret
Laski, 43 Corwin, 44 Lerner,45, Bryn-Jones, 46 and McIver.47
7. There is reassurance in the thought that this Court has
affirmed its commitment to the principle that the amending process
gives rise to a justiciable rather than a political question. So, it has
been since the leading case of Gonzales v. Commission on Election
S.48 It has since then been followed in Tolentino v. Commission on
Elections 49 Planas v. Commission on Elections," and lastly, in
Javellana v. The Executive Secretary This Court did not heed the
vigorous plea of the Solicitor General to resurrect the political question
doctrine announced in Mabanag v. Lopez Vito. 52 This is not to deny
that the federal rule in the United States as set forth in the leading case
of Coleman v. Miller , 53 a 1939 decision, and relatively recent State
court decisions, supply ammunition to such a contention.,51 That may
be the case in the United States, but certainly not in this jurisdiction.
Philippine constitutional tradition is to the contrary. It can trace its origin
to these words in the valedictory address before the 1934-35
Constitutional Convention by the illustrious Claro M. Recto: "It is one of
the paradoxes a democracy that the people of times place more
confidence in instrumentalities of the State other than those directly
chosen by them for the exercise of their sovereignty It can be said with
truth, therefore, that there has invariably been a judicial predisposition
to activism rather than self-restraint. The thinking all these years has
been that it goes to the heart of constitutionalism. It may be said that
this Court has shunned the role of a mere interpreter; it did exercise at
times creative power. It has to that extent participated in the molding of
policy, It has always recognized that in the large and undefined field of
constitutional law, adjudication partakes of the quality of statecraft. The
assumption has been that just because it cannot by itself guarantee the
formation, much less the perpetuation of democratic values or,
realistically, it cannot prevail against the pressure of political forces if
they are bent in other directions. it does not follow that it should not
contribute its thinking to the extent that it can. It has been asked, it will
continue to be asked, to decide momentous questions at each critical
stage of this nation's life.
There must be, however, this caveat. Judicial activism gives rise to
difficulties in an era of transformation and change. A society in flux
calls for dynamism in "he law, which must be responsive to the social
forces at work. It cannot remain static. It must be sensitive to life. This
Court then must avoid the rigidity of legal Ideas. It must resist the
temptation of allowing in the wasteland of meaningless abstractions. It
must face stubborn reality. It has to have a feel for the complexities of
186
the times. This is not to discount the risk that it may be swept too far
and too fast in the surge of novel concepts. The past too is entitled to a
hearing; it cannot just be summarily ignored. History still has its uses. It
is not for this Court to renounce the virtue of systematic jural
consistency. It cannot simply yield to the sovereign sway of the
accomplished fact. It must be deaf to the dissonant dialectic of what
appears to be a splintered society. It should strive to be a factor for
unity under a rule of law. There must be, on its part, awareness of the
truth that a new juridical age born before its appointed time may be the
cause of unprecedented travail that may not end at birth. It is by virtue
of such considerations that I did strive for a confluence of principle and
practicality. I must confess that I did approach the matter with some
misgivings and certainly without any illusion of omniscience. I am
comforted by the thought that immortality does not inhere in judicial
opinions. 8. 1 am thus led by my studies on the subject of constitutional
law and, much more so, by previous judicial opinions to concur in the
dismissal of the petitions. If I gave expression to byes not currently
fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I am
the first to recognize the worth of' the social and economic reforms so
needed by the troubled present that have been introduced and
implemented. There is no thought then of minimizing, much less of
refusing to concede, the considerable progress that has been made
and the benefits that have been achieved under this Administration.
Again, to reiterate one of my cherished convictions, I certainly approve
of the adherence to the fundamental principle of popular sovereignty
which, to be meaningful however, requires both freedom in its
manifestation and accuracy in ascertaining what it wills. Then, too, it is
fitting and proper that a distinction was made between two aspects of
the coming poll, the referendum and the plebiscite. It is only the latter
that is impressed with authoritative force. So the Constitution requires.
Lastly, there should be, as I did mention in my concurrence in Aquino
v. Commission on Elections,56 full respect for free speech and press,
free assembly and free association. There should be no thought of
branding the opposition as the enemy and the expression of its views
as anathema, Dissent, it is fortunate to note, has been encouraged. It
has not been Identified with disloyalty. That ought to be the case, and
not solely due to presidential decrees. Constructive criticism is to be
welcomed not so much because of the right to be heard but because
there may be something worth hearing. That is to ensure a true
ferment of Ideas, an interplay of knowledgeable minds. There are
though well- defined limits, One may not advocate disorder in the name
of protest, much less preach rebellion under the cloak of dissent.. What
I mean to stress is that except on a showing of clear and present
danger, there must be respect for the traditional liberties that make a
society truly free.
TEEHANKEE, J., dissenting:
1. On the merits: I dissent from the majority's dismissal of the
petitions for lack of merit and vote to grant the petitions for the
following reasons and considerations: 1. It is undisputed that neither
the 1935 Constitution nor the 1973 Constitution grants to the
incumbent President the constituent power to propose and approve
amendments to the Constitution to be submitted to the people for
ratification in a plebiscite. The 1935 Constitution expressly vests the
constituent power in Congress, be a three-fourths vote of all its
members, to propose amendments or call a constitutional convention
for the purpose The 1973 Constitution expressly vests the constituent
power in the regular National Assembly to propose amendments (by a
three-fourths vote of all its members) or "call a constitutional
convention" (by a two-thirds vote of all its members) or "submit the
question of calling such convention to the electorate in an election" (by
a majority vote of all its members ) .2
The transitory provisions of the 1973 Constitution expressing vest the
constituent power during the period of transition in the interim National
Assembly "upon special call be the Prime Minister (the incumbent
President 3)... by a majority ore of all its members (to) propose
amendments."
Since the Constitution provides for the organization of the essential
departments of government, defines and delimits the powers of each
and prescribes the manner of the exercise of such powers, and the
constituent power has not been granted to but has been withheld from
the President or Prime Minister, it follows that the President's
questioned decrease proposing and submitting constitutional
amendments directly to the people (without the intervention of the
interim National Assembly in whom the power is expressly vested) are
devoid of constitutional and legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is
controlling in the case at bar In therein declaring null and void the acts
of the 1971 Constitutional Convention and of the Comelec in calling a
plebiscite with the general elections scheduled for November 8, 1971
for the purpose of submitting for the people's ratification an advance
amendment reducing the voting age from 21 years to 18 years, and
issuing writs of prohibition and injunction against the holding of the
plebiscite, this Court speaking through Mr. Justice Barredo ruled that --
The Constitutional provisions on amendments "dealing with the
procedure or manner of amending the fundamental law are binding
upon the Convention and the other departments of the government,
(land) are no less binding upon the people
As long as an amendment is formulated and submitted under the aegis
of the present Charter, any proposal for such amendment which is not
in conformity with the letter, spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of this Court ;8
The real issue here cannot be whether or not the amending process
delineated by the present Constitution may be disregarded in favor of
allowing the sovereign people to express their decision on the
proposed amendments, if only because it is evident that the very Idea
of departing from the fundamental law is anachronistic in the realm of
constitutionalism and repugnant to the essence of the rule of law,"; 9
and
-Accordingly barred the plebiscite as improper and premature, since
"the provisional nature of the proposed amendments and the manner
of its submission to the people for ratification or rejection" did not
"conform with the mandate of the people themselves in such regard, as
expressed in the Constitution itself', 10 i.e. the mandatory requirements
of the amending process as set forth in the Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar,
mutatis, mutandis, it is clear that where the proposed amendments are
violative of the Constitutional mandate on the amending process not
merely for being a "partial amendment" of a "temporary or provisional
character" (as in Tolentino) but more so for not being proposed and
approved by the department vested by the Constitution with the
constituent power to do so, and hence transgressing the substantive
provision that it is only the interim National Assembly, upon special call
of the interim Prime Minister, bu a majority vote of all its members that
may propose the amendments, the Court must declare the
amendments proposals null and void.
4. This is so because the Constitution is a "superior paramount
law, unchangeable by ordinary means" 11 but only by the particular
mode and manner prescribed therein by the people. As stressed by
Cooley, "by the Constitution which they establish, (the people) not only
tie up the hands of their official agencies but their own hands as well;
and neither the officers of the State, nor the whole people as an
aggregate body, are at liberty to take action in opposition to this
fundamental law." 12
The vesting of the constituent power to propose amendments in the
legislative body (the regular National Assembly) or the interim National
Assembly during the transition period) or in a constitutional convention
called for the purpose is in accordance with universal practice. "From
the very necessity of the case" Cooley points out "amendments to an
existing constitution, or entire revisions of it, must be prepared and
matured by some body of representatives chosen for the purpose. It is
obviously impossible for the whole people to meet, prepare, and
discuss the proposed alterations, and there seems to be no feasible
mode by which an expression of their will can be obtained, except by
asking it upon the single point of assent or disapproval." This body of
representatives vested with the constituent - power "submits the result
of their deliberations" and "puts in proper form the questions of
amendment upon which the people are to pass"-for ratification or
rejection.13
5. The Court in Tolentino thus rejected the argument "that the
end sought to be achieved is to be desired" and in denying
reconsideration in paraphrase of the late Claro M. Recto declared that
"let those who would put aside, invoking grounds at best controversial,
any mandate of the fundamental purportedly in order to attain some
laudable objective bear in mind that someday somehow others with
purportedly more laudable objectives may take advantage of the
precedent and continue the destruction of the Constitution, making
those who laid down the precedent of justifying deviations from the
requirements of the Constitution the victims of their own folly."
This same apprehension was echoed by now retired Justice Calixto O.
Zaldivar in his dissenting opinion in the Ratification cases 14 that "we
will be opening the gates for a similar disregard to the Constitution in
the future. What I mean is that if this Court now declares that a new
Constitution is now in force because the members of the citizens
assemblies had approved said new Constitution, although that
approval was not in accordance with the procedure and the
requirements prescribed in the 1935 Constitution, it can happen again
in some future time that some amendments to the Constitution may be
adopted, even in a manner contrary to the existing Constitution and the
law, and then said proposed amendments is submitted to the people in
any manner and what will matter is that a basis is claimed that there
was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government."
6. It is not legally tenable for the majority, without overruling the
controlling precedent of Tolentino (and without mustering the required
majority vote to so overrule) to accept the proposed; amendments as
valid notwithstanding their being "not in conformity with the letter, spirit
and intent of the provision of the Charter for effecting amendments" on
the reasoning that "If the President has been legitimately discharging
the legislative functions of the interim National Assembly, there is no
reason why he cannot validly discharge the functions."15
187
In the earlier leading case of Gonzales vs. Comelec16, this Court
speaking through now retired Chief Justice Roberto Concepcion,
pointer out that "Indeed, the power to Congress"17 or to the National
Assembly.18 Where it not for the express grant in the Transitory
Provisions of the constituent power to the interim National Assembly,
the interim National Assembly could not claim the power under the
general grant of legislative power during the transition period.
The majority's ruling in the Referendum cases19 that the Transitory
Provision in section 3(2) recognized the existence of the authority to
legislate in favor of the incumbent President during the period of
martial law manifestly cannot be stretched to encompass the
constituent power as expressly vested in the interim National Assembly
in derogation of the allotment of powers defined in the Constitution.
Paraphrasing Cooley on the non-delegation of legislative power as one
of the settled maxims of constitutional law, 20 the contituent power has
been lodged by the sovereign power of the people with the interim
National Assembly during the transition period and there it must remain
as the sole constitutional agency until the Constitution itself is changed.
As was aptly stated by Justice Jose P. Laurel in the 1936 landmak
case of Angara vs. Electoral Commissioner21, "(T)he Constitution sets
forth in no uncertain language and restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations
are transcended it would be inconceivable if the Constitution had not
provided for a mechanism by which to direct the course of government
along constitutional channels, for then the distribution of powers
sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our
Constitution are real as they should be in any living Constitution".
7. Neither is the justification of "constitutional impasses"
tenable. The sentiment of the people against the convening of the
interim National Assembly and to have no elections for "at least seven
(7) years" Concededly could not ament the Constitution insofar as the
interim National Assembly is concerned (since it admittendly came into
existence "immediately" upon the proclamation of ratification of the
1973 Constitution), much less remove the constituent power from said
interim National Assembly.
As stressed in the writer's separate opinion in the Referendum
cases22, "(W)hile it has been advanced that the decision to defer the
initial convocation of the interim National Assembly was supported by
the results of the referendum in January, 1973 when the people voted
against the convening of the interim National Assembly for at least
seven years, such sentiment cannot be given any legal force and effect
in the light of the State's admission at the hearing that such
referendums are merely consultative and cannot amend the
Constitution or Provisions which call for the 'immediate existence' and
'initial convening of the interim National Assembly to 'give priority to
measures for the orderly transition from the presidential to the
parliamentary system' and the other urgent measures enumerated in
section 5 thereof".
While the people reportedly expressed their mandate against the
convening of the interim National Assembly to dischange its legislative
tasks during the period of transition under martial law, they certainly
had no opportunity and did not express themselves against convening
the interim National Assembly to discharge the constituent power to
propose amendments likewise vested in it by the people's mandate in
the Constitution.
In point of fact, when the holding of the October 16, 1976 referendum
was first announced, the newspapers reported that among the seven
questions proposed by the sanggunian and barangay national
executive committies for the referendum was the convening of the
interim National Assembly.23
It was further reported that the proposals which were termed tentative
"will be discussed and studied by (the President), the members of the
cabinet, and the security council" and that the barangays felt,
notwithstanding the previous referenda on the convening of the interim
National Assembly that "it is time to again ask the people's opinion of
this matter "24
8. If proposals for constitutional amendments are now deemed
necessary to be discussed and adopted for submittal to the people,
strict adherence with the mandatory requirements of the amending
process as provided in the Constitution must be complied with. This
means, under the teaching of Tolentino that the proposed amendments
must validly come from the constitutional agency vested with the
constituent power to do so, namely, the interim National Assembly, and
not from the executive power as vested in the Prime Minister (the
incumbent President) with the assistance of the Cabinet 25 from whom
such power has been withheld.
It will not do to contend that these proposals represent the voice of the
people for as was aptly stated by Cooley "Me voice of the people,
acting in their sovereign capacity, can be of legal force only when
expressed at the times and under the conditions which they
themselves have prescribed and pointed out by the Constitution. ...
."26

The same argument was put forward and rejected by this Court in
Tolentino which rejected the contention that the "Convention being a
legislative body of the highest order (and directly elected by the people
to speak their voice) is sovereign, in as such, its acts impugned by
petitioner are beyond the control of Congress and the Courts" and
ruled that the constitutional article on the amending process" is nothing
more than a part of the Constitution thus ordained by the people.
Hence, in continuing said section, We must read it as if the people
said, "The Constitution may be amended, but it is our will that the
amendment must be proposed and submitted to Us for ratification only
in the manner herein provided'".27
This Court therein stressed that "This must be so, because it is plain to
Us that the framers of the Constitution took care that the process of
amending the same should not be undertaken with the same ease and
facility in changing an ordinary legislation. Constitution making is the
most valued power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen for this
nation, and which we of the succeeding generations generally cherish.
And because the Constitution affects the lives, fortunes, future and
every other conceivable aspect of the lives of all the people within the
country and those subject to its sovereignity, ever constitution worthy
of the people for which it is intended must not be prepared in haste
without adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less
importance than the whole Constitution itself, and perforce must be
conceived and prepared with as much care and deliberation;" and that
"written constitutions are supposed to be designed so as to last for
some time, if not for ages, or for, at least, as long as they can be
adopted to the needs and exigencies of the people, hence, they must
be insulated against precipitate and hasty actions motivated by more or
less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less
stringent, made so by the people themselves, in regard to the process
of their amendment."28
9. The convening of the interim National Assembly to exercise
the constituent power to proposed amendments is the only way to fulfill
the express mandate of the Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs.
Comelec 29 in the setting as in of a Comelec resolution banning the
use of political taped jingles by candidates for Constitutional
Convention delegates int he special 1970 elections, "the concept of the
Constitution as the fundamental law, setting forth the criterion for the
validity of any public act whether proceeding from the highest official or
the lowest functionary, is a postulate of our system of government.
That is to amnifst fealty to the rule of law, with priority accorded to that
which occupies the topmost rung in the legal heirarchy. The three
departments of government in the discharge of the functions with which
it is entrusted have no choice but to yield obedience to its commands.
Whatever limits it imposes must be observed. Congress in the
enactment of statutes must ever be on guart lest the restrictions on its
authority, whether substantive or formal, be transcended. The
Presidency in the execution of the laws cannot ignore of disregard
what it ordains. In its task of applying the law to the facts as found in
deciding cases, the judiciary is called upon the maintain inviolate what
is decreed by the fundamental law."
This is but to give meaning to the plan and clear mandate of section 15
of the Transitory Provisions (which allows of no other interpretation)
that during the stage of transition the interim National Assembly alone
exercises the constituent power to propose amendments, upon special
call therefor. This is reinforced by the fact that the cited section does
not grant to the regular National Assembly of calling a constitutional
convention, thus expressing the will of the Convention (and
presumably of the people upon ratification) that if ever the need to
propose amendments arose during the limited period of transition, the
interim National Assembly alone would discharge the task and no
constitutional convention could be call for the purpose.
As to the alleged costs involved in convening the interim National
Assembly to propose amendments, among them its own abolition,
(P24 million annually in salaries alone for its 400 members at
P600,000.00 per annum per member, assuming that its deliberations
could last for one year), suffice it to recall this Court's pronouncement
in Tolentino (in reflecting a similar argument on the costs of holding a
plebiscite separately from the general elections for elective officials)
that "it is a matter of public knowledge that bigger amounts have been
spent or thrown to waste for many lesser objectives. ... Surely, the
amount of seventeen million pesos or even more is not too much a
price to pay for fealty and loyalty to the Constitution ... " 30 and that
"while the financial costs of a separate plebiscite may be high, it can
never be as much as the dangers involved in disregarding clear
mandate of the Constitution, no matter how laudable the objective" and
"no consideration of financial costs shall deter Us from adherence to
the requirements of the Constitution".11
10. The imposition of martial law (and "the problems of rebellion,
subversion, secession, recession, inflation and economic crisis a crisis
greater than war") 32 cited by the majority opinion as justifying the
concentration of powers in the President, and the recognition now of
188
his exercising the constituent power to propose amendments to the
Fundamental Law "as agent for and in behalf of the people"33 has no
constitutional basis.
In the post-war Emergency Powers 33*, former Chief Justice Ricardo
Paras reaffirmed for the Court the principle that emergency in itself
cannot and should not create power. In our democracy the hope and
survival of the nation lie in the wisdom and unselfish patriotism of all
officials and in their faithful 'Adherence to the Constitution".
The martial law clause of the 1973 Constitution found in Article IX,
section 12 , as stressed by the writer in his separate opinion in the
Referendum Cases,14 "is a verbatim reproduction of Article VII, section
10 (2) of the 1935 Constitution and provides for the imposition of
martial law only 'in case of invasion, resurrection or rebellion, or
imminent danger thereof, when the public safety requires it and hence
the use of the legislative power or more accurately 'military power'
under martial rule is limited to such necessary measures as will
safeguard the Republic and suppress the rebellion (or invasion)". 35
11. Article XVII, section 3 (2) of the 1973 Constitution which has
been held by the majority in the Referendum Cases to be the
recognition or warrant for the exercise of legislative power by the
President during the period of martial law is but a transitory provision.
Together with the martial law clause, they constitute but two provisions
which are not to be considered in isolation from the Constitution but as
mere integral parts thereof which must be harmonized consistently with
the entire Constitution.
As Cooley restated the rule: "effect is to be given, if possible, to the
whole instrument, and to every section and clause. If different portions
seem to conflict, the courts must harmonize them, if practicable, and
must lean in favor of a construction which will render every word
operative, rather than one which may make some words Idle and
nugatory.
This rule is applicable with special force to written constitutions, in
which the people will be presumed to have expressed themselves in
careful and measured terms, corresponding with the immense
importance of the powers delegated, leaving as little as possible to
implication. It is scarcelly conceivable that a case can arise where a
court would bye justified in declaring any portion of a written
constitution nugatory because of ambiguity. One part may qualify
another so as to restrict its operation, or apply it otherwise than the
natural construction would require if it stood by itself; but one part is not
to be allowed to defeat another, if by any reasonable construction the
two can be made to stand together. 36
The transcendental constituent power to propose and approve
amendments to the Constitution as well as set up the machinery and
prescribe the procedure for the ratification of his proposals has been
withheld from the President (Prime Minister) as sole repository of the
Executive Power, presumably in view of the immense powers already
vested in him by the Constitution but just as importantly, because by
the very nature of the constituent power, such amendments proposals
have to be prepared, deliberated and matured by a deliberative
assembly of representatives such as the interim National Assembly
and hence may not be antithetically entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before the
elevation of the l971 Constitutional Convention that the records of past
plebiscites show that the constitutional agency vested with the exercise
of the constituent power (Congress or the Constitutional Convention)
really determined the amendments to the Constitution since the
proposals were invariably ratified by the people 37 thus: "although the
people have the reserved power to ratify or reject the action taken by
the Convention, such power is not, in view of the circumstances
attending its exercise, as effective as one might otherwise think: that,
despite the requisite ratification by the people, the actual contents of
our fundamental law will really be determined by the Convention; that,
accordingly the people should exercise the greatest possible degree of
circumspection in the election of delegates thereto ... "38
12. Martial law concededly does not abrogate the Constitution
nor obliterate its constitutional boundaries and allocation of powers
among the Executive, Legislative and Judicial Departments. 39
It has thus been aptly observed that "Martial law is an emergency
regime, authorized by and subject to the Constitution. Its basic premise
is to preserve and to maintain the Republic against the dangers that
threaten it. Such premise imposes constraints and limitations. For the
martial law regime fulfills the constitutional purpose only if, by reason of
martial law measures, the Republic is preserved. If by reason of such
measures the Republic is so transformed that it is changed in its nature
and becomes a State other than republican, then martial law is a
failure; worse, martial law would have become the enemy of the
Republic rather than its defender and preserver."40
II. On the question of the Court's jurisdiction to pass upon the
constitutionality of the questioned presidential decrees: let it be
underscored that the Court has long set at rest the question.
The trail was blazed for the Court since the benchmark case of Angara
vs. Electoral Commission when Justice Jose P. Laurel echoed U.S.
Chief Justice Marshall's "climactic phrase" that "we must never forget
that it is a Constitution we are expounding" and declared the Court's
"solemn and sacred" constitutional obligation of judicial review and laid
down the doctrine that the Philippine Constitution as "a definition of the
powers of government" placed upon the judiciary the great burden of
"determining the nature, scope and extent of such powers" and
stressed that "when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other
departments . . . but only asserts the solemn and sacred obliteration
entrusted to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an
actual controversy the rights which the instrument secures and
guarantees to them".
At the same time, the Court likewise adhered to the constitutional tenet
that political questions, i.e. questions which are intended by the
Constitutional and relevant laws to be conclusively determined by the
"political", i.e. branches of government (namely, the Executive and the
Legislative) are outside the Court's jurisdiction. 41
Thus, in Gonzales,42 (by a unanimous Court) and in Tolentino43 (by
the required constitutional majority), the Court has since consistently
ruled that when proposing and approving amendments to the
Constitution, the members of Congress. acting as a constituent
assembly or the members of the Constitutional Convention elected
directly for the purpose by not have the final say on whether or not their
acts are within or beyond constitutional limits. Otherwise, they could
brush aside and set the same at naught, contrary to the basic tenet
that outs is it government of lawsom not of men, and to the rigid nature
of our Constitution. Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the Supreme Court, the power to
declare a treaty unconstitutional, despite the eminently political
character of treaty-making power".44
As amplified by former Chief Justice Concepcion in Javellana vs
Executive Secretary 45 (by a majority vote), "when the grant of power
is qualified, conditional or subject to limitations. the issue on whether or
not the prescribed qualifications or conditions have been met, or the
limitations by expected, is justiciable or non-political, the crux of the
problem being one of legality or validity of the contested act, not its
wisdom Otherwise, said qualifications, conditions and limitations-
particularly those prescribed or imposed by the Constitution would be
set at naught".
The fact that the proposed amendments are to be submitted to the
people for ratification by no means makes the question political and
non- justiciable since as stressed even in Javellana the issue of validity
of the President's proclamation of ratification of the Constitution
presented a justiciable and non-political question
Stated otherwise, the question of whether the Legislative acting as a
constituent assembly or the Constitutional Convention called fol- the
purpose, in proposing amendments to the people for ratification
followed the constitutional procedure and on the amending process is
perforce a justiciable question and does not raise a political question of
police or wisdom of the proposed amendments, which if Submitted, are
reserved for the people's decision.
The substantive question presented in the case at bar of whether the
President may legally exercise the constituent power vested in the
interim National Assembly (which has not been granted to his office)
and propose constitutional amendments is preeminently a justiciable
issue.
Justice Laurel in Angara had duly enjoined that "in times of social
disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated.
In cases of conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper allocation of
powers between the several departments and among the integral or
constituent units thereof".
To follow the easy way out by disclaiming jurisdiction over the issue as
a political question would be judicial abdication.
III. On the question of whether there is a sufficient and proper
submittal of the proposed amendments to the people: Prescinding from
the writer's view of the nullity of the questioned decree of lack of
authority on the President's part to excercise the constituent power, I
hold that the doctrine of fair and proper submission first enunciated by
a simple majority of by Justices in Gonzales and subsequently officially
adopted by the required constitutional two-thirds majority of the Court
in is controlling in the case at bar.
1. There cannot be said to be fair and proper submission of the
proposed amendments. As ruled by this Court in Tolentino where "the
proposed amendment in question is expressly saddled with
reservations which naturally impair, in great measures, its very
essence as a proposed constitutional amendment" and where "the way
the proposal is worded, read together with the reservations tacked to it
by the Convention thru Section 3 of the questioned resolution, it is too
189
much of a speculation to assume what exactly the amendment would
really amount lo in the end. All in all, as already pointed out in our
discussion of movants' first ground, if this kind of amendment is
allowed, the Philippines will appear before the world to be in the absurd
position of being the only country with a constitution containing a
provision so ephemeral no one knows until when it will bet actually in
force", there can be no proper submission.
In Tolentino a solitary amendment reducing the voting age to 18 years
was struck down by this Court which ruled that "in order that a
plebiscite for the ratification of an amendment to the Constitution may
be validly held, it must provide the voter not only sufficient time but
ample basis for an intelligent appraisal of the nature of the amendment
per se as well as its relation to the other parts of the Constitution with
which it has to form a harmonious whole," and that there was no proper
Submission wherein the people are in the dark as to frame of reference
they can base their judgment on
2. The now Chief Justice and Mr. Justice Makasiar with two
other members 46 graphically pointed out in their joint separate opinion
that the solitary question "would seem to be uncomplicated and
innocuous. But it is one of life's verities that things which appear to be
simple may turn out not to be so simple after all".47
They further expressed "essential agreement" with Mr. Justice
Conrado V. Sanchez' separate opinion in Gonzales "on the minimum
requirements that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment"
which reads thus:
... we take the view that the words 'submitted to the people for their
ratification', if construed in the light of the nature of the Constitution a
fundamental charter that is legislation direct from the people, an
expression of their sovereign will - is that it can only be amended by
the people expressing themselves according to the procedure ordained
by the Constitution. Therefore, amendments must be fairly laid before
the people for their blessing or spurning. The people are not to be
mere rubber stamps. They are not to vote blindly. They must be
afforded ample opportunity to mull over the original provisions,
compare them with the proposed amendments, and try to reach a
conclusion as the dictates of their conscience suggest, free from the
incubus of extraneous or possibly insidious influences. We believe the
word submitted' can only mean that the government, within its
maximum capabilities, should strain every effort to inform every citizen
of the provisions to be amended, and the proposed amendments and
the meaning, nature and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100 citizens or 1,000
citizens cannot be reached, then there is no submission within the
meaning of the word as intended by the framers of the Constitution.
What the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten
the people, educate them with respect to their act of ratification or
rejection. For, as we have earlier stated, one thing is submission and
another is ratification. There must be fair submission, intelligent.
consent or rejection. If with all these safeguards the people still
approve the amendment no matter how prejudicial it is to them, then so
be it. For the people decree their own fate.48
Justice Sanchez therein ended the passage with an apt citation that "
... " The great men who builded the structure of our state in this respect
had the mental vision of a good Constitution voiced by Judge Cooley,
who has said 'A good Constitution should be beyond the reach of
temporary excitement and. popular caprice or passion. It is needed for
stability and steadiness; it must yield to the thought of the people; not
to the whim of the people, or the thought evolved in excitement or hot
blood, but the sober second thought, which alone, if the government is
to be safe, can be allowed efficiency. xxx xxx xxx Changes in
government are to be feared unless the benefit is certain. As Montaign
says: All great mutations shake and disorder state. Good does not
necessarily succeed evil ;another evil may succeed and a worse'." 49
Justice Sanchez thus stated the rule that has been adopted by the
Court in Tolentino that there is no proper submission "if the people are
not sufficiently affirmed of the amendments to be voted upon, to
conscientiously deliberate thereon, to express their will in a genuine
manner. ... .." 50
3. From the complex and complicated proposed amendments
set forth in the challenged decree and the plethora of confused and
confusing clarifications reported in the daily newspapers, it is manifest
that there is no proper submission of the proposed amendments. Nine
(9) proposed constitutional amendments were officially proposed and
made known as per Presidential Decree No. 1033 dated, September
22, 1976 for submittal at the "referendum-plebiscite" called for this
coming Saturday, October 16, 1976 wherein the 15-year and under 18-
year- olds are enjoined to vote notwithstanding their lack of
qualification under Article VI of the Constitution. Former Senator Arturo
Tolentino, an acknowledged parliamentarian of the highest order, was
reported by the newspapers last October 3 to have observed that
"there is no urgency in approving the proposed amendments to the
Constitution and suggested that the question regarding charter
changes be modified instead of asking the people to vote on hurriedly
prepared amendments". He further pointed out that "apart from lacking
the parliamentary style in the body of the Constitution, they do not
indicate what particular provisions are being repealed or amended".52
As of this writing, October 11, 1976, the paper today reported his
seven-page analysis questioning among others the proposed granting
of dual legislative powers to both the President and the Batasang
Pambansa and remarking that "This dual legislative authority can give
rise to confusion and serious constitutional questions".53
Aside from the inadequacy of the limited time given for the people's
consideration of the proposed amendments, there can be no proper
submission because the proposed amendments are not in proper form
and violate the cardinal rule of amendments of written constitutions that
the specific provisions of the Constitution being repealed or amended
as well as how the specific provisions as amended would read, should
be clearly stated in careful and measured terms. There can be no
proper submission because the vagueness and ambiguity of the
proposals do not sufficiently inform the people of the amendments for,
conscientious deliberation and intelligent consent or rejection.
4. While the press and the Solicitor General at the hearing have
stated that the principal thrust of the proposals is to substitute the
interim National Assembly with an interim Batasang Pambansa, a
serious study thereof in detail would lead to the conclusion that the
whole context of the 1973 Constitution proper would be affected and
grave amendments and modifications thereof -would apparently be
made, among others, as follows:
Under Amendment No. 1, the qualification age of members of the
interim Batasang Pambansa is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the
Legislature is withheld from the interim Batasang Pambansa;
Under Amendment No 3, not withstanding the convening of the interim
Batasang Pambansa within 30 days from the election and selection of
the members (for which there is no fixed date) the incumbent President
apparently becomes a regular President and Prime Minister (not ad
interim);
Under Amendment No. 4, the disqualifications imposed on members of
the Cabinet in the Constitution such as the prohibition against the
holding of more than one office in the government including
government-owned or -controlled corporations would appear to be
eliminated, if not prescribed by the President;
Under Amendment No. 5, the President shall continue to exercise
legislative powers until martial law is lifted;
Under Amendment No. 6, there is a duality of legislative authority given
the President and the interim Batasang Pambansa as well as the
regular National Assembly, as pointed out by Senator Tolentino, with
the President continuing to exercise legislative powers in case of
"grave emergency or a threat or imminence thereof" (without definition
of terms) or when said Assemblies "fail or are unable to act adequately
on any matter for any reason that in his judgment requires immediate
action", thus radically affecting provisions of the Constitution governing
the said departments;
Under Amendment No. 7, the barangays and Sanggunians would
apparently be constitutionalized, although their functions, power and
composition may be altered by law. Referendums (which are not
authorized in the present 1973 Constitution) would also be
constitutionalized, giving rise to the possibility fraught with grave
consequences, as acknowledged at the hearing, that amendments to
the Constitution may thereafter be effected by referendum, rather than
by the rigid and strict amending process provided presently in Article
XVI of the Constitution;
Under Amendment No. 8, there is a general statement in general that
the unspecified provisions of the Constitution "not inconsistent with any
of these amendments" shall continue in full force and effect; and Under
Amendment No. 9. the incumbent President is authorized to proclaim
the ratification of the amendments by the majority of votes cast. It has
likewise been stressed by the officials concerned that the proposed
amendments come in a package and may not be voted upon
separately but on an "all or nothing" basis.
5. Whether the people can normally express their will in a
genuine manner and with due circumspection on the proposed
amendments amidst the constraints of martial law is yet another
question. That a period of free debate and discussion has to be
declared of itself shows the limitations on free debate and discussion.
The facilities for free debate and discussion over the mass media, print
and otherwise are wanting. The President himself is reported to have
observed the timidity of the media under martial law and to have
directed the press to air the views of the opposition.54
Indeed, the voice of the studentry as reflected in the editorial of the
Philippine Collegian issue of September 23, 1976 comes as a welcome
and refreshing model of conscientious deliberation, as our youth
analyzes the issues "which will affect generations yet to come" and
190
urge the people to mull over the pros and cons very carefully", as
follows:
THE REFERENDUM ISSUES
On October 16, the people may be asked to decide on two important
national issues - the creation of a new legislative body and the lifting of
martial law.
On the first issue, it is almost sure that the interim National Assembly
will not be convened, primarily because of its membership. Majority of
the members of the defunct Congress, who are mandated by the
Constitution to become members of the interim National Assembly,
have gained so widespread a notoriety that the mere mention of
Congress conjures the image of a den of thieves who are out to fool
the people most of the time. Among the three branches of government,
it was the most discredited. In fact, upon the declaration of martial law,
some people were heard to mutter that a 'regime that has finally put an
end to such congressional shenanigans could not be all that bad'.
A substitute legislative body is contemplated to help the President in
promulgating laws, and perhaps minimize the issuance of ill-drafted
decrees which necessitate constant amendments. But care should be
taken that this new legislative body would not become a mere rubber
stamp akin to those of other totalitarian countries. It should be given
real powers, otherwise we will just have another nebulous creation
having the form but lacking the substance. Already the President has
expressed the desire that among the powers he would like to have with
regard to the proposed legislative body is that of abolishing it in case
'there is a need to do so'. As to what would occasion such a need, only
the President himself can determine. This would afford the Chief
Executive almost total power over the legislature, for he could always
offer the members thereof a carrot and a stick.
On the matter of lifting martial law the people have expressed
ambivalent attitudes. Some of them, remembering the turmoil that
prevailed before the declaration of martial law, have expressed the fear
that its lifting might precipitate the revival of the abuses of the past, and
provide an occasion for evil elements to resurface with their usual
tricks. Others say that it is about time martial law was lifted since the
peace and order situation has already stabilized and the economy
seems to have been parked up.
The regime of martial law has been with us for four years now. No
doubt, martial law has initially secured some reforms for the country
The people were quite willing to participate in the new experiment,
thrilled by the novelty of it all. After the euphoria, however, the people
seem to have gone back to the old ways, with the exception that some
of our freedoms were taken away, and an authoritarian regime
established.
We must bear in mind that martial law was envisioned only to cope
with an existing national crisis, It was not meant to be availed of for a
long period of time, otherwise it would undermine our adherence to a
democratic form of government. In the words of the Constitution.
martial law shall only be declared in times of 'rebellion, insurrection,.
invasion, or imminent danger thereof, when the public safety requires
it'. Since we no longer suffer from internal disturbances of a
gargantuan scale, it is about time we seriously rethink the 'necessity' of
prolonging the martial law regime. If we justify the continuance of
martial by economic or other reasons other than the foregoing
constitutional grounds, then our faith in the Constitution might be
questioned. Even without martial law,. the incumbent Chief Executive
still holds vast powers under the constitution. After all, the gains of the
New Society can be secured without sacrificing the freedom of our
people. If the converse is true, then we might have to conclude that the
Filipinos deserve a dictatorial form of government. The referendum
results will show whether the people themselves have adopted this sad
conclusion.
The response of the people to the foregoing issues will affect
generations yet to come, so they should mull over the pros and cons
very carefully."
6. This opinion by written in the same spirit as the President's
exhortations on the first anniversary of proclamation of the 1973
Constitution that we "let the Constitution remain firm and stable" so that
it may "guide the people", and that we "remain steadfast on the rule of
law and the Constitution" as he recalled his rejection of the "exercise
(of) power that can be Identified merely with a revolutionary
government" that makes its own law, thus:
. . . Whoever he may be and whatever position he may happen to
have, whether in government or outside government, it is absolutely
necessary now that we look solemnly and perceptively into the
Constitution and try to discover for ourselves what our role is in the
successful implementation of that Constitution. With this thought,
therefore, we can agree on one thing and that is: Let all of us age, let
all of us then pass away as a pace in the development of our country.
but let the Constitution remain firm and stable and let institutions grow
in strength from day to day, from achievement to achievement, and so
long as that Constitution stands, whoever may the man in power be,
whatever may his purpose be, that Constitution will guide the people
and no man, however, powerful he may be, will dare to destroy and
wreck the foundation of such a Constitution.
These are the reasons why I personally, having proclaimed martial law,
having been often induced to exercise power that can be Identified
merely with a revolutionary government, have remained steadfast or
the rule of law and the Constitution. 54*
IV. A final word on the Court's resolution of October 5, 1976
which in reply to the Comelec query allowed by a vote of 7 to 3, judges
of all courts, after office hours, "to accept invitations to act as resource
speakers under Section 5 of Presidential Decree No. 991, as
amended, as well as to take sides in discussions and debates on the
referendum-plebiscite questions under Section 7 of the same
Decree."55
The writer with Mr. Justice Makasiar and Madame Justice Munoz
Palma had dissented from the majority resolution, with all due respect,
on the ground that the non-participation of judges in such public
discussions and debates on the referendum-plebiscite questions would
preserve the traditional non-involvement of the judiciary in public
discussions of controversial issues. This is essential for the
maintenance and enhancement of the people's faith and confidence in
the judiciary. The questions of the validity of the scheduled
referendum- plebiscite and of whether there is proper submission of
the proposed amendments were precisely subjudice by virtue of the
cases at bar.
The lifting of the traditional inhibition of judges from public discussion
and debate might blemish the image and independence of the
judiciary. Aside from the fact that the fixing of a time limit for the
acceptance of their courtesy resignations to avoid an indefinite state of
insecurity of their tenure in office still spends litigants and their relatives
and friends as well as a good sector of the public would be hesitant to
air views contrary to that of the.
Judge. Justices Makasiar and Munoz Palma who share these views
have agreed that we make them of record here, since we understand
that the permission given in the resolution is nevertheless addressed to
the personal decision and conscience of each judge, and these views
may he of some guidance to them.
BARREDO, J.,: concurring:
While I am in full agreement with the majority of my brethren that the
herein petitions should be dismissed, as in fact I vote for their
dismissal, I deem it imperative that I should state separately the
considerations that have impelled me to do so.
Perhaps, it is best that I should start by trying to disabuse the minds of
those who have doubts as to whether or not I should have taken part in
the consideration and resolution of these cases. Indeed, it would not be
befitting my position in this Highest Tribunal of the land for me to leave
unmentioned the circumstances which have given cause, I presume,
for others to feel apprehensive that my participation in these
proceedings might detract from that degree of faith in the impartiality
that the Court's judgment herein should ordinarily command. In a way,
it can be said, of course, that I am the one most responsible for such a
rather problematical situation, and it is precisely for this reason that I
have decided to begin this opinion with a discussion of why I have not
inhibited myself, trusting most confidently that what I have to say will
be taken in the same spirit of good faith, sincerity and purity of purpose
in which I am resolved to offer the same.
Plain honesty dictates that I should make of record here the pertinent
contents of the official report of the Executive Committee of the
Katipunan ng mga Sanggunian submitted to the Katipunan itself about
the proceedings held on August 14, 1976. It is stated in that public
document that:
THE ISSUE WITH REGARDS To THE CONVENING OF A
LEGISLATIVE body came out when the President express his desire to
share his powers with other people.
Aware of this, a five-man Committee members of the Philippine
Constitution Association (PHILCONSA) headed by Supreme Court
Justice Antonio Barredo proposed on July 28, the establishment of
'Sangguniang Pambansa' or 'Batasang Pambansa' which would help
the President in the performance of his legislative functions. The
proposed new body will take the place of the interim National Assembly
which is considered not practical to convene at this time considering
the constitution of its membership.
Upon learning the proposal of Justice Barredo, the country's 42,000
barangay assemblies on August 1 suggested that the people be
consulted on a proposal to create a new legislative body to replace the
interim assembly provided for by the Constitution. The suggestion of
the barangay units was made through their national association,
Pambansang Katipunan ng mga Barangay headed by Mrs. Nora Z.
Patines. She said that the people have shown in at least six instances
including in the two past referenda that they are against the convening
of the interim National Assembly. She also said that since the people
had ruled out the calling of such assembly and that they have once
191
proposed that the President create instead the Sangguniang
Pambansa or a legislative advisory body, then the proposal to create a
new legislative must necessarily be referred to the people.
The federation of Kabataang Barangay, also numbering 42,000 units
like their elder counterparts in the Katipunan ng mga Barangay also
asserted their own right to be heard on whatever plans are afoot to
convene a new legislative body.
On August 6, a meeting of the national directorate of PKB was held to
discuss matters pertaining to the stand of the PKB with regards to the
convening of a new legislative body. The stand of the PKB is to create
a legislative advisory council in place of the old assembly. Two days
after, August 8, the Kabataang Barangay held a symposium and made
a stand which is the creation of a body with full legislative powers.
A nationwide clamor for the holding of meeting in their respective
localities to discuss more intellegently the proposal to create a new
legislative body was made by various urban and rural Sangguniang
Bayans.
Numerous requests made by some members coming from 75
provincial and 61 city SB assemblies, were forwarded to the
Department of Local Government and Community Development
(DLGCD).
On August 7, Local Government Secretary, Jose A. Rono granted the
request by convening the 91 member National Executive Committee of
the Pambansang Katipunan ng mga Sanggunian on August 14 which
was held at Session Hall, Quezon City. Invited also to participate were
13 Regional Federation Presidents each coming from the PKB and the
PKKB
Actually, the extent of my active participation in the events and
deliberations that have culminated in the holding of the proposed
referendum- plebiscite on October 16, 1976, which petitioners are here
seeking to enjoin, has been more substantial and meaningful than the
above report imparts. Most importantly, aside from being probably the
first person to publicly articulate the need for the creation of an interim
legislative body to take the place of. the interim National Assembly
provided for in the Transitory Provisions of the Constitution, as
suggested in the above report, I might say that I was the one most
vehement and persistent in publicly advocating and urging the
authorities concerned to directly submit to the people in a plebiscite
whatever amendments of the Constitution might be considered
necessary for the establishment of such substitute interim legislature.
In the aforementioned session of the Executive Committee of the
Katipunan, I discourse on the indispensability of a new interim
legislative body as the initial step towards the early lifting of martial law
and on the fundamental considerations why in our present situation a
constitutional convention would be superfluous in amending the
Constitution.
Moreover, it is a matter of public knowledge that in a speech I delivered
at the Coral Ballroom of the Hilton Hotel in the evening of August 17,
1976, I denounced in no uncertain terms the plan to call a
constitutional convention. I reiterated the same views on September 7,
1976 at the initial conference called by the Comelec in the course of
the information and educational campaign it was enjoined to conduct
on the subject. And looking back at the subsequent developments up
to September 22, 1976, when the Batasang Bayan approved and the
President signed the now impugned Presidential Decree No. 1033, it is
but human for me to want to believe that to a certain extent my strong
criticisms and resolute stand against any other alternative procedure of
amending the Constitution for the purpose intended had borne fruit.
I must hasten to add at this point, however, that in a larger sense, the
initiative for all I have done, was not altogether mine alone. The truth of
the matter is that throughout the four years of this martial law
government, it has always been my faith, as a result of casual and
occasional exchanges of thought with President Marcos, that when the
appropriate time does come, the President would somehow make it
known that in his judgment, the situation has already so improved as to
permit the implementation, if gradual, of the constitutionally envisioned
evolution of our government from its present state to a parliamentary
one. Naturally, this would inevitably involve the establishment of a
legislative body to replace the abortive interim National Assembly. I
have kept tract of all the public and private pronouncements of the
President, and it was the result of my reading thereof that furnished the
immediate basis for my virtually precipitating, in one way or another,
the materialization of the forthcoming referendum-plebiscite. In other
words, in the final analysis, it was the President's own attitude on the
matter that made it opportune for me to articulate my own feelings and
Ideas as to how the nation can move meaningfully towards
normalization and to publicly raise the issues that have been ventilated
by the parties in the instant cases.
I would not be human, if I did not consider myself privileged in having
been afforded by Divine Providence the opportunity to contribute a
modest share in the formulation of the steps that should lead ultimately
to the lifting of martial law in our country. Indeed, I am certain every
true Filipino is anxiously looking forward to that eventuality. And if for
having voiced the sentiments of our people, where others would have
preferred to be comfortably silent, and if for having made public what
every Filipino must have been feeling in his heart all these years, I
should be singled out as entertaining such preconceived opinions
regarding the issues before the Court in the cases at bar as to preclude
me from taking part in their disposition, I can only say that I do not
believe there is any other Filipino in and out of the Court today who is
not equally situated as I am .
The matters that concern the Court in the instant petitions do not
involve merely the individual interests of any single person or group of
persons. Besides, the stakes in these cases affect everyone
commonly, not individually. The current of history that has passed
through the whole country in the wake of martial law has swept all of
us, sparing none, and the problem of national survival and of restoring
democratic institutions and Ideals is seeking solution in the minds of all
of us. That I have preferred to discuss publicly my own thoughts on the
matter cannot mean that my colleagues in the Court have been
indifferent and apathetic about it, for they too are Filipinos. Articulated
or not, all of us must have our own preconceived Ideas and notions in
respect to the situation that confronts the country. To be sure, our
votes and opinions in the- major political cases in the recent past
should more or less indicate our respective basic positions relevant to
the issues now before Us. Certainly, contending counsels cannot be
entirely in the dark in this regard. I feel that it must have been precisely
because of such awareness that despite my known public participation
in the discussion of the questions herein involved, none of the parties
have sought my inhibition or disqualification.
Actually, although it may be difficult for others to believe it, I have never
allowed my preconceptions and personal inclinations to affect the
objectivity needed in the resolution of any judicial question before the
Court. I feel I have always been able to appreciate, fully consider and
duly weigh arguments and points raised by all counsels, even when
they conflict with my previous views. I am never beyond being
convinced by good and substantial ratiocination. Nothing has delighted
me more than to discover that somebody else has thought of more
weighty arguments refuting my own, regardless of what or whose
interests are at stake. I would not have accepted my position in the
Court had I felt I would not be able to be above my personal
prejudices. To my mind, it is not that a judge has preconceptions that
counts, it is his capacity and readiness to absorb contrary views that
are indispensable for justice to prevail. That suspicions of prejudgment
may likely arise is unavoidable; but I have always maintained that
whatever improper factors might influence a judge will unavoidably
always appear on the face of the decision. In any event, is there better
guarantee of justice when the preconceptions of a judge are
concealed?
Withal, in point of law, I belong to the school of thought that regards
members of the Supreme Court as not covered by the general rules
relative to disqualification and inhibition of judges in cases before them.
If I have in practice actually refrained from participating in some cases,
it has not been because of any legal ground founded on said rules, but
for purely personal reasons, specially because, anyway, my vote would
not have altered the results therein.
It is my considered opinion that unlike in the cases of judges in the
lower courts, the Constitution does not envisage compulsory
disqualification or inhibition in any case by any member of the
Supreme Court. The Charter establishes a Supreme Court "composed
of a Chief Justice and fourteen Associate Justices", with the particular
qualifications therein set forth and to be appointed in the manner
therein provided. Nowhere in the Constitution is there any indication
that the legislature may designate by law instances wherein any of the
justices should not or may not take part in the resolution of any case,
much less who should take his place. Members of the Supreme Court
are definite constitutional officers; it is not within the power of the
lawmaking body to replace them even temporarily for any reason. To
put it the other way, nobody who has not been duly appointed as a
member of the Supreme Court can sit in it at any time or for any
reason. The Judicial power is vested in the Supreme Court composed
as the Constitution ordains - that power cannot be exercised by a
Supreme Court constituted otherwise. And so, when as in the instant
where, if any of the member of Court is to abstain from taking part,
there would be no quorum - and no court to render the decision - it is
the includible duty of all the incumbent justices to participate in the
proceedings and to cast their votes, considering that for the reasons
stated above, the provisions of Section 9 of the Judiciary Act do not
appear to conform with the concept of the office of Justice of the
Supreme Court contemplated in the Constitution.
The very nature of the office of Justice of the Supreme Court as the
tribunal of last resort and bulwark of the rights and liberties of all the
people demands that only one of dependable and trustworthy probity
should occupy the same. Absolute integrity, mental and otherwise,
must be by everyone who is appointed thereto. The moral character of
every member of the Court must be assumed to be such that in no
case whatsoever. regardless of the issues and the parties involved,
may it be feared that anyone's life, liberty or property, much less the
national interests, would ever be in jeopardy of being unjustly and
improperly subjected to any kind of judicial sanction. In sum, every
Justice of the Supreme Court is expected to be capable of rising above
himself in every case and of having full control of his emotions and
192
prejudices, such that with the legal training and experience he must of
necessity be adequately equipped with, it would be indubitable that his
judgment cannot be but objectively impartial, Indeed, even the
appointing power, to whom the Justices owe their positions, should
never hope to be unduly favored by any action of the Supreme Court.
All appointments to the Court are based on these considerations,
hence the ordinary rules on inhibition and disqualification do not have
to be applied to its members.
With the preliminary matter of my individual circumstances out of the
way, I shall now address myself to the grave issues submitted for Our
resolution.
-I-
In regard to the first issue as to whether the questions posed in the
petitions herein are political or justiciable, suffice it for me to reiterate
the fundamental position I took in the Martial Law cases,1 thus
As We enter the extremely delicate task of resolving the grave issues
thus thrust upon Us. We are immediately encountered by absolute
verities to guide Us all the way. The first and most important of them is
that the Constitution (Unless expressly stated otherwise, all references
to the Constitution in this discussion are to both the 1935 and 1973
charters, since, after all, the pertinent provisions are practically
Identical in both is the supreme law of the land. This means among
other things that all the powers of the government and of all its officials
from the President down to the lowest emanate from it. None of them
may exercise any power unless it can be traced thereto either textually
or by natural and logical implication. "The second is that it is settled
that the Judiciary provisions of the Constitution point to the Supreme
Court as the ultimate arbiter of all conflicts as to what the Constitution
or any part thereof means. While the other Departments may adopt
their own construction thereof, when such construction is challenged
by the proper party in an appropriate case wherein a decision would be
impossible without determining the correct construction, the Supreme
Court's word on the matter controls.
xxx xxx xxx
xxx xxx xxx
The fifth is that in the same manner that the Executive power conferred
upon the Executive by the Constitution is complete, total and unlimited,
so also, the judicial power vested in the Supreme Court and the inferior
courts, is the very whole of that power, without any limitation or
qualification.
xxx xxx xxx
xxx xxx xxx
From these incontrovertible postulates, it results, first of all, that the
main question before Us is not in reality one of jurisdiction, for there
can be no conceivable controversy, especially one involving a conflict
as to the correct construction of the Constitution, that is not
contemplated to be within the judicial authority of the courts to hear
and decide. The judicial power of the courts being unlimited and
unqualified, it extends over all situations that call for the as certainment
and protection of the rights of any party allegedly violated, even when
the alleged violator is the highest official of the land or the government
itself. It is, therefore, evidence that the Court's jurisdiction to take
cognizance of and to decide the instant petitions on their merits is
beyond challenge.
In this connection, however, it must be borne in mind that in the form of
government envisaged by the framers of the Constitution and adopted
by our people, the Court's indisputable and plenary authority to decide
does not necessarily impose upon it the duty to interpose its fiat as the
only means of settling the conflicting claims of the parties before it. It is
ingrained in the distribution of powers in the fundamental law that hand
in hand with the vesting of the judicial power upon the Court, the
Constitution has coevally conferred upon it the discretion to determine,
in consideration of the constitutional prerogatives granted to the other
Departments, when to refrain from imposing judicial solutions and
instead defer to the judgment of the latter. It is in the very nature of
republican governments that certain matters are left in the residual
power of the people themselves to resolve, either directly at the polls or
thru their elected representatives in the political Departments of the
government. And these reserved matters are easily distinguishable by
their very nature, when one studiously considers the basic functions
and responsibilities entrusted by the charter to each of the great
Departments of the government. To cite an obvious example, the
protection, defense and preservation of the state against internal or
external aggression threatening its very existence is far from being
within the ambit of judicial responsibility. The distinct role then of the
Supreme Court of being the final arbiter in the determination of
constitutional controversies does not have to be asserted in such
contemplated situations, thereby to give way to the ultimate prerogative
of the people articulated thru suffrage or thru the acts of their political
representatives they have elected for the purpose.
Indeed, these fundamental considerations are the ones that lie at the
base of what is known in American constitutional law as the political
question doctrine, which in that jurisdiction is unquestionably deemed
to be part and parcel of the rule of law, exactly like its apparently more
attractive or popular opposite, judicial activism, which is the fullest
exertion of judicial power, upon the theory that unless the courts
intervene injustice might prevail. It has been invoked and applied by
this Court in varied forms and mode of projection in several
momentous instances in the past, (Barcelona vs. Baker, 5 Phil. 87;
Severino vs. Governor-General, 16 Phil. 366; Abueva vs. Wood, 45
Phil. 612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77
Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Cabin vs. Francisco, 88
Phil. 654; Montenegro vs. Castaneda, 91 Phil. 882, Santos vs. Yatco,
55 O.G. 8641 [Minute Resolution of Nov. 6, 19591 Osmena vs.
Pendatun, Oct. 28, 1960.) and it is the main support of the stand of the
Solicitor General on the issue of jurisdiction in the cases at bar. It is
also referred to as the doctrine of judicial self-restraint or abstention.
But as the nomenclatures themselves imply, activism and self- restraint
are both subjective attitudes, not inherent imperatives. The choice of
alternatives in any particular eventuality is naturally dictated by what in
the Court's considered opinion is what the Constitution envisions
should be by in order to accomplish the objectives of government and
of nationhood. And perhaps it may be added here to avoid confusion of
concepts, that We are not losing sight of the traditional approach based
on the doctrine of separation of powers. In truth, We perceive that even
under such mode of rationalization, the existence of power is
secondary, respect for the acts of a co-ordinate, co-equal and
independent Department being the general rule, particularly when the
issue is not encroachment of delimited areas of functions but alleged
abuse of a Department's own basic prerogatives. (59 SCRA, pp. 379-
383.)
Applying the foregoing considerations to the cases at bar, I hold that
the Court has jurisdiction to pass on the merits of the various claims of
petitioners. At the same time, however, I maintain that the basic nature
of the issues herein raised requires that the Court should exercise its
constitutionally endowed prerogative to refrain from exerting its judicial
authority in the premises.
Stripped of incidental aspects, the constitutional problem that confronts
Us stems from the absence of any clear and definite express provision
in the Charter applicable to the factual milieu herein involved. The
primary issue is, to whom, under the circumstances, does the authority
to propose amendments to the Constitution property belong? To say, in
the light of Section 15 of Article XVII of the Charter, that that faculty lies
in the interim National Assembly is to beg the main question. Indeed,
there could be no occasion for doubt or debate, if it could ' only be
assumed that the interim National Assembly envisaged in Sections 1
and 2 of the same Article XVII may be convoked. But precisely, the
fundamental issue We are called upon to decide is whether or not it is
still constitutionally possible to convene that body. And relative to that
question, the inquiry centers on whether or not the political
developments since the ratification of the Constitution indicate that the
people have in effect enjoined the convening of the interim National
Assembly altogether. On this score, it is my assessment that the
results of the referenda of January 10-15, 1973, July 27-28, 1973 and
February 27, 1975 clearly show that the great majority of our people,
for reasons plainly obvious to anyone who would consider the
composition of that Assembly, what with its more than 400 members
automatically voted into it by the Constitutional Convention together
with its own members, are against its being convoked at all.
Whether or not such a manifest determination of the sentiments of the
people should be given effect without a formal amendment of the
Constitution is something that constitutional scholars may endlessly
debate on. What cannot be disputed, however, is that the government
and the nation have acquiesced to, it and have actually operated on
the basis thereof. Proclamation 1103 which, on the predicate that the
overwhelming majority of the people desire that the interim Assembly
be not convened, has ordained the suspension of its convocation, has
not been assailed either judicially or otherwise since the date of its
promulgation on January 17, 1973.
In these premises, it is consequently the task of the Court to determine
what, under these circumstances, is the constitutional relevance of the
interim National Assembly to any proposal to amend the Constitution at
this time. It is my considered opinion that in resolving that question, the
Court must have to grapple with the problem of what to do with the will
of the people, which although manifested in a manner not explicitly
provided for in the Constitution, was nevertheless official, and reliable,
and what is more important clear and unmistakable, despite the known
existence of well-meaning, if insufficiently substantial dissent. Such
being the situation, I hold that it is not proper for the Court to interpose
its judicial authority against the evident decision of the people and
should leave it to the political department of the government to devise
the ways and means of resolving the resulting problem of how to
amend the Constitution, so long as in choosing the same, the ultimate
constituent power is left to be exercised by the people themselves in a
well- ordered plebiscite as required by the fundamental law.
-2-
193
Assuming We have to inquire into the merits of the issue relative to the
constitutional authority behind the projected amendment of the Charter
in the manner provided in Presidential Decree 1033, I hold that in the
peculiar situation in which the government is today, it is not
incompatible with the Constitution for the President to propose the
subject amendments for ratification by the people in a formal plebiscite
under the supervision of the Commission on Elections. On the
contrary, in the absence of any express prohibition in the letter of the
Charter, the Presidential Decree in question is entirely consistent with
the spirit and the principles underlying the Constitution. The
correctness of this conclusion should become even more patent, when
one considers the political developments that the people have brought
about since the ratification of the Constitution on January 17,1973.
I consider it apropos at this juncture to repeat my own words in a
speech I delivered on the occasion of the celebration of Law Day on
September 18, 1975 before the members of the Philippine Constitution
Association and their guests:
To fully comprehend the constitutional situation in the Philippines
today, one has to bear in mind that, as I have mentioned earlier, the
martial law proclaimed under the 1935 Constitution overtook the
drafting of the new charter by the Constitutional Convention of 1971. It
was inevitable, therefore, that the delegates had to take into account
not only the developments under it but, most of all, its declared
objectives and what the President, as its administrator, was doing to
achieve them. In this connection, it is worthy of mention that an attempt
to adjourn the convention was roundly voted down to signify the
determination of the delegates to finish earliest their work, thereby to
accomplish the mission entrusted to them by the people to introduce
meaningful reforms in our government and society. Indeed, the
constituent labors gained rapid tempo, but in the process, the
delegates were to realize that the reforms they were formulating could
be best implemented if the martial law powers of the President were to
be allowed to subsist even after the ratification of the Constitution they
were approving. This denouement was unusual. Ordinarily, a
constitution born out of a crisis is supposed to provide all the needed
cures and can, therefore, be immediately in full force and effect after
ratification. Not so, with our 1973 Constitution, Yes, according to the
Supreme Court, 'there is no more judicial obstacle to the new
Constitution being considered in force and effect', but in truth, it is not
yet so in full. Let me explain.
To begin with, in analyzing the new Constitution, we must be careful to
distinguish between the body or main part thereof and its transitory
provisions. It is imperative to do so because the transitory provisions of
our Constitution are extraordinary in the sense that obviously they have
been designed to provide not only for the transition of our government
from the presidential form under the past charter to a parliamentary
one as envisaged in the new fundamental law, but also to
institutionalize, according to the President, the reforms introduced thru
the exercise of his martial law powers. Stated differently, the transitory
provisions, as it has turned out, has in effect established a transition
government, not, I am sure, perceived by many. It is a government that
is neither presidential nor parliamentary. It is headed, of course, by
President Marcos who not on retains all his powers under the 1935
Constitution but enjoys as well those of the President and the Prime
Minister under the new Constitution. Most importantly, he can and does
legislate alone. But to be more accurate, I should say that he legislates
alone in spite of the existence of the interim National Assembly
unequivocally ordained by the Constitution, for the simple reason that
he has suspended the convening of said assembly by issuing
Proclamation No. 1103 purportedly 'in deference to the sovereign will
of the Filipino people' expressed in the January 10-15, 1973
referendum.
Thus, we have here the unique case of a qualified ratification. The
whole Constitution was submitted for approval or disapproval of the
people, and after the votes were counted and the affirmative majority
known, we were told that the resulting ratification was subject to the
condition that the interim National Assembly evidently established in
the Constitution as the distinctive and indispensable element of a
parliamentary form of government should nevertheless be not
convened and that no elections should be held for about seven years,
with the consequence that we have now a parliamentary government
without a parliament and a republic without any regular election of its
officials. And as you can see, this phenomenon came into being not by
virtue of the Constitution but of the direct mandate of the sovereign
people expressed in a referendum. In other words, in an
unprecedented extra-constitutional way, we have established, wittingly
or unwittingly, a direct democracy through the Citizens Assemblies
created by Presidential Decree No. 86, which later on have been
transformed into barangays, a system of government proclaimed by
the President as 'a real achievement in participatory democracy.' What
I am trying to say, my friends, is that as I perceive it, what is now
known as constitutional authoritarianism means, in the final analysis,
that the fundamental source of authority of our existing government
may not be necessarily found within the four corners of the Constitution
but rather in the results of periodic referendums conducted by the
Commission on Elections in a manner well known to all of us This, as I
see it, is perhaps what the President means by saying that under the
new Constitution he has extra-ordinary powers independently of martial
law - powers sanctioned directly by the people which may not even be
read in the language of the Constitution. in brief, when we talk of the
rule of law nowadays, our frame of reference should not necessarily be
the Constitution but the outcome of referendums called from time to
time by the President. The sooner we imbibe this vital concept the
more intelligent will our perspective be in giving our support and loyalty
to the existing government. What is more, the clearer will it be that
except for the fact that all the powers of government are being
exercised by the President, we - do not in reality have a dictatorship
but an experimental type of direct democracy."
In the foregoing disquisition, I purposely made no mention of the
referendum of February 27, 1975. It is important to note, relative to the
main issue now before Us, that it was originally planned to ask the
people in that referendum whether or not they would like the interim
National Assembly to convene, but the Comelec to whom the task of
preparing the questions was assigned was prevailed upon not to
include any -such question anymore, precisely because it was the
prevalent view even among the delegates to the Convention as well as
the members of the old Congress concerned that that matter had
already been finally resolved in the previous referenda of January and
July 1973 in the sense that. the Assembly should not be convened
comparable to res adjudicata.
It is my position that as a result of the political developments since
January 17, 1973 the transitory provisions envisioning the convening of
the interim National Assembly have been rendered legally inoperative.
There is no doubt in my mind that for the President to convoke the
interim National Assembly as such would be to disregard the will of the
people - something no head of a democratic republican state like ours
should do. And I find it simply logical that the reasons that motivated
the people to enjoin the convening of the Assembly - the unusually
large and unmanageable number of its members and the controversial
morality of its automatic composition consisting of all the incumbent
elective national executive and legislative officials under the Old
Constitution who would agree to join it and the delegates themselves to
the Convention who had voted in favor of the Transitory Provisions -
apply not only to the Assembly as an ordinary legislature but perhaps
more to its being a constituent body. And to be more realistic, it is but
natural to conclude that since the people are against politicians in the
old order having anything to do with the formulation of national policies,
there must be more reasons for them to frown on said politicians taking
part in amendment of the fundamental law, specially because the
particular amendment herein involved calls for the abolition of the
interim National Assembly to which they belong and its substitution by
the Batasang Pambansa.
It is argued that in law, the qualified or conditional ratification of a
constitution is not contemplated. I disagree. It is inconsistent with the
plenary power of the people to give or withhold their assent to a
proposed Constitution to maintain that they can do so only wholly. I
cannot imagine any sound principle that can be invoked to support the
theory that the proposing authority can limit the power of ratification of
the people. As long as there are reliable means by which only partial
approval can be manifested, no cogent reason exists why the
sovereign people may not do so. True it is that no proposed
Constitution can be perfect and it may therefore be taken with the good
and the bad in it, but when there are feasible ways by which it can be
determined which portions of it, the people disapprove. it would be
stretching technicality beyond its purported office to render the final
authority - the people impotent to act according to what they deem best
suitable to their interests.
In any event, I feel it would be of no consequence to debate at length
regarding the legal feasibility of qualified ratification. Proclamation 1103
categorically declares that:
WHEREAS, fourteen million nine hundred seventy six thousand five
hundred sixty-one (14,976.561) members of all the Barangays voted
for the adoption of the proposed Constitution, as against seven
hundred forty-three thousand eight hundred sixty-nine (743,869) who
voted for its rejection; but a majority of those who approved the new
Constitution conditioned their votes on the demand that the interim
National Assembly provided in its Transitory Provisions should not be
convened.
and in consequence, the President has acted accordingly by not
convening the Assembly. The above factual premises of Proclamation
1103 is not disputed by petitioners. Actually, it is binding on the Court,
the same being a political act of a coordinate department of the
government not properly assailed as arbitrary or whimsical. At this
point, it must be emphasized in relation to the contention that a
referendum is only consultative, that Proclamation 1103, taken
together with Proclamation 1102 which proclaimed the ratification of
the Constitution, must be accorded the same legal significance as the
latter proclamation, as indeed it is part and parcel if the Act of
ratification of the Constitution, hence not only persuasive but
mandatory. In the face of the incontrovertible fact that the sovereign
people have voted against the convening of the interim National
Assembly, and faced with the problem of amending the Constitution in
order precisely to implement the people's rejection of that Assembly,
the problem of constitutional dimension that confronts Us, is how can
any such amendment be proposed for ratification by the people?
194
To start with, it may not be supposed that just because the office or
body designed by the constitutional convention to perform the
constituent function of formulating proposed amendments has been
rendered inoperative by the people themselves, the people have
thereby foreclosed the possibility of amending the Constitution no
matter how desirable or necessary this might be. In this connection, I
submit that by the very nature of the office of the Presidency in the
prevailing scheme of government we have - it being the only political
department of the government in existence - it is consistent with basic
principles of constitutionalism to acknowledge the President's authority
to perform the constituent function, there being no other entity or body
lodged with the prerogative to exercise such function.
There is another consideration that leads to the same conclusion. It is
conceded by petitioners that with the non-convening of the interim
Assembly, the legislative authority has perforce fallen into the hands of
the President, if only to avoid a complete paralysis of law-making and
resulting anarchy and chaos. It is likewise conceded that the provisions
of Section 3 (2) of Article XVII invest the President with legislative
power for the duration of the transition period. From these premises, it
is safe to conclude that in effect the President has been substituted by
the people themselves in place of the interim Assembly. Such being
the case, the President should be deemed as having been granted
also the cognate prerogative of proposing amendments to the
Constitution. In other words, the force of necessity and the cognate
nature of the act justify that the department exercising the legislative
faculty be the one to likewise perform the constituent function that was
attached to the body rendered impotent by the people's mandate.
Incidentally, I reject most vehemently the proposition that the President
may propose amendments to the Constitution in the exercise of his
martial law powers. Under any standards, such a suggestion cannot be
reconciled with the Ideal that a Constitution is the free act of the
people.
It was suggested during the oral, argument that instead of extending
his legislative powers by proposing the amendment to create a new
legislative body, the President should issue a decree providing for the
necessary apportionment of the seats in the Regular National
Assembly and call for an election of the members thereof and thus
effect the immediate normalization of the parliamentary government
envisaged in the Constitution. While indeed procedurally feasible, the
suggestion overlooks the imperative need recognized by the
constitutional convention as may be inferred from the obvious purpose
of the transitory provisions, for a period of preparation and
acquaintance by all concerned with the unfamiliar distinctive features
and practices of the parliamentary system. Accustomed as we are to
the presidential system, the Convention has seen to it that there should
be an interim parliament under the present leadership, which will take
the corresponding measures to effectuate the efficient and smooth
transition from the present system to the new one. I do not believe this
pattern set by the convention should be abandoned.
The alternative of calling a constitutional convention has also been
mentioned. But, in the first place, when it is considered that whereas,
under Section 1 (1) and (2) of Article XVI, the regular National
Assembly may call a Constitutional Convention or submit such a call
for approval of the people, Section 15 of Article XVII, in reference to
interim National Assembly, does not grant said body the prerogative of
calling a convention, one can readily appreciate that the spirit of the
Constitution does not countenance or favor the calling of a convention
during the transition, if only because such a procedure would be time
consuming, cumbersome and expensive. And when it is further noted
that the requirement as to the number of votes needed for a proposal is
only a majority, whereas it is three-fourths in respect to regular
Assembly, and, relating this point to the provision of Section 2 of Article
XVI to the effect that all ratification plebiscites must be held "not later
than three months after the approval" of the proposed amendment by
the proposing authority, the adoption of the most simple manner of
amending the charter, as that provided for in the assailed Presidential
Decree 1033 suggests itself as the one most in accord with the intent
of the fundamental law.
There is nothing strange in adopting steps not directly based on the
letter of the Constitution for the purpose of amending or changing the
same. To cite but one important precedent, as explained by Mr. Justice
Makasiar in his concurring opinion in Javellana 2, the present
Constitution of the United States was neither proposed nor ratified in
the manner ordained by the original charter of that country, the Articles
of Confederation and Perpetual Union.
In brief. if the convening and operation of the interim National
Assembly has been effectuated through a referendum-plebiscite in
January, 1973, and ratified expressly and impliedly in two subsequent
referenda, those of July, 1973 and February, 1975, why may not a duly
held plebiscite suffice for the purpose of creating a substitute for that
Assembly? It should be borne in mind that after all, as indicated in the
whereas of the impugned Presidential Decree, actually, the proposed
amendments were initiated by the barangays and sanggunian
members. In other words, in submitting the amendments for ratification,
the President is merely acting as the conduit thru whom a substantial
portion of the people, represented in the Katipunan ng Mga
Sanggunian, Barangay at Kabataang Barangay, seek the approval of
the people as a whole of the amendments in question. If all these
mean that the sovereign people have arrogated unto themselves the
functions relative to the amendment to the Constitution, I would regard
myself as totally devoid of legal standing to question it, having in mind
that the most fundamental tenet on which our whole political structure
rests is that "sovereignty resides in the people and all government
authority emanates from them."
In the light of the foregoing considerations, I hold that Presidential
Decree No. 1033 does not infringe the Constitution, if only because the
specific provision it is supposed to infringe does not exist in legal
contemplation since it was coevally made inoperative when the people
ratified the Constitution on January 17, 1973. I am fully convinced that
there is nothing in the procedure of amendment contained in said
decree that is inconsistent with the fundamental principles of
constitutionalism. On the contrary, I find that the Decree, in issue
conforms admirably with the underlying tenet of our government - the
sovereignty and plenary power of the people.
On the issue of whether or not October 16, 1976 is too proximate to
enable the people to sufficiently comprehend the issues and
intelligently vote in the referendum and plebiscite set by Presidential
Decree 1033, all I can say is that while perhaps my other colleagues
are right in holding that the period given to the people is adequate, I
would leave it to the President to consider whether or not it would be
wiser to extend the same. Just to avoid adverse comments later I wish
the President orders a postponement. But whether such postponement
is ordered or not, date of the referendum- plebiscite anywhere from
October 16, 1976 to any other later date, would be of no vital import.
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J., concurring and dissenting:
Since the validity or effectivity of the proposed amendments is to be
decided ultimately by the people in their sovereign capacity, the
question is political as the term is defined in Tanada, et al. vs. Cuenco,
et al. (103 Phil. 1051), which is a bar to any judicial inquiry, for the
reasons stated in Our opinion in Javellana, et al. vs. Executive
Secretary, et al. (L-36142); Tan, et al. vs. Executive Secretary, et al.
(L,36164); Roxas, et al. vs Executive Secretary, et al. (L-36165);
Monteclaro, etc., et al. vs' Executive Secretary, et al. (@36236); and
Ditag et al. vs. Executive Secretary, et al. (L-W283, March 31, 1973, 50
SCRA 30, 204-283). The procedure for amendment is not important
Ratification by the people is all that is indispensable to validate an
amendment. Once ratified, the method of making the proposal and the
period for submission become relevant.
The contrary view negates the very essence of a republican
democracy - that the people are sovereign - and renders meaningless
the emphatic declaration in the very first provision of Article II of the
1973 Constitution that the Philippines is a republican state, sovereignty
resides in the people and all government authority emanates from
them. It is axiomatic that sovereignty is illimitable The representatives
cannot dictate to the sovereign people. They may guide them; but they
cannot supplant their judgment, Such an opposite view likewise
distrusts the wisdom of the people as much as it despises their
intelligence. It evinces a presumptuous pretension to intellectual
superiority. There are thousands upon thousands among the citizenry,
who are not in the public service, who are more learned and better
skilled than many of their elected representatives.
Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L
40004, Jan. 31, 1975, 62 SCRA 275, 298-302) that the President as
enforcer or administrator of martial rule during the period of martial law
can legislate; and that he has the discretion as to when the convene
the interim National Assembly depending on prevailing conditions of
peace and order. In view of the fact that the interim National Assembly
has not been convoked in obedience to the desire of the people clearly
expressed in the 1973 referenda, the President therefore remains the
lone law-making authority while martial law subsists. Consequently, he
can also exercise the power of the interim National Assembly to
propose amendments to the New Constitution (Sec. 15,,Art. XVII If, as
conceded by petitioner Vicente Guzman (L-44684), former delegate to
the 1971 Constitutional Convention which drafted the 1973
Constitution. the President, during the period of martial law, can call a
constitutional convention for the purpose, admittedly a constituent
power, it stands to reason that the President can likewise legally
propose amendments to the fundamental law.
ANTONIO, J., concurring:
I
At the threshold, it is necessary to clarify what is a "political question".
It must be noted that this device has been utilized by the judiciary "to
avoid determining questions it is ill equipped to determine or that could
be settled in any event only with the effective support of the political
branches."1 According to Weston, judges, whether "personal
representatives of a truly sovereign king, or taking their seats as the
creatures of a largely popular sovereignty speaking through a written
constitution, derive their power by a delegation, which clearly or
obscurely as the case may be, deliminates and delimits their delegated
jurisdiction.* * * Judicial questions * * * are those which the sovereign
195
has set to be decided in the courts. Political questions, similarly, are
those which the sovereign has entrusted to the so-called political
departments of government or has reserved to be settled by its own
extra-government or has reserved to be settled by its own extra-
governmental action."2 Reflecting a similar concept, this Court has
defined a "political question" as a "matter which is to be exercised by
the people in their primary political capacity or that has been
specifically delegated to some other department or particular officer of
the government, with discretionary power to act."3 In other words, it
refers to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or
executive branch of government.4
In determining whether an issue falls within the political question
category, the absence of satisfactory creterion for a judicial
determination or the appropriateness of attributing finality to the action
of the political departments of government is a dominant consideration.
This was explained by Justice Brennan in Baker v. Carr,5 thus :
Prominent on the surface of any case held to involve political question
is found a textually demonstrable constitutional lack of judicially
discoverrable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or
the potentiality of embarrassment from from multifarious
pronouncements by various departments on one question. . . .
To decide whether a matter has in a measure been committed by the
Constitution to another branch of government or retained be the people
to be decided by them in their sovereign capacity, or whether that
branch exceeds whatever authority has been committed, is indeed a
delicate exercise in constitutional interpretation.
In Coleman v. Miller, 6 the United States Supreme Court held that the
efficacy of the ratification by state legislatures of a constitutional
amendment is a political question. On the question of whether the
State Legislature could constitutionally relative an amendment, after
the same had been previously rejected by it, it was held that the
ultimate authority over the question was in Congress in the exercise of
its control over the promulgation of the adoption of the amendment.
And in connection with the second question of whether the amendment
has lost its, vitality through the lapse of time, the Court held that the
question was likewise political, involving "as it does ... an appraisal of a
great variety of relevant conditions, political, social and economic,
which can hardly be said to be within the appropriate range of evidence
receivable in a court of justice and as to which it would be an
extravagant extension of juridical authority to assert judicial notice as
the basis of deciding a controversy with respect to the validity of an
amendment actually ratified. On the other hand, these conditions are
appropriate for the consideration of the political departments of the
Government. The questions they involve are essentially political and
not justiciable." '
In their concurring opinions, Justices Black, Roberts, Frankfurter and
Douglas stressed that:
The Constitution grants Congress exclusive power to control
submission off constitutional amendments. Final determination by
Congress their ratification by three-fourths of the States has taken
place 'is conclusive upon the courts.' In the exercise of that power,
Congress, of course, is governed by the Constitution. However, A
whether submission, intervening procedure for Congressional
determination of ratification conforms to the commands of the
Constitution, call for decisions by apolitical department of questions of
a t@ which this Court has frequently designated 'political.' And decision
of a 'political question' by the political department' to which the
Constitution has committed it 'conclusively binds the judges, as well as
all other officers, citizens and subjects of ... government. Proclamation
under authority of Congress that an amendment has been ratified will
carry with it a solemn assurance by the Congress that ratification has
taken place as the Constitution commands. Upon this assurance a
proclaimed amendment must be accepted as a part of the Constitution,
learning to the judiciary its traditional authority of interpretation. To the
extent that the Court's opinion in the present case even by implieding
assumes a power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and by ratification
of amendments, we are unable to agree.
Relying on this doctrine enunciated in Coleman v. Miller supra this
Court, in Mabanag v. Lopez Vitol, 7 speaking through Mr. Justice
Pedro Tuason, ruled that the process of constitutional amendment,
involving proposal and ratification, is a political question. In the Mabang
case, the petitioners sought to prevent the enforcement of a resolution
of Congress proposing the "Parity Amendment" to the Philippine
Constitution on the ground that it had not been approved by the three-
fourths vote of all the members of each house as required be Article
XV of the 1935 Constitution. It was claimed that three (3) Senators and
eight (8) members of the House of Representatives had been
suspended and that their membership was not considered in the
determination of the three- fourths %- ore In dismissing the petition on
the ground that the question of the validity of the proposal was political,
the Court stated:
"If ratification of an amendment is a political question, a proposal which
leads to ratification has to be a political question. The question to steps
complement each other in a scheme intended to achieve a single
objective. It is to be noted that amendatory process as provided in
Section I of Article XV of the Philippine Constitution 'consists of (only)
two distinct parts: proposal and ratification.' There is no logic in
attaching political character to one and withholding that character from
the other. Proposal to amend the Constitution is a highly political
function performed by the Congress in its sovereign legislative capacity
and committed to its charge by the Constitution itself. ..." (At pages 4-5,
Italics supplied.)
It is true that in Gonzales v. Comelec, 8 this Court held that "the issue
whether or not a Resolution of Congress, acting as a constituent
assembly - violates the Constitution is essentially justiciable, not
political, and hence, subject to judicial review." What was involved in
Gonzales, however, was not a proposed What was involved in
Gonzales, however, was not a proposed amendment to the
Constitution but an act of Congress,9 submitting proposed
amendments to the Constitution. Similarly, in Tolentino v. Commission
an Elections, 10 what was involved was not the validity of the proposal
to lower the voting age but rather that of the resolution of the
Constitutional Convention submitting the proposal for ratification. The
question was whether piecemeal amendments to the Constitution
could submitted to the people for approval or rejection.
II
Here, the point has been stressed that the President is acting as agent
for and in behalf of the people in proposing the amendment. there can
be no question that in the referendums of January, 1973 and in the
subsequent referendums the people had clearly and categorically
rejected the calling of the interim National Assembly. As stated in the
main opinion, the Lupang Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan ng mga Barangay,
representing 42,000 barangays, the Kabataang Barangay
organizations and the various sectoral groups had proposed the
replacement of the interim National Assembly. These barangays and
the Sanggunian assemblies are effective instrumentalities through
which the desires of the people are articulated and expressed. The
Batasang Bayan (Legislative Council), composed of nineteen (19)
cabinet members and nine (9) officials with cabinet rank, and ninety-
one (91) members of the Lupang Tagapagpaganap (Executive
Committee) of the Katipunan ng mga Sangguniang Bayani voted in
their special session to submit directly to the people in a plebiscite on
October 16, 1976 the afore-mentioned constitutional amendments.
Through the Pambansang Katipunan by Barangay and the Pampurok
ng Katipunan Sangguniang Bayan, the people have expressed their
desire not only to abolish the interim National Assembly, but to replace
it with a more representative body acceptable to them in order to effect
the desirable constitutional changes necessary to hasten the political
evolution of the government towards the parliamentary system, while at
the same time ensuring that the gains of the New Society, which are
vital to the welfare of the people, shall be safeguarded. The proposed
constitutional amendments, therefore, represent a consensus of the
people.
It would be futile to insist that the intemi National Assembly should
have been convened to propose those amendments pursuant to
Section 15 of Article XVII of the Constitution. This Court, in the case of
Aquino v. Commission or Elections,11 took judicial notice of the fact
that in the referendum of January, 1973, a majority of those who
approved the new Constitution conditioned their votes on the demand
that the interim National Assembly provided in the Transitory
Provisions should not be and the President "in deference to the
sovereign will of the Filipino people" declared that the convening of
said body shall be suspended.12 As this Court observed in the Aquino
case:
His decision to defer the initial convocation of the byiitttit National
Assembly was supported by the sovereign people at the by referendum
in January, 1973 when the people voted to postpone the convening of
the interim National Assembly until after at least seven (7) years from
the approval of the new Constitution. And the reason why the same
question was eliminated from the questions to be submitted at the
referendum on February 27, 1975, is that even some members of the
Congress and delegates of the Constitutional Convention, who are
already byjso ofitto members of the intetini National Assembly are
against such inclusion; because the issue was already bycciled in the
January, 1973 referendum by the sovereign people indicating thereby
their disenchantment with any Assembly as the former Congress failed
to institutionalize the reforms they demanded and wasted public funds
through endless debates without relieving the suffering of the general
mass of citizenry (p. 302.) The action of the President in suspending
the convening of the interim National Assembly has met the
overwhelming approval of the people in subsequent referenda.
Since it was the action by the people that gave binding force and effect
to the new Constitution, then it must be accepted as a necessary
196
consequence that their objection against the immediate convening of
the interim National Assembly must be respected as a positive
mandate of the sovereign.
In the Philippines, which is a unitary state, sovereignty "resides in the
people and all government authority emanates from them."13 The term
"People" as sovereign is comprehensive in its context. The people, as
sovereign creator of all political reality, is not merely the enfranchised
citizens but the political unity of the people. 14 It connotes, therefore, a
people which exists not only in the urgent present but in the continuum
of history. The assumption that the opinion of The People as voters
can be treated as the expression of the interests of the People as a
historic community was, to the distinguished American journalist and
public philosopher, Walter Lipunan, unwarranted.
Because of the discrepancy between The People as Voters and the
People as the corporate nation, the voters have no title to consider
themselves the proprietors of the commonwealth and to claim that their
interests are Identical to the public interest. A prevailing plurality of the
voters are not The People. The claim that they are is a bogus title
invoked to justify the usurpation of the executive power by
representative assemblies and the intimidation of public men by
demagogue politicians. In fact demagoguery can be described as the
sleight of hand by which a faction of The People as voters are invested
with the authority of The People. That is why so many crimes are
committed in the People's name 15
In Gonzales v. Comelec, supra, the Court clearly emphasized that the
power to propose amendments or to amend the Constitution is part of
the inherent power of the people as the repository of sovereignty in a
republican state. While Congress may propose amendments to the
Constitution, it acts pursuant to authority granted to it by the people
through the Constitution. Both the power to propose and the authority
to approve, therefore, inhere in the people as the bearer of the
Constitution making power.
Absent an interim National Assembly upon whom the people, through
the Constitution, have delegated the authority to exercise constituent
powers, it follows from necessity that either the people should exercise
that power themselves or through any other instrumentality they may
choose. For Law, like Nature, abhors a vacuum (natural vacuum
abhorret).
The question then is whether the President has authority to act for the
people in submitting such proposals for ratification at the plebiscite of
October 16. The political character of the question is, therefore,
particularly manifest, considering that ultimately it is the people who will
decide whether the President has such authority. It certainly involves a
matter which is to be exercised by the people in their sovereign
capacity, hence, it is essentially political, not judicial.
While it is true that the constituent power is not to be confuse with
legislative power in general because the prerogative to propose
amendments is not embraced within the context of ordinary lawmaking,
it must be noted that the proposals to be submitted for ratification in the
forthcoming referendum are, in the final analysis, actually not of the
President but directly of the people themselves, speaking through their
authorized instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this case:
... The President merely formalized the said proposals in Presidential
Decree No. 1033. It being conceded in all quarters that sovereignty
resides in the people and it having been demonstrated that their
constituent power to amend the Constitution has not been delegated
by them to any instrumentality of the Government during the present
stage of the transition period of our political development, the
conclusion is ineluctable that their exertion of that residuary power
cannot be vulnerable to any constitutional challenge as beingultravires.
Accordingly, without venturing to rule on whether or not the President
is vested with constituent power - as it does not appear necessary to
do so in the premises - the proposals here challenged, being acts of
the sovereign people no less, cannot be said to be afflicted with
unconstitutionality. A fortiori, the concomitant authority to call a
plebiscite and to appropriate funds therefor is even less vulnerable not
only because the President, in exercising said authority, has acted as a
mere ofiffet byf of the people who made the proposals, but likewise
because the said authority is legislative in nature rather than
constituent.
This is but a recognition that the People of the Philippines have the
inherent, sole and exclusive right of regulating their own government,
and of altering or abolishing their Constitution whenever it may be
necessary to their safety or happiness. There appears to be no
justification, under the existing, circumstances, for a Court to create by
implication a limitation on - the sovereign power of the people. As has
been clearly explained in a previous case:
There is nothing in the nature of the submission which should cause
the free exercise of it to be obstructed, or that could render it
dangerous to the stability of the government; because the measure
derives all its vital force from the action of the people at the ballot box,
and there can never be danger in submitting in an established form to
a free people, the proposition whether they will change their
fundamental law The means provided for the exercise of their
Sovereign right of changing their constitution should receive such a
construction as not to trammel the exercise of the right. Difficulties and
embarrassments in its exercise are in derogation of the right of free
government, which is inherent in the people; and the best security
against tumult and revolution is the free and unobstructed privilege to
the people of the State to change their constitution in the mode
prescribed by the instrument.
III
The paramount consideration that impelled Us to arrive at the
foregoing opinion is the necessity of ensuring popular control over the
constituent power. "If the people are to control the constituent power -
the power to make and change the fundamental law of the State,"
observed Wheeler," "the process of Constitutional change must not be
based too heavily upon existing agencies of government." Indeed, the
basic premise of republicanism is that the ordinary citizen, the common
man. can be trusted to determine his political destiny. Therefore, it is
time that the people should be accorded the fullest opportunity to
decide the laws that shall provide for their governance. For in the
ultimate analysis, the success of the national endeavor shall depend
on the vision, discipline and I by ininess of the moqqqtai will of every
Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to
dismiss the petitions.
Aquino, J., concur.
MUNOZ PALMA, J., dissenting:
I concur fully with the remarkably frank (so characteristic of him)
dissenting opinion of my distinguished colleague, Justice Claudio
Teehankee. If I am writing this brief statement it is only to unburden
myself of some thoughts which trouble my mind and leave my
conscience with no rest nor peace.
Generally, one who dissents from a majority view of the Court takes a
lonely and at times precarious road, the burden byeing lightened only
by the thought that in this grave task of administering justice, when
matters of conscience are at issue, one must be prepared to espouse
and embrace a rightful cause however unpopular it may be.
1. That sovereignty resides in the people and all government
authority emanates from them is a fundamental, basic principle of
government which cannot be disputed, but when the people have
opted to govern themselves under the mantle of a written Constitution,
each and every citizen, from the highest to the lowliest, has the sacred
duty to respect and obey the Character they have so ordained.
By the Constitution which they establish, they not only tie up he hands
of their official agencies, but their own hands as well; and neither the
officers of the state, nor the whole people as an aggregate body, are at
liberty to take action in opposition to this fundamental law. (Cooley's
Constitutional Limitations, 7th Ed. p. 56, Italics Our).
The afore-quoted passage from the eminent jurist and author Judge
Cooley although based on declarations of law of more than a century
ago, lays down a principle which to my mind is one of the enduring
cornerstones of the Rule of Law. it is a principle with which I have been
familiar as a student of law under the tutelage of revered Professors,
Dr. Vicente G. Sinco and Justice Jose P. Laurel, and which I pray will
prevail at all times to ensure the existence of a free, stable, and
civilized society.
The Filipino people,. wanting to ensure to themselves a democratic
republican form of government, have promulgated a Constitution
whereby the power to govern themselves has been entrusted to and
distributed among three branches of government; they have also
mandated in clear and unmistakable terms the method by which
provisions in their fundamental Charter may be amended or revised.
Having done so, the people are bound by these constitutional
limitations. For while there is no surrender or abdication of the people's
ultimate authority to amend, revise, or adopt a new Constitution, sound
reason demands that they keep themselves within the procedural
bounds of the existing fundamental law. The right of the people to
amend or change their Constitution if and when the need arises is not
to be denied, but we assert that absent a revolutionary state or
condition in the country the change must be accomplished through the
ordinary, regular and legitimate processes provided for in the
Constitution.'
I cannot subscribe therefore to the view taken by the Solicitor General
that the people, being sovereign, have the authority to amend the
Constitution even in a manner different from and contrary to that
expressly provided for in that instrument, and that the amendatory
process is intended more as a limitation of a power rather than a grant
of power to a particular agency and it should not be construed as
limiting the ultimate sovereign will of the people to decide on
amendments to the Constitution .2 Such a view will seriously
197
undermine the very existence of a constitutional government and will
permit anarchy and/or mob rule to set afoot and prevail. Was it the
Greek philosopher Plato who warned that the rule of the mob is a
prelude to the rule of the tyrant?
I would use the following excerpt from Bernas, S.J. 'The 1973
Philippine Constitution, Notes and Cases" as relevant to my point:
. . . the amendatory provisions are called a 'constitution of sovereighty'
because they define the constitutional meaning of 'sovereignty of the
people.' Popular sovereignty, as embodied in the Philippine
Constitution, is not extreme popular sovereignty. As one American
writer put it:
A constitution like the American one serves as a basic check upon the
popular will at any given time. It is the distinctive function of such
written document to classify certain things as legal fundamentals; these
fundamentals may not be changed except by the slow and
cumbersome process of amendment. The people themselves have
decided, in constitutional convention assembled, to limit themselves
ana future generations in the exercise of the sovereign power which
they would otherwise possess. And it is precisely such limitation that
enables those subject to governmental authority to appeal from the
people drunk to the people sober in time of excitement and hysteria.
The Constitution, in the neat phrase of the Iowa court, is the protector
of the people against injury by the .people. *
Truly, what need is there for providing in the Constitution a process by
which the fundamental law may be amended if, after all, the people by
themselves can set the same at naught even in times of peace when
civil authority reigns supreme? To go along with the respondents'
theory in this regard is to render written Constitutions useless or mere
"ropes of sand allowing for a government of men instead of one of
laws. For it cannot be discounted that a situation may arise where the
people are heralded to action at a point of a gun or by the fiery
eloquence of a demagogue, and where passion overpowers reason,
and mass action overthrows legal processes. History has recorded
such instances, and I can think of no better example than that of Jesus
Christ of Judea who was followed and loved by the people while curing
the sick, making the lame walk and the blind see, but shortly was
condemned by the same people turned into fanatic rabble crying out
"Crucify Him, Crucify Him" upon being incited into action by chief
priests and elders of Jerusalem. Yes, to quote once more from Judge
Cooley:
A good Constitution should be beyond the reason of temporary
excitement and popular caprice or passion. It is needed for stability and
steadiness; it must yield to the thought of the people; not to the whim of
the people, or the thought evolved in excitement or hot blood, but the
sober second thought, which alone, if the government is to be sale can
be allowed efficiency. .... Changes in government are to be feared
unless the benefit is certain." (quoted in Ellingham v. Dye, 99 N.E. 1,
15,)3
Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916;
State v. Hall, 159 N.W., 281; Opinion of Marshall, J. in State ex. rel.
Poster v. Marcus, 152 N.W., 419;
From Kochier v. Hill, Vol. 15, N.W., 609, we quote:
xxx xxx xxx
It has been said that changes in the constitution may be introduced in
disregard of its provisions; that if the majority of the people desire a
change the majority must be respected, no matter how the change may
be effected; and that the change, if revolution, is peaceful resolution. ...
We fear that the advocates of this new doctrine, in a zeal to accomplish
an end which the majority of the people desire, have looked at but one
phase of the question, and have not fully considered the terrible
consequences which would almost certainly follow a recognition of the
doctrine for which they contend. It may be that the incorporation of this
amendment in the constitution, even if the constitution has to be
broken to accomplish it, would not of itself produce any serious results.
But if it should be done by sanctioning the doctrine contended for, a
precedent would be set which would plague the state for all future time.
A Banquo's ghost would arise at our incantation which would not down
at our bidding.
xxx xxx xxx
We ought to ponder long before we adopt a doctrine so fraught with
danger to republican institutions. ...
xxx xxx xxx
Appellants' counsel cite and rely upon section 2, art. 1, of the
constitution of the staff This section is a portion of the bill of rights, and
is as follows: 'All political power is inherent in the people. Government
is instituted for the protection, security, and benefit of of the people;
and they have the right at all times to alter or reform the same,
whenever the public good may require.' Abstractly considered, there
can bye no doubt of the correctness of the propositions embraced in
this suction. These principles are older than constitutions and older
than governments. The people did not derive the rights referred to by
on the constitution. and, in their nature, thee are such that the people
cannot surrender them ... .
2. Presidential Decrees Nos. 991 and 1033 which call for a
national referendum-plebiscite on October 16, 1976 for the purpose,
among other things, of amending certain provisions of the 1973
Constitution are null and void as they contravene the express
provisions on the amending process of the 1973 Constitution laid down
in Article XVI, Section 1 (1) and Article XVII, Section 15, more
particularly the latter which applies during the present transition period.
The Opinion of Justice Teehankee discusses in detail this particular
matter.
I would just wish to stress the point that although at present there is no
by tterint National Assembly which may propose amendments to the
Constitution, the existence of a so-called "vacuum" or "hiatus" does not
justify a transgression of the constitutional provisions on the manner of
amending the fundamental law. We cannot cure one infirmity - the
existence of a "vacuum" caused by the non-convening of the interim
National Assembly - with another infirmity, that is, doing violence to the
Charter.
All great mutations shake and disorder a state. Good does not
necessarily succeed evil; another evil may succeed and a worse. (Am.
Law Rev. 1889, p. 311., quoted in Ellingham v. Dye, supra, p. 15)
Respondents contend that the calling of the referendum-plebiscite for
the purpose indicated is a step necessary to restore the state of
normalcy in the country. To my mind, the only possible measure that
will lead our country and people to a condition of normalcy is the lifting
or ending of the state of martial law. If I am constrained to make this
statement it is because so much stress was given during the hearings
of these cases on this particular point, leaving one with the impression
that for petitioners to contest the holding of the October 16 referendum-
plebiscite is for them to assume a position of blocking or installing the
lifting of martial law, which I believe is unfair to the petitioners. Frankly,
I cannot see the connection between the two. My esteemed colleagues
should pardon me therefore if I had ventured to state that the simple
solution to the simple solution to the present dilemma is the lifting of
martial law and the implementation of the constitutional provisions
which will usher in the parliamentary form of government ordained in
the Constitution, which, as proclaimed in Proclamation 1102, the
people themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then they are
bound by their act and cannot escape from the pretended unfavorable
consequences thereof, the only y being to set in motion the
constitutional machinery by which the supposed desired amendments
may properly be adopted and submitted to the electorate for
ratification. Constitutional processes are to be observed strictly, if we
have to maintain and preserve the system of government decreed
under the fundamental Charter. As said by Justice Enrique Fernando in
Mutuc vs. Commission on Elections
... The concept of the Constitution as the fundamental law, setting forth
the criterion for the validity of any public act whether proceeding from
the highest official or the lowest funcitonary, is a postulate of our
system of government. That is to manifest fealty to the rule of law, with
priority accorded to that which occupies the topmost rung in the legal
hierarchy. ... (36 SCRA, 228, 234, italics Ours)
A contrary view would lead to disastrous consequences for, in the
words of Chief Justice Cox of the Supreme Court of Indiana in
Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are not
meant to give rein to passion or thoughtless impulse but to allow the
exercise of power by the people for the general good by tistlercoitaitt
restraints of law.3 . The true question before Us is is one of power.
Does the incumbent President of the Philippines possess constituent
powers? Again, the negative answer is explained in detail in the
dissenting opinion of Justice Teehankee.
Respondents would justify the incumbent President's exercise of
constituent powers on theory that he is vested with legislative powers
as held by this Court in Benigno S. Aquino, Jr., et al. vs. Commission
on Elections, et al., L-40004, January 31, 1975. 1 wish to stress that
although in my separate opinion in said case I agreed that Section 3
(2) of the Transitory provisions grants to the incumbent President
legislative powers, I qualified my statement as follows:
.... As to, whether, or not, this unlimited legislative qqqjwwel of the
President continues by exist even after the ratification of the
Constitution is a matter which I am not ready to concede at the
moment, and which at any rate I believe is not essential in resolving
this Petition for reasons to be given later. Nonetheless, I hold the view
that the President is empowered to issue proclamations, orders,
decrees, etc. to carry out and implement the objectives of the
proclamation of martial law be it under the 1935 or 1973 Constitution,
and for the orderly and efficient functioning of the government, its
instrumentalities, and agencies. This grant of legislative power is
necessary to fill up a vacuum during the transition period when the
interim National Assembly is not yet convened and functioning, for
198
otherwise, there will be a disruption of official functions resulting in a
collapse of the government and of the existing social order. (62 SCRA,
pp. 275,347)
I believe it is not disputed that legislative power is essentially different
from constituent power; one does not encompass the other unless so
specified in the Charter, and the 1973 Constitution contains provisions
in this regard. This is well-explained in Justice Teehankee's Opinion.
The state of necessity brought about by the current political situation,
invoked by the respondents, provides no source of power to propose
amendments to the existing Constitution. Must we "bend the
Constitution to suit the law of the hour or cure its defects "by inflicting
upon it a wound which nothing can heal commit one assault after the
other "until all respect for the fundamental law is lost and the powers of
government are just what those in authority please to call them?'"5 Or
can we now ignore what this Court, speaking through Justice Barredo,
said in Tolentino vs. Comelec:
... let those who would put aside, invoking grounds at best
controversial, any mandate of the fundamental law purportedly by
order to attain some laudable objective bear in mind that someday
somehow others with purportedly more laudable objectives may take
advantages of the precedent in continue the destruction of the
Constitution, making those who laid down the precedent of justifying
deviations from the requirements of the Constitution the victims of their
own folly. 6
Respondents emphatically assert that the final word is the people's
word and that ultimately it is in the hands of the people where the final
decision rests. (Comment, pp. 18, 19, 22) Granting in gratia argument
that it is so, let it be an expression of the will of the people a normal
political situation and not under the aegis of martial rule for as I have
stated in Aquino vs. Comelec, et al., supra, a referendum (and now a
plebiscite) held under a regime of martial law can be of no far reaching
significance because it is being accomplished under an atmosphere or
climate of fear as it entails a wide area of curtailment and infringement
of individual rights, such as, human liberty, property rights, rights of
free expression and assembly, protection against unreasonable
searches and seizures, liberty of abode and of travel, and so on.
4. The other issues such as the sufficiency and proper
submission of the proposed amendments for ratification by the people
are expounded in Justice Teehankee's Opinion. I wish to stress indeed
that it is incorrect to state that the thrust of the proposed amendments
is the abolition of the interim National Assembly and its substitution
with an "interim Batasang Pambansa their in by in Proposed
amendment No. 6 will permit or allow the concentration of power in one
man - the Executive - Prime Minister or President or whatever you may
call him - for it gives him expressly (which the 1973 Constitution or the
1935 Constitution does not) legislative powers even during the
existence of the appropriate legislative body, dependent solely on the
executive's judgment on the existence of a grave emergency or a
threat or imminence thereof **
I must be forgiven if, not concerned with the present, I am haunted
however by what can happen in the future, when we shall all be gone.
Verily, this is a matter of grave concern which necessitates full, mature,
sober deliberation of the people but which they can do only in a climate
of freedom without the restraints of martial law. I close, remembering
what Claro M. Recto, President of the Constitutional Convention which
drafted the 1935 Philippine Constitution, once said: .
... Nor is it enough that our people possess a written constitution in
order that their government may be called constitutional. To be
deserving of this name, and to drive away all lanirer of anarchy as well
as of dictatorship whether by one man or a few, it is necessary that
both the government authorities and the people faithfully observe and
obey the constitution, and that the citizens be duly conversant not only
with their rights but also with their duties...7
Jose P. Laurel who served his people as Justice of the Supreme Court
of this country gave this reminder; the grave and perilous task of
halting transgressions and vindicating cherished rights is reposed
mainly oil the Judiciary and therefore let the Courts be the vestal
keepers of the purity and sanctity of our Constitution.' On the basis of
the foregoing, I vote to declare Presidential Decrees Nos. 991 and
1033 unconstitutional and enjoin the implementation thereof.
CONCEPCION JR., J., concurring:
I vote for the dismissal of the petitions.
1. The issue is not political and therefore justiciable.
The term "political question", as this Court has previously defined,
refers to those questions which, under the constitution, are to be
decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with the issues
dependent upon the wisdom, not legality, of a particular measure.1
Here, the question raised is whether the President has authority to
propose to the people amendments to the Constitution which the
petitioners claim is vested solely upon the National Assembly, the
constitutional convention called for the purpose, and the by the
National Assembly. This is not a political question since it involves the
determination of conflicting claims of authority under the constitution.
In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether
or not a Resolution of Congress, acting as a constituent assembly,
violates the Constitution, ruled that the question is essentially
justiciable, not political, and hence, subject to judicial review.
In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to
its position regarding its jurisdiction vis-a-vis the constitutionality of the
acts of Congress, acting as a constituent assembly, as well as those of
a constitutional convention called for the purpose of proposing
amendments to the constitution. Insofar as observance of constitutional
provisions on the procedure for amending the constitution is
concerned, the issue is cognizable by this Court under its powers of
judicial review.
2. As to the merits, a brief backdrop of the decision to hold the
referendum-plebiscite will help resolve the issue. It is to be noted that
under the 1973 Constitution, an interim National Assembly was
organized to bring about an orderly transition from the presidential to
the parliamentary system of government.' The people, however,
probably distrustful of the members who are old time politicians and
constitutional delegates who had voted themselves by to membership
in the interim National Assembly, voted against the convening of the
said interim assembly for at least seven years thus creating a political
stalemate and a consequent delay' in the transformation of the
government into the parliamentary system. To resolve the impasse, the
President, at the instance of the barangays and sanggunian
assemblies through their duly authorized instrumentalities who
recommended a study of the feasibility of abolishing and replacing the
by interim National Assembly with another interim body truly
representative of the people in a reformed society, issued Presidential
Decree No. 991, on September 2, 1976, calling for a national
referendum on October -16, 1976 to ascertain the wishes of the people
as to the ways and means that may be available to attain the objective;
providing for a period of educational and information campaign on the
issues; and establishing the mechanics and manner for holding
thereof. But the people, through their barangays, addressed
resolutions to the Batasang Bayan, expressing their desire to have the
constitution amended, thus prompting the President to issue
Presidential Decree No. 1033, stating the questions to @ submitted to
the people in the referendum-plebiscite on October 16,1976.
As will be seen, the authority to amend the Constitution was removed
from the interim National Assembly and transferred to the seat of
sovereignty itself. Since the Constitution emanates from the people
who are the repository of all political powers, their authority to amend
the Constitution through the means they have adopted, aside from
those mentioned in the Constitution, cannot be gainsaid. Not much
reflection is also needed to show that the President did not exercise his
martial law legislative powers when he proposed the amendments to
the Constitution. He was merely acting as an instrument to carry out
the will of the people. Neither could he convene the interim National
Assembly, as suggested by the petitioners, without doing violence to
the people's will expressed overwhelmingly when they decided against
convening the interim assembly for at least seven years.
3. The period granted to the people to consider the proposed
amendments is reasonably long and enough to afford intelligent
discussion of the issues to be voted upon. PD 991 has required the
barangays to hold assemblies or meetings to discuss and debate on
the referendum questions, which in fact they have been doing.
Considering that the proposed amendments came from the
representatives of the people themselves, the people must have
already formed a decision by this time on what stand to take on the
proposed amendments come the day for the plebiscite. Besides, the
Constitution itself requires the holding of a plebiscite for the ratification
of an amendment not later than three (3) months after the approval of
such amendment or revision but without setting a definite period within
which such plebiscite shall not be held. From this I can only conclude
that the framers of the Constitution desired that only a short period
shall elapse from the approval of such amendment or resolution to its
ratification by the people.
[G.R. No. 127325. March 19, 1997]
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA and
MARIA ISABEL ONGPIN, petitioners, vs. COMMISSION ON
ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN
PEDROSA, in their capacities as founding members of the
Peoples Initiative for Reforms, Modernization and Action (PIRMA),
respondents, SENATOR RAUL S. ROCO, DEMOKRASYA-
IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD INTEGRITY AND
NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE
PHILIPPINES (IBP) and LABAN NG DEMOKRATIKONG PILIPINO
(LABAN), petitioners-intervenors.
DECISION
199
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for
prohibition under Rule 65 of the Rules of Court is the right of the
people to directly propose amendments to the Constitution through the
system of initiative under Section 2 of Article XVII of the 1987
Constitution. Undoubtedly, this demands special attention, as this
system of initiative was unknown to the people of this country, except
perhaps to a few scholars, before the drafting of the 1987 Constitution.
The 1986 Constitutional Commission itself, through the original
proponent[1] and the main sponsor[2] of the proposed Article on
Amendments or Revision of the Constitution, characterized this system
as innovative.[3] Indeed it is, for both under the 1935 and 1973
Constitutions, only two methods of proposing amendments to, or
revision of, the Constitution were recognized, viz., (1) by Congress
upon a vote of three-fourths of all its members and (2) by a
constitutional convention.[4] For this and the other reasons hereafter
discussed, we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed
with public respondent Commission on Elections (hereafter,
COMELEC) a Petition to Amend the Constitution, to Lift Term Limits of
Elective Officials, by Peoples Initiative (hereafter, Delfin Petition)[5]
wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the
country;
2. Causing the necessary publications of said Order and the attached
Petition for Initiative on the 1987 Constitution, in newspapers of
general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the
Philippines, to assist Petitioners and volunteers, in establishing signing
stations at the time and on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the
Movement for Peoples Initiative,[6] a group of citizens desirous to avail
of the system intended to institutionalize people power; that he and the
members of the Movement and other volunteers intend to exercise the
power to directly propose amendments to the Constitution granted
under Section 2, Article XVII of the Constitution; that the exercise of
that power shall be conducted in proceedings under the control and
supervision of the COMELEC; that, as required in COMELEC
Resolution No. 2300, signature stations shall be established all over
the country, with the assistance of municipal election registrars, who
shall verify the signatures affixed by individual signatories; that before
the Movement and other volunteers can gather signatures, it is
necessary that the time and dates to be designated for the purpose be
first fixed in an order to be issued by the COMELEC; and that to
adequately inform the people of the electoral process involved, it is
likewise necessary that the said order, as well as the Petition on which
the signatures shall be affixed, be published in newspapers of general
and local circulation, under the control and supervision of the
COMELEC.
The Delfin Petition further alleged that the provisions sought to be
amended are Sections 4 and 7 of Article VI,[7] Section 4 of Article
VII,[8] and Section 8 of Article X[9] of the Constitution. Attached to the
petition is a copy of a Petition for Initiative on the 1987 Constitution[10]
embodying the proposed amendments which consist in the deletion
from the aforecited sections of the provisions concerning term limits,
and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL
ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE
PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF
ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987
PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted
to the people, and after it is signed by at least twelve per cent of the
total number of registered voters in the country it will be formally filed
with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the
number UND 96-037 (INITIATIVE), the COMELEC, through its
Chairman, issued an Order[11] (a) directing Delfin to cause the
publication of the petition, together with the attached Petition for
Initiative on the 1987 Constitution (including the proposal, proposed
constitutional amendment, and the signature form), and the notice of
hearing in three (3) daily newspapers of general circulation at his own
expense not later than 9 December 1996; and (b) setting the case for
hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the
following appeared: Delfin and Atty. Pete Q. Quadra; representatives of
the Peoples Initiative for Reforms, Modernization and Action (PIRMA);
intervenor-oppositor Senator Raul S. Roco, together with his two other
lawyers; and representatives of, or counsel for, the Integrated Bar of
the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon
(DIK), Public Interest Law Center, and Laban ng Demokratikong
Pilipino (LABAN).[12] Senator Roco, on that same day, filed a Motion
to Dismiss the Delfin Petition on the ground that it is not the initiatory
petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the
oppositors to file their memoranda and/or oppositions/memoranda
within five days.[13]
On 18 December 1996, the petitioners herein -- Senator Miriam
Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin -- filed
this special civil action for prohibition raising the following arguments:
(1) The constitutional provision on peoples initiative to amend the
Constitution can only be implemented by law to be passed by
Congress. No such law has been passed; in fact, Senate Bill No. 1290
entitled An Act Prescribing and Regulating Constitutional Amendments
by Peoples Initiative, which petitioner Senator Santiago filed on 24
November 1995, is still pending before the Senate Committee on
Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative,
namely, initiative on the Constitution, on statutes, and on local
legislation. However, it failed to provide any subtitle on initiative on the
Constitution, unlike in the other modes of initiative, which are
specifically provided for in Subtitle II and Subtitle III. This deliberate
omission indicates that the matter of peoples initiative to amend the
Constitution was left to some future law. Former Senator Arturo
Tolentino stressed this deficiency in the law in his privilege speech
delivered before the Senate in 1994: There is not a single word in that
law which can be considered as implementing [the provision on
constitutional initiative]. Such implementing provisions have been
obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after
publication in print media. This indicates that the Act covers only laws
and not constitutional amendments because the latter take effect only
upon ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to
govern the conduct of initiative on the Constitution and initiative and
referendum on national and local laws, is ultra vires insofar as initiative
on amendments to the Constitution is concerned, since the COMELEC
has no power to provide rules and regulations for the exercise of the
right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.
(5)The peoples initiative is limited to amendments to the Constitution,
not to revision thereof. Extending or lifting of term limits constitutes a
revision and is, therefore, outside the power of the peoples initiative.
(6) Finally, Congress has not yet appropriated funds for peoples
initiative; neither the COMELEC nor any other government department,
agency, or office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition,
the petitioners allege that in the event the COMELEC grants the Delfin
Petition, the peoples initiative spearheaded by PIRMA would entail
expenses to the national treasury for general re-registration of voters
amounting to at least P180 million, not to mention the millions of
additional pesos in expenses which would be incurred in the conduct of
the initiative itself. Hence, the transcendental importance to the public
and the nation of the issues raised demands that this petition for
prohibition be settled promptly and definitely, brushing aside
technicalities of procedure and calling for the admission of a taxpayers
and legislators suit.[14] Besides, there is no other plain, speedy, and
adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to
comment on the petition within a non-extendible period of ten days
from notice; and (b) issued a temporary restraining order, effective
immediately and continuing until further orders, enjoining public
respondent COMELEC from proceeding with the Delfin Petition, and
private respondents Alberto and Carmen Pedrosa from conducting a
signature drive for peoples initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed
their Comment[15] on the petition. They argue therein that:
1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE
NATIONAL TREASURY FOR GENERAL REGISTRATION OF
VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00) IF THE COMELEC GRANTS
THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE
COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE
NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE
PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE
SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF
RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR
PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO
THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM
OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE
200
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND
HIS VOLUNTEERS IS P2,571, 200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON
THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY
BOUND TO SUPERVISE CLOSELY PURSUANT TO ITS INITIATORY
JURISDICTION UPHELD BY THE HONORABLE COURT IN ITS
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC
BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO.
125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE
ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE
INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION.
SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290 IS A
DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP.
ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON
JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD
BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
HONORABLE COURT SAID: THE COMMISSION ON ELECTIONS
CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY
PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL
AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS.
6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO.
1290 CONTAINS A PROVISION DELEGATING TO THE COMELEC
THE POWER TO PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
PURPOSES OF THIS ACT. (SEC. 12, S.B. NO. 1290, ENCLOSED AS
ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF
ELECTIVE OFFICIALS PROVIDED UNDER THE 1987
CONSTITUTION IS NOT A REVISION OF THE CONSTITUTION. IT IS
ONLY AN AMENDMENT. AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE
CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION
OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT
EXTENT IT SHOULD BE ALTERED. (PP. 412-413, 2ND. ED. 1992,
1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own
behalf a Comment[16] which starts off with an assertion that the instant
petition is a knee-jerk reaction to a draft Petition for Initiative on the
1987 Constitution ... which is not formally filed yet. What he filed on 6
December 1996 was an Initiatory Pleading or Initiatory Petition, which
was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under
COMELEC power and function. On the substantive allegations of the
petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No.
6735, which governs the conduct of initiative to amend the
Constitution. The absence therein of a subtitle for such initiative is not
fatal, since subtitles are not requirements for the validity or sufficiency
of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the
proposition in an initiative to amend the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective as of
the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is
contradicted by (a) Section 2, Article IX-C of the Constitution, which
grants the COMELEC the power to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere
amendment to, the Constitution because it seeks to alter only a few
specific provisions of the Constitution, or more specifically, only those
which lay term limits. It does not seek to reexamine or overhaul the
entire document.
As to the public expenditures for registration of voters, Delfin considers
petitioners estimate of P180 million as unreliable, for only the
COMELEC can give the exact figure. Besides, if there will be a
plebiscite it will be simultaneous with the 1997 Barangay Elections. In
any event, fund requirements for initiative will be a priority government
expense because it will be for the exercise of the sovereign power of
the people.
In the Comment[17] for the public respondent COMELEC, filed also on
2 January 1997, the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, peoples initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms,
recognizes, and guarantees that power; and its Section 3, which
enumerates the three systems of initiative, includes initiative on the
Constitution and defines the same as the power to propose
amendments to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary
in R.A. No. 6735 because, being national in scope, that system of
initiative is deemed included in the subtitle on National Initiative and
Referendum; and Senator Tolentino simply overlooked pertinent
provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof
that R.A. No. 6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere
amendment to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section
20 of R.A. No. 6735 and under the Omnibus Election Code. The rule-
making power of the COMELEC to implement the provisions of R.A.
No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan
Authority vs. COMELEC .
On 14 January 1997, this Court (a) confirmed nunc pro tunc the
temporary restraining order; (b) noted the aforementioned Comments
and the Motion to Lift Temporary Restraining Order filed by private
respondents through Atty. Quadra, as well as the latters Manifestation
stating that he is the counsel for private respondents Alberto and
Carmen Pedrosa only and the Comment he filed was for the Pedrosas;
and (c) granted the Motion for Intervention filed on 6 January 1997 by
Senator Raul Roco and allowed him to file his Petition in Intervention
not later than 20 January 1997; and (d) set the case for hearing on 23
January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon
(DIK) and the Movement of Attorneys for Brotherhood Integrity and
Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to
the motion was their Petition in Intervention, which was later replaced
by an Amended Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a
revision of, the Constitution because, in the words of Fr. Joaquin
Bernas, S.J.,[18] it would involve a change from a political philosophy
that rejects unlimited tenure to one that accepts unlimited tenure; and
although the change might appear to be an isolated one, it can affect
other provisions, such as, on synchronization of elections and on the
State policy of guaranteeing equal access to opportunities for public
service and prohibiting political dynasties.[19] A revision cannot be
done by initiative which, by express provision of Section 2 of Article
XVII of the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits
provided for all other national and local elective officials are based on
the philosophy of governance, to open up the political arena to as
many as there are Filipinos qualified to handle the demands of
leadership, to break the concentration of political and economic powers
in the hands of a few, and to promote effective proper empowerment
for participation in policy and decision-making for the common good;
hence, to remove the term limits is to negate and nullify the noble
vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative,
particularly in a conflict-of-interest situation. Initiative is intended as a
fallback position that may be availed of by the people only if they are
dissatisfied with the performance of their elective officials, but not as a
premium for good performance.[20]
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the
enabling law that implements the peoples initiative on amendments to
the Constitution. It fails to state (a) the proper parties who may file the
petition, (b) the appropriate agency before whom the petition is to be
filed, (c) the contents of the petition, (d) the publication of the same, (e)
the ways and means of gathering the signatures of the voters
nationwide and 3% per legislative district, (f) the proper parties who
may oppose or question the veracity of the signatures, (g) the role of
the COMELEC in the verification of the signatures and the sufficiency
of the petition, (h) the appeal from any decision of the COMELEC, (I)
the holding of a plebiscite, and (g) the appropriation of funds for such
peoples initiative. Accordingly, there being no enabling law, the
COMELEC has no jurisdiction to hear Delfins petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by
COMELEC Resolution No. 2300, since the COMELEC is without
authority to legislate the procedure for a peoples initiative under
Section 2 of Article XVII of the Constitution. That function exclusively
pertains to Congress. Section 20 of R.A. No. 6735 does not constitute
a legal basis for the Resolution, as the former does not set a sufficient
standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention.[21] He avers that R.A. No. 6735 is the enabling law that
201
implements the peoples right to initiate constitutional amendments.
This law is a consolidation of Senate Bill No. 17 and House Bill No.
21505; he co-authored the House Bill and even delivered a
sponsorship speech thereon. He likewise submits that the COMELEC
was empowered under Section 20 of that law to promulgate
COMELEC Resolution No. 2300. Nevertheless, he contends that the
respondent Commission is without jurisdiction to take cognizance of
the Delfin Petition and to order its publication because the said petition
is not the initiatory pleading contemplated under the Constitution,
Republic Act No. 6735, and COMELEC Resolution No. 2300. What
vests jurisdiction upon the COMELEC in an initiative on the
Constitution is the filing of a petition for initiative which is signed by the
required number of registered voters. He also submits that the
proponents of a constitutional amendment cannot avail of the authority
and resources of the COMELEC to assist them is securing the required
number of signatures, as the COMELECs role in an initiative on the
Constitution is limited to the determination of the sufficiency of the
initiative petition and the call and supervision of a plebiscite, if
warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it
attached a Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under
Section 2, Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required
implementing law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does
not have the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which
can be proposed only by Congress or a constitutional convention.[22]
On 21 January 1997, we promulgated a Resolution (a) granting the
Motions for Intervention filed by the DIK and MABINI and by the IBP,
as well as the Motion for Leave to Intervene filed by LABAN; (b)
admitting the Amended Petition in Intervention of DIK and MABINI, and
the Petitions in Intervention of Senator Roco and of the IBP; (c)
requiring the respondents to file within a nonextendible period of five
days their Consolidated Comments on the aforesaid Petitions in
Intervention; and (d) requiring LABAN to file its Petition in Intervention
within a nonextendible period of three days from notice, and the
respondents to comment thereon within a nonextendible period of five
days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on
the following pivotal issues, which the Court formulated in light of the
allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of
Initiative and Referendum and Appropriating Funds Therefor, was
intended to include or cover initiative on amendments to the
Constitution; and if so, whether the Act, as worded, adequately covers
such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re:
Rules and Regulations Governing the Conduct of Initiative on the
Constitution, and Initiative and Referendum on National and Local
Laws) regarding the conduct of initiative on amendments to the
Constitution is valid, considering the absence in the law of specific
provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local
officials, as proposed in the draft Petition for Initiative on the 1987
Constitution, would constitute a revision of, or an amendment to, the
Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction
over, a petition solely intended to obtain an order (a) fixing the time and
dates for signature gathering; (b) instructing municipal election officers
to assist Delfin's movement and volunteers in establishing signature
stations; and (c) directing or causing the publication of, inter alia, the
unsigned proposed Petition for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the
petition when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit
simultaneously their respective memoranda within twenty days and
requested intervenor Senator Roco to submit copies of the
deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it
adopts the allegations and arguments in the main Petition. It further
submits that the COMELEC should have dismissed the Delfin Petition
for failure to state a sufficient cause of action and that the
Commissions failure or refusal to do so constituted grave abuse of
discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of
both the Journal and the Record of the House of Representatives
relating to the deliberations of House Bill No. 21505, as well as the
transcripts of stenographic notes on the proceedings of the Bicameral
Conference Committee, Committee on Suffrage and Electoral
Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No.
17.
Private respondents Alberto and Carmen Pedrosa filed their
Consolidated Comments on the Petitions in Intervention of Senator
Roco, DIK and MABINI, and IBP.[23] The parties thereafter filed, in due
time, their separate memoranda.[24]
As we stated in the beginning, we resolved to give due course to this
special civil action.
For a more logical discussion of the formulated issues, we shall first
take up the fifth issue which appears to pose a prejudicial procedural
question.
I SEC. 2. Amendments to this Constitution may likewise be directly
THE INSTANT PETITION IS VIABLE DESPITE THE
PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
Except for the petitioners and intervenor Roco, the parties paid no
serious attention to the fifth issue, i.e., whether it is proper for this
Court to take cognizance of this special civil action when there is a
pending case before the COMELEC. The petitioners provide an
affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition
filed by private respondent Delfin. This being so, it becomes imperative
to stop the Comelec from proceeding any further, and under the Rules
of Court, Rule 65, Section 2, a petition for prohibition is the proper
remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of
a court of superior jurisdiction and directed to an inferior court, for the
purpose of preventing the inferior tribunal from usurping a jurisdiction
with which it is not legally vested. (People v. Vera, supra., p. 84). In this
case the writ is an urgent necessity, in view of the highly divisive and
adverse environmental consequences on the body politic of the
questioned Comelec order. The consequent climate of legal confusion
and political instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional law is
threatened by the political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the
Constitution.[25]
It must be recalled that intervenor Roco filed with the COMELEC a
motion to dismiss the Delfin Petition on the ground that the COMELEC
has no jurisdiction or authority to entertain the petition.[26] The
COMELEC made no ruling thereon evidently because after having
heard the arguments of Delfin and the oppositors at the hearing on 12
December 1996, it required them to submit within five days their
memoranda or oppositions/memoranda.[27] Earlier, or specifically on 6
December 1996, it practically gave due course to the Delfin Petition by
ordering Delfin to cause the publication of the petition, together with the
attached Petition for Initiative, the signature form, and the notice of
hearing; and by setting the case for hearing. The COMELECs failure to
act on Rocos motion to dismiss and its insistence to hold on to the
petition rendered ripe and viable the instant petition under Section 2 of
Rule 65 of the Rules of Court, which provides:
SEC. 2. Petition for prohibition. -- Where the proceedings of any
tribunal, corporation, board, or person, whether exercising functions
judicial or ministerial, are without or in excess of its or his jurisdiction,
or with grave abuse of discretion, and there is no appeal or any other
plain, speedy and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court
alleging the facts with certainty and praying that judgment be rendered
commanding the defendant to desist from further proceedings in the
action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC
has no jurisdiction over the Delfin Petition because the said petition is
not supported by the required minimum number of signatures of
registered voters. LABAN also asserts that the COMELEC gravely
abused its discretion in refusing to dismiss the Delfin Petition, which
does not contain the required number of signatures. In light of these
claims, the instant case may likewise be treated as a special civil
action for certiorari under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his
Memorandum, this Court may brush aside technicalities of procedure
in cases of transcendental importance. As we stated in Kilosbayan, Inc.
v. Guingona, Jr.:[28]
202
A partys standing before this Court is a procedural technicality which it
may, in the exercise of its discretion, set aside in view of the
importance of issues raised. In the landmark Emergency Powers
Cases, this Court brushed aside this technicality because the
transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM
OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of
this right.
This provision is not self-executory. In his book,[29] Joaquin Bernas, a
member of the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus,
although this mode of amending the Constitution is a mode of
amendment which bypasses congressional action, in the last analysis it
still is dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments
to the Constitution through the system of initiative would remain
entombed in the cold niche of the Constitution until Congress provides
for its implementation. Stated otherwise, while the Constitution has
recognized or granted that right, the people cannot exercise it if
Congress, for whatever reason, does not provide for its
implementation.
This system of initiative was originally included in Section 1 of the draft
Article on Amendment or Revision proposed by the Committee on
Amendments and Transitory Provisions of the 1986 Constitutional
Commission in its Committee Report No. 7 (Proposed Resolution No.
332).[30] That section reads as follows:
SECTION 1. Any amendment to, or revision of, this Constitution may
be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its
members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in
Article ____ Section ____ of the Constitution.[31]
After several interpellations, but before the period of amendments, the
Committee submitted a new formulation of the concept of initiative
which it denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call
attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete
Committee Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by Section 2 of
the complete committee report. With the permission of the Members,
may I quote Section 2:
The people may, after five years from the date of the last plebiscite
held, directly propose amendments to this Constitution thru initiative
upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report
No. 7.[32]
The interpellations on Section 2 showed that the details for carrying out
Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory
questions.
First, on Section 1 on the matter of initiative upon petition of at least 10
percent, there are no details in the provision on how to carry this out.
Do we understand, therefore, that we are leaving this matter to the
legislature?

MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long
as the legislature does not pass the necessary implementing law on
this, this will not operate?
MR. SUAREZ. That matter was also taken up during the committee
hearing, especially with respect to the budget appropriations which
would have to be legislated so that the plebiscite could be called. We
deemed it best that this matter be left to the legislature. The Gentleman
is right. In any event, as envisioned, no amendment through the power
of initiative can be called until after five years from the date of the
ratification of this Constitution. Therefore, the first amendment that
could be proposed through the exercise of this initiative power would
be after five years. It is reasonably expected that within that five-year
period, the National Assembly can come up with the appropriate rules
governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature - the details on
how this is to be carried out - is it possible that, in effect, what will be
presented to the people for ratification is the work of the legislature
rather than of the people? Does this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even
the legislature itself as a body could propose that amendment, maybe
individually or collectively, if it fails to muster the three-fourths vote in
order to constitute itself as a constituent assembly and submit that
proposal to the people for ratification through the process of an
initiative.
xxx
MS. AQUINO. Do I understand from the sponsor that the intention in
the proposal is to vest constituent power in the people to amend the
Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal
in terms of institutionalizing popular participation in the drafting of the
Constitution or in the amendment thereof, but I would have a lot of
difficulties in terms of accepting the draft of Section 2, as written.
Would the sponsor agree with me that in the hierarchy of legal
mandate, constituent power has primacy over all other legal
mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the
hierarchy of legal values, the Constitution is source of all legal
mandates and that therefore we require a great deal of circumspection
in the drafting and in the amendments of the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of
constituent power we have a separate article in the constitution that
would specifically cover the process and the modes of amending the
Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are
drafted now, to again concede to the legislature the process or the
requirement of determining the mechanics of amending the
Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well be
placed in the hands of the National Assembly, not unless we can
incorporate into this provision the mechanics that would adequately
cover all the conceivable situations.[33]
It was made clear during the interpellations that the aforementioned
Section 2 is limited to proposals to AMEND -- not to REVISE -- the
Constitution; thus:
MR. SUAREZ. ... This proposal was suggested on the theory that this
matter of initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional modes
of amending the Constitution as embodied in Section 1. The committee
members felt that this system of initiative should not extend to the
revision of the entire Constitution, so we removed it from the operation
of Section 1 of the proposed Article on Amendment or Revision.[34]
xxx
MS. AQUINO. In which case, I am seriously bothered by providing this
process of initiative as a separate section in the Article on Amendment.
Would the sponsor be amenable to accepting an amendment in terms
of realigning Section 2 as another subparagraph (c) of Section 1,
203
instead of setting it up as another separate section as if it were a self-
executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a
while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which contemplates
a total overhaul of the Constitution. That was the sense that was
conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to include
the process of revision; whereas the process of initiation to amend,
which is given to the public, would only apply to amendments?
MR. SUAREZ.That is right. Those were the terms envisioned in the
Committee.[35]
Amendments to the proposed Section 2 were thereafter introduced by
then Commissioner Hilario G. Davide, Jr., which the Committee
accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the
entire Section 2 with the following:
xxx
MR. DAVIDE. Madam President, I have modified the proposed
amendment after taking into account the modifications submitted by
the sponsor himself and the honorable Commissioners Guingona,
Monsod, Rama, Ople, de los Reyes and Romulo. The modified
amendment in substitution of the proposed Section 2 will now read as
follows: "SECTION 2. -- AMENDMENTS TO THIS CONSTITUTION
MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS,
OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed
amendment is reflective of the sense contained in Section 2 of our
completed Committee Report No. 7, we accept the proposed
amendment.[36]
The interpellations which ensued on the proposed modified
amendment to Section 2 clearly showed that it was a legislative act
which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it
possible for the legislature to set forth certain procedures to carry out
the initiative...?
MR. DAVIDE. It can.
xxx
MR. ROMULO. But the Commissioners amendment does not prevent
the legislature from asking another body to set the proposition in
proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the
implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of
the requirement.
MR. ROMULO. But the procedures, including the determination of the
proper form for submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to
initiate. In other words, none of the procedures to be proposed by the
legislative body must diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures
which I have discussed be legislated?
MR. DAVIDE. Yes.[37]
Commissioner Davide also reaffirmed that his modified amendment
strictly confines initiative to AMENDMENTS to -- NOT REVISION of --
the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendment." Does it not cover the
word "revision" as defined by Commissioner Padilla when he made the
distinction between the words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision"
should be covered by Section 1. So insofar as initiative is concerned, it
can only relate to "amendments" not "revision."[38]
Commissioner Davide further emphasized that the process of
proposing amendments through initiative must be more rigorous and
difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal,
what is involved is an amendment to the Constitution. To amend a
Constitution would ordinarily require a proposal by the National
Assembly by a vote of three-fourths; and to call a constitutional
convention would require a higher number. Moreover, just to submit
the issue of calling a constitutional convention, a majority of the
National Assembly is required, the import being that the process of
amendment must be made more rigorous and difficult than probably
initiating an ordinary legislation or putting an end to a law proposed by
the National Assembly by way of a referendum. I cannot agree to
reducing the requirement approved by the Committee on the
Legislative because it would require another voting by the Committee,
and the voting as precisely based on a requirement of 10 percent.
Perhaps, I might present such a proposal, by way of an amendment,
when the Commission shall take up the Article on the Legislative or on
the National Assembly on plenary sessions.[39]
The Davide modified amendments to Section 2 were subjected to
amendments, and the final version, which the Commission approved
by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended,
reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT
OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT
LEAST THREE PERCENT OF THE REGISTERED VOTERS
THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN
ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.[40]
The entire proposed Article on Amendments or Revisions was
approved on second reading on 9 July 1986.[41] Thereafter, upon his
motion for reconsideration, Commissioner Gascon was allowed to
introduce an amendment to Section 2 which, nevertheless, was
withdrawn. In view thereof, the Article was again approved on Second
and Third Readings on 1 August 1986.[42]
However, the Committee on Style recommended that the approved
Section 2 be amended by changing percent to per centum and thereof
to therein and deleting the phrase by law in the second paragraph so
that said paragraph reads: The Congress[43] shall provide for the
implementation of the exercise of this right.[44] This amendment was
approved and is the text of the present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative
on the Constitution under Section 2 of Article XVII of the Constitution is
not self-executory.
Has Congress provided for the implementation of the exercise of this
right? Those who answer the question in the affirmative, like the private
respondents and intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the
exercise of the right than through the passage of a statute or legislative
act. This is the essence or rationale of the last minute amendment by
the Constitutional Commission to substitute the last paragraph of
Section 2 of Article XVII then reading:
The Congress[45] shall by law provide for the implementation of the
exercise of this right.
with
The Congress shall provide for the implementation of the exercise of
this right.
This substitute amendment was an investiture on Congress of a power
to provide for the rules implementing the exercise of the right. The
rules means the details on how [the right] is to be carried out.[46]
We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is
a consolidation of House Bill No. 21505 and Senate Bill No. 17. The
former was prepared by the Committee on Suffrage and Electoral
Reforms of the House of Representatives on the basis of two House
Bills referred to it, viz., (a) House Bill No. 497,[47] which dealt with the
204
initiative and referendum mentioned in Sections 1 and 32 of Article VI
of the Constitution; and (b) House Bill No. 988,[48] which dealt with the
subject matter of House Bill No. 497, as well as with initiative and
referendum under Section 3 of Article X (Local Government) and
initiative provided for in Section 2 of Article XVII of the Constitution.
Senate Bill No. 17[49] solely dealt with initiative and referendum
concerning ordinances or resolutions of local government units. The
Bicameral Conference Committee consolidated Senate Bill No. 17 and
House Bill No. 21505 into a draft bill, which was subsequently
approved on 8 June 1989 by the Senate[50] and by the House of
Representatives.[51] This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of
Congress to provide for the implementation of the exercise of the right?
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC,
Section 2 of the Act does not suggest an initiative on amendments to
the Constitution. The said section reads:
SECTION 2. Statement and Policy. -- The power of the people under a
system of initiative and referendum to directly propose, enact, approve
or reject, in whole or in part, the Constitution, laws, ordinances, or
resolutions passed by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized and
guaranteed. (Underscoring supplied).
The inclusion of the word Constitution therein was a delayed
afterthought. That word is neither germane nor relevant to said section,
which exclusively relates to initiative and referendum on national laws
and local laws, ordinances, and resolutions. That section is silent as to
amendments on the Constitution. As pointed out earlier, initiative on
the Constitution is confined only to proposals to AMEND. The people
are not accorded the power to directly propose, enact, approve, or
reject, in whole or in part, the Constitution through the system of
initiative. They can only do so with respect to laws, ordinances, or
resolutions.
The foregoing conclusion is further buttressed by the fact that this
section was lifted from Section 1 of Senate Bill No. 17, which solely
referred to a statement of policy on local initiative and referendum and
appropriately used the phrases propose and enact, approve or reject
and in whole or in part.[52]
Second. It is true that Section 3 (Definition of Terms) of the Act defines
initiative on amendments to the Constitution and mentions it as one of
the three systems of initiative, and that Section 5 (Requirements)
restates the constitutional requirements as to the percentage of the
registered voters who must submit the proposal. But unlike in the case
of the other systems of initiative, the Act does not provide for the
contents of a petition for initiative on the Constitution. Section 5,
paragraph (c) requires, among other things, statement of the proposed
law sought to be enacted, approved or rejected, amended or repealed,
as the case may be. It does not include, as among the contents of the
petition, the provisions of the Constitution sought to be amended, in the
case of initiative on the Constitution. Said paragraph (c) reads in full as
follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred
(100) words which shall be legibly written or printed at the top of every
page of the petition. (Underscoring supplied).
The use of the clause proposed laws sought to be enacted, approved
or rejected, amended or repealed only strengthens the conclusion that
Section 2, quoted earlier, excludes initiative on amendments to the
Constitution.
Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum
(Subtitle III), no subtitle is provided for initiative on the Constitution.
This conspicuous silence as to the latter simply means that the main
thrust of the Act is initiative and referendum on national and local laws.
If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it
could have provided for a subtitle therefor, considering that in the order
of things, the primacy of interest, or hierarchy of values, the right of the
people to directly propose amendments to the Constitution is far more
important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to
the Constitution is subsumed under the subtitle on National Initiative
and Referendum because it is national in scope. Our reading of
Subtitle II (National Initiative and Referendum) and Subtitle III (Local
Initiative and Referendum) leaves no room for doubt that the
classification is not based on the scope of the initiative involved, but on
its nature and character. It is national initiative, if what is proposed to
be adopted or enacted is a national law, or a law which only Congress
can pass. It is local initiative if what is proposed to be adopted or
enacted is a law, ordinance, or resolution which only the legislative
bodies of the governments of the autonomous regions, provinces,
cities, municipalities, and barangays can pass. This classification of
initiative into national and local is actually based on Section 3 of the
Act, which we quote for emphasis and clearer understanding:
SEC. 3. Definition of terms --
xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing
amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a
national legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to
enact a regional, provincial, city, municipal, or barangay law, resolution
or ordinance. (Underscoring supplied).
Hence, to complete the classification under subtitles there should have
been a subtitle on initiative on amendments to the Constitution.[53]
A further examination of the Act even reveals that the subtitling is not
accurate. Provisions not germane to the subtitle on National Initiative
and Referendum are placed therein, like (1) paragraphs (b) and (c) of
Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective as to
the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the
votes cast in an election called for the purpose shall become effective
fifteen (15) days after certification and proclamation of the
Commission. (Underscoring supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect
initiative with the legislative bodies of local governments; thus:
SEC. 11. Indirect Initiative. -- Any duly accredited peoples organization,
as defined by law, may file a petition for indirect initiative with the
House of Representatives, and other legislative bodies....
and (3) Section 12 on Appeal, since it applies to decisions of the
COMELEC on the findings of sufficiency or insufficiency of the petition
for initiative or referendum, which could be petitions for both national
and local initiative and referendum.
Upon the other hand, Section 18 on Authority of Courts under subtitle
III on Local Initiative and Referendum is misplaced,[54] since the
provision therein applies to both national and local initiative and
referendum. It reads:
SEC. 18. Authority of Courts. -- Nothing in this Act shall prevent or
preclude the proper courts from declaring null and void any proposition
approved pursuant to this Act for violation of the Constitution or want of
capacity of the local legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care
in providing for the details in the implementation of initiative and
referendum on national and local legislation thereby giving them
special attention, it failed, rather intentionally, to do so on the system of
initiative on amendments to the Constitution. Anent the initiative on
national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition
and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required
number of votes for its approval;
(d) The certification by the COMELEC of the approval of the
proposition;
(e) The publication of the approved proposition in the Official Gazette
or in a newspaper of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition.[55]
205
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of
registered voters for the petition;
(b) The submission of the petition to the local legislative body
concerned;
(c) The effect of the legislative bodys failure to favorably act thereon,
and the invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official
in the local government unit concerned as to whether the required
number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the
proposition to the registered voters for their approval, which must be
within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies.[56]
Upon the other hand, as to initiative on amendments to the
Constitution, R.A. No. 6735, in all of its twenty-three sections, merely
(a) mentions, the word Constitution in Section 2; (b) defines initiative
on the Constitution and includes it in the enumeration of the three
systems of initiative in Section 3; (c) speaks of plebiscite as the
process by which the proposition in an initiative on the Constitution
may be approved or rejected by the people; (d) reiterates the
constitutional requirements as to the number of voters who should sign
the petition; and (e) provides for the date of effectivity of the approved
proposition.
There was, therefore, an obvious downgrading of the more important
or the paramount system of initiative. R.A. No. 6735 thus delivered a
humiliating blow to the system of initiative on amendments to the
Constitution by merely paying it a reluctant lip service.[57]
The foregoing brings us to the conclusion that R.A. No. 6735 is
incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned.
Its lacunae on this substantive matter are fatal and cannot be cured by
empowering the COMELEC to promulgate such rules and regulations
as may be necessary to carry out the purposes of [the] Act.[58]
The rule is that what has been delegated, cannot be delegated or as
expressed in a Latin maxim: potestas delegata non delegari potest.[59]
The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of
Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section
23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.[60]
Empowering the COMELEC, an administrative body exercising quasi-
judicial functions, to promulgate rules and regulations is a form of
delegation of legislative authority under no. 5 above. However, in every
case of permissible delegation, there must be a showing that the
delegation itself is valid. It is valid only if the law (a) is complete in
itself, setting forth therein the policy to be executed, carried out, or
implemented by the delegate; and (b) fixes a standard -- the limits of
which are sufficiently determinate and determinable -- to which the
delegate must conform in the performance of his functions.[61] A
sufficient standard is one which defines legislative policy, marks its
limits, maps out its boundaries and specifies the public agency to apply
it. It indicates the circumstances under which the legislative command
is to be effected.[62]
Insofar as initiative to propose amendments to the Constitution is
concerned, R.A. No. 6735 miserably failed to satisfy both requirements
in subordinate legislation. The delegation of the power to the
COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES
RULES AND REGULATIONS ON THE CONDUCT OF INITIATIVE ON
AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules
and regulations to implement the exercise of the right of the people to
directly propose amendments to the Constitution through the system of
initiative. It does not have that power under R.A. No. 6735. Reliance on
the COMELECs power under Section 2(1) of Article IX-C of the
Constitution is misplaced, for the laws and regulations referred to
therein are those promulgated by the COMELEC under (a) Section 3 of
Article IX-C of the Constitution, or (b) a law where subordinate
legislation is authorized and which satisfies the completeness and the
sufficient standard tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN
PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance
with the power of Congress to implement the right to initiate
constitutional amendments, or that it has validly vested upon the
COMELEC the power of subordinate legislation and that COMELEC
Resolution No. 2300 is valid, the COMELEC acted without jurisdiction
or with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of
R.A. No. 6735, a petition for initiative on the Constitution must be
signed by at least 12% of the total number of registered voters of which
every legislative district is represented by at least 3% of the registered
voters therein. The Delfin Petition does not contain signatures of the
required number of voters. Delfin himself admits that he has not yet
gathered signatures and that the purpose of his petition is primarily to
obtain assistance in his drive to gather signatures. Without the required
signatures, the petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only
after its filing. The petition then is the initiatory pleading. Nothing before
its filing is cognizable by the COMELEC, sitting en banc. The only
participation of the COMELEC or its personnel before the filing of such
petition are (1) to prescribe the form of the petition;[63] (2) to issue
through its Election Records and Statistics Office a certificate on the
total number of registered voters in each legislative district;[64] (3) to
assist, through its election registrars, in the establishment of signature
stations;[65] and (4) to verify, through its election registrars, the
signatures on the basis of the registry list of voters, voters affidavits,
and voters identification cards used in the immediately preceding
election.[66]
Since the Delfin Petition is not the initiatory petition under R.A. No.
6735 and COMELEC Resolution No. 2300, it cannot be entertained or
given cognizance of by the COMELEC. The latter knew that the
petition does not fall under any of the actions or proceedings under the
COMELEC Rules of Procedure or under Resolution No. 2300, for
which reason it did not assign to the petition a docket number. Hence,
the said petition was merely entered as UND, meaning, undocketed.
That petition was nothing more than a mere scrap of paper, which
should not have been dignified by the Order of 6 December 1996, the
hearing on 12 December 1996, and the order directing Delfin and the
oppositors to file their memoranda or oppositions. In so dignifying it,
the COMELEC acted without jurisdiction or with grave abuse of
discretion and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether
the proposal to lift the term limits of the elective national and local
officials is an amendment to, and not a revision of, the Constitution is
rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments on the Constitution until a
sufficient law shall have been validly enacted to provide for the
implementation of the system.
We feel, however, that the system of initiative to propose amendments
to the Constitution should no longer be kept in the cold; it should be
given flesh and blood, energy and strength. Congress should not tarry
any longer in complying with the constitutional mandate to provide for
the implementation of the right of the people under that system.
WHEREFORE, judgment is hreby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of
initiative on amendments to the Constitution, and to have failed to
provide sufficient standard for subordinate legislation;
206
c) DECLARING void those parts of Resolutions No. 2300 of the
Commission on Elections prescribing rules and regulations on the
conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the
DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is
made permanent as against the Commission on Elections, but is
LIFTED against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo,Kapunan, Hermosisima,
Jr. and Torres Jr., JJ., concur.
Padilla, J., took no part; related to a co-petitioner and co-counsel of the
petitioners.
Melo and Mendoza, JJ., joins the separate, concurring opinions of
Justices Puno, Francisco and Panganiban.
Puno, Vitug, , Francisco and Panganiban, JJ., has separate opinions.
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH
6,327,952 REGISTERED VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------ x
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN,
MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V.
OPLE, and CARLOS P. MEDINA, JR., Intervenors.
x------------------------------------------------------ x
ATTY. PETE QUIRINO QUADRA, Intervenor.
x--------------------------------------------------------x
BAYAN represented by its Chairperson Dr. Carolina Pagaduan-
Araullo, BAYAN MUNA represented by its Chairperson Dr.
Reynaldo Lesaca, KILUSANG MAYO UNO represented by its
Secretary General Joel Maglunsod, HEAD represented by its
Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL
BISHOPS FORUM represented by Fr. Dionito Cabillas, MIGRANTE
represented by its Chairperson Concepcion Bragas-Regalado,
GABRIELA represented by its Secretary General Emerenciana de
Jesus, GABRIELA WOMEN'S PARTY represented by Sec. Gen.
Cristina Palabay, ANAKBAYAN represented by Chairperson
Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS
represented by Chair Vencer Crisostomo Palabay, JOJO PINEDA
of the League of Concerned Professionals and Businessmen, DR.
DARBY SANTIAGO of the Solidarity of Health Against Charter
Change, DR. REGINALD PAMUGAS of Health Action for Human
Rights, Intervenors.
x--------------------------------------------------------x
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA
THERESA HONTIVEROS-BARAQUEL, Intervenors.
x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.
x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
x---------------------------------------------------------x
LUWALHATI RICASA ANTONINO, Intervenor.
x ------------------------------------------------------- x
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.
x ------------------------------------------------------- x
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO
BAYA, Intervenors.
x -------------------------------------------------------- x
PHILIPPINE TRANSPORT AND GENERAL WORKERS
ORGANIZATION (PTGWO) and MR. VICTORINO F. BALAIS,
Intervenors.
x -------------------------------------------------------- x
SENATE OF THE PHILIPPINES, represented by its President,
MANUEL VILLAR, JR., Intervenor.
x ------------------------------------------------------- x
SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.
x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA
KARINA A. LAT, ANTONIO L. SALVADOR, and RANDALL
TABAYOYONG, Intervenors.
x -------------------------------------------------------- x
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU
PROVINCE CHAPTERS, Intervenors.
x --------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and
SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL,
JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON,
Intervenors.
x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG
PILIPINO, Intervenors.
x -----------------------------------------------------x
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE
A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
ROMEO A. BRAWNER, RENE V. SARMIENTO, NICODEMO T.
FERRER, and John Doe and Peter Doe,, Respondent.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August
2006 of the Commission on Elections ("COMELEC") denying due
course to an initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L.
Lambino and Erico B. Aumentado ("Lambino Group"), with other
groups1 and individuals, commenced gathering signatures for an
initiative petition to change the 1987 Constitution. On 25 August 2006,
the Lambino Group filed a petition with the COMELEC to hold a
plebiscite that will ratify their initiative petition under Section 5(b) and
(c)2 and Section 73 of Republic Act No. 6735 or the Initiative and
Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of
6,327,952 individuals constituting at least twelve per centum (12%) of
all registered voters, with each legislative district represented by at
least three per centum (3%) of its registered voters. The Lambino
Group also claimed that COMELEC election registrars had verified the
signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution
by modifying Sections 1-7 of Article VI (Legislative Department)4 and
Sections 1-4 of Article VII (Executive Department)5 and by adding
Article XVIII entitled "Transitory Provisions."6 These proposed changes
will shift the present Bicameral-Presidential system to a Unicameral-
Parliamentary form of government. The Lambino Group prayed that
after due publication of their petition, the COMELEC should submit the
following proposition in a plebiscite for the voters' ratification:
207
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII
OF THE 1987 CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL
TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with
the COMELEC indicating modifications in the proposed Article XVIII
(Transitory Provisions) of their initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due
course to the Lambino Group's petition for lack of an enabling law
governing initiative petitions to amend the Constitution. The COMELEC
invoked this Court's ruling in Santiago v. Commission on Elections8
declaring RA 6735 inadequate to implement the initiative clause on
proposals to amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the
writs of certiorari and mandamus to set aside the COMELEC
Resolution of 31 August 2006 and to compel the COMELEC to give
due course to their initiative petition. The Lambino Group contends that
the COMELEC committed grave abuse of discretion in denying due
course to their petition since Santiago is not a binding precedent.
Alternatively, the Lambino Group claims that Santiago binds only the
parties to that case, and their petition deserves cognizance as an
expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court
require respondent COMELEC Commissioners to show cause why
they should not be cited in contempt for the COMELEC's verification of
signatures and for "entertaining" the Lambino Group's petition despite
the permanent injunction in Santiago. The Court treated the Binay
Group's petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General
joined causes with the petitioners, urging the Court to grant the petition
despite the Santiago ruling. The Solicitor General proposed that the
Court treat RA 6735 and its implementing rules "as temporary devises
to implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings
supporting or opposing the Lambino Group's petition. The supporting
intervenors10 uniformly hold the view that the COMELEC committed
grave abuse of discretion in relying on Santiago. On the other hand,
the opposing intervenors11 hold the contrary view and maintain that
Santiago is a binding precedent. The opposing intervenors also
challenged (1) the Lambino Group's standing to file the petition; (2) the
validity of the signature gathering and verification process; (3) the
Lambino Group's compliance with the minimum requirement for the
percentage of voters supporting an initiative petition under Section 2,
Article XVII of the 1987 Constitution;12 (4) the nature of the proposed
changes as revisions and not mere amendments as provided under
Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino
Group's compliance with the requirement in Section 10(a) of RA 6735
limiting initiative petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26
September 2006. After receiving the parties' memoranda, the Court
considered the case submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with
Section 2, Article XVII of the Constitution on amendments to the
Constitution through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA
6735 "incomplete, inadequate or wanting in essential terms and
conditions" to implement the initiative clause on proposals to amend
the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in
denying due course to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic
requirements of the Constitution for conducting a people's initiative.
Thus, there is even no need to revisit Santiago, as the present petition
warrants dismissal based alone on the Lambino Group's glaring failure
to comply with the basic requirements of the Constitution. For following
the Court's ruling in Santiago, no grave abuse of discretion is
attributable to the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII
of the Constitution on Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional
provision that allows a people's initiative to propose amendments to the
Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters of which
every legislative district must be represented by at least three per
centum of the registered voters therein. x x x x (Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the
meaning of an amendment "directly proposed by the people through
initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters
want to propose a constitutional amendment. Is the draft of the
proposed constitutional amendment ready to be shown to the people
when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and
shown to them before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft
shown to them and they are asked whether or not they want to propose
this constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that
proposal and pass it around for signature.13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the
proposed constitutional amendment" should be "ready and shown" to
the people "before" they sign such proposal. The framers plainly stated
that "before they sign there is already a draft shown to them." The
framers also "envisioned" that the people should sign on the proposal
itself because the proponents must "prepare that proposal and pass it
around for signature."
The essence of amendments "directly proposed by the people through
initiative upon a petition" is that the entire proposal on its face is a
petition by the people. This means two essential elements must be
present. First, the people must author and thus sign the entire
proposal. No agent or representative can sign on their behalf. Second,
as an initiative upon a petition, the proposal must be embodied in a
petition.
These essential elements are present only if the full text of the
proposed amendments is first shown to the people who express their
assent by signing such complete proposal in a petition. Thus, an
amendment is "directly proposed by the people through initiative upon
a petition" only if the people sign on a petition that contains the full text
of the proposed amendments.
The full text of the proposed amendments may be either written on the
face of the petition, or attached to it. If so attached, the petition must
state the fact of such attachment. This is an assurance that every one
of the several millions of signatories to the petition had seen the full
text of the proposed amendments before signing. Otherwise, it is
physically impossible, given the time constraint, to prove that every one
of the millions of signatories had seen the full text of the proposed
amendments before signing.
The framers of the Constitution directly borrowed14 the concept of
people's initiative from the United States where various State
constitutions incorporate an initiative clause. In almost all States15
which allow initiative petitions, the unbending requirement is that the
people must first see the full text of the proposed amendments before
they sign to signify their assent, and that the people must sign on an
initiative petition that contains the full text of the proposed
amendments.16
The rationale for this requirement has been repeatedly explained in
several decisions of various courts. Thus, in Capezzuto v. State Ballot
Commission, the Supreme Court of Massachusetts, affirmed by the
First Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the person
supplying the signature has not first seen what it is that he or she is
signing. Further, and more importantly, loose interpretation of the
subscription requirement can pose a significant potential for fraud. A
person permitted to describe orally the contents of an initiative petition
to a potential signer, without the signer having actually examined the
petition, could easily mislead the signer by, for example, omitting,
downplaying, or even flatly misrepresenting, portions of the petition that
might not be to the signer's liking. This danger seems particularly acute
when, in this case, the person giving the description is the drafter of the
petition, who obviously has a vested interest in seeing that it gets the
208
requisite signatures to qualify for the ballot.17 (Boldfacing and
underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon
explained:
The purposes of "full text" provisions that apply to amendments by
initiative commonly are described in similar terms. x x x (The purpose
of the full text requirement is to provide sufficient information so that
registered voters can intelligently evaluate whether to sign the initiative
petition."); x x x (publication of full text of amended constitutional
provision required because it is "essential for the elector to have x x x
the section which is proposed to be added to or subtracted from. If he
is to vote intelligently, he must have this knowledge. Otherwise in many
instances he would be required to vote in the dark.") (Emphasis
supplied)
Moreover, "an initiative signer must be informed at the time of signing
of the nature and effect of that which is proposed" and failure to do so
is "deceptive and misleading" which renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that
the petition must set forth the full text of the proposed amendments.
However, the deliberations of the framers of our Constitution clearly
show that the framers intended to adopt the relevant American
jurisprudence on people's initiative. In particular, the deliberations of
the Constitutional Commission explicitly reveal that the framers
intended that the people must first see the full text of the proposed
amendments before they sign, and that the people must sign on a
petition containing such full text. Indeed, Section 5(b) of Republic Act
No. 6735, the Initiative and Referendum Act that the Lambino Group
invokes as valid, requires that the people must sign the "petition x x x
as signatories."
The proponents of the initiative secure the signatures from the people.
The proponents secure the signatures in their private capacity and not
as public officials. The proponents are not disinterested parties who
can impartially explain the advantages and disadvantages of the
proposed amendments to the people. The proponents present
favorably their proposal to the people and do not present the
arguments against their proposal. The proponents, or their supporters,
often pay those who gather the signatures.
Thus, there is no presumption that the proponents observed the
constitutional requirements in gathering the signatures. The
proponents bear the burden of proving that they complied with the
constitutional requirements in gathering the signatures - that the
petition contained, or incorporated by attachment, the full text of the
proposed amendments.
The Lambino Group did not attach to their present petition with this
Court a copy of the paper that the people signed as their initiative
petition. The Lambino Group submitted to this Court a copy of a
signature sheet20 after the oral arguments of 26 September 2006
when they filed their Memorandum on 11 October 2006. The signature
sheet with this Court during the oral arguments was the signature
sheet attached21 to the opposition in intervention filed on 7 September
2006 by intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the
signature sheet attached to the Lambino Group's Memorandum are the
same. We reproduce below the signature sheet in full:
Province:
City/Municipality:
No. of
Verified
Signatures:
Legislative District:
Barangay:
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF
ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING
THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-
PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF
GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY,
SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING
AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE
ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?"
I hereby APPROVE the proposed amendment to the 1987 Constitution.
My signature herein which shall form part of the petition for initiative to
amend the Constitution signifies my support for the filing thereof.
Precinct Number

Name

Last Name, First Name, M.I.

Address
7
Birthdate

MM/DD/YY

Signature

Verification

10

_________________
Barangay Official
(Print Name and Sign)

_________________
Witness
(Print Name and Sign)

__________________
5 Witness
(Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino

Group's proposed changes in the signature sheet. Neither does the
signature sheet state that the text of the proposed changes is attached
to it. Petitioner Atty. Raul Lambino admitted this during the oral
arguments before this Court on 26 September 2006.

The signature sheet merely asks a question whether the people

approve a shift from the Bicameral-Presidential to the Unicameral-
Parliamentary system of government. The signature sheet does not
show to the people the draft of the proposed changes before they are
asked to sign the signature sheet. Clearly, the signature sheet is not
6 the "petition" that the framers of the Constitution envisioned when they
formulated the initiative clause in Section 2, Article XVII of the
Constitution.

Petitioner Atty. Lambino, however, explained that during the signature-

gathering from February to August 2006, the Lambino Group
209
circulated, together with the signature sheets, printed copies of the
Lambino Group's draft petition which they later filed on 25 August 2006
with the COMELEC. When asked if his group also circulated the draft
of their amended petition filed on 30 August 2006 with the COMELEC,
Atty. Lambino initially replied that they circulated both. However, Atty.
Lambino changed his answer and stated that what his group circulated
was the draft of the 30 August 2006 amended petition, not the draft of
the 25 August 2006 petition.
The Lambino Group would have this Court believe that they prepared
the draft of the 30 August 2006 amended petition almost seven months
earlier in February 2006 when they started gathering signatures.
Petitioner Erico B. Aumentado's "Verification/Certification" of the 25
August 2006 petition, as well as of the 30 August 2006 amended
petition, filed with the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended] Petition in
my personal capacity as a registered voter, for and on behalf of the
Union of Local Authorities of the Philippines, as shown by ULAP
Resolution No. 2006-02 hereto attached, and as representative of the
mass of signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No.
2006-02 to the present petition. However, the "Official Website of the
Union of Local Authorities of the Philippines"22 has posted the full text
of Resolution No. 2006-02, which provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S
CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH
PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF
AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the
Philippines (ULAP) to adopt a common stand on the approach to
support the proposals of the People's Consultative Commission on
Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of
Her Excellency President Gloria Macapagal-Arroyo for constitutional
reforms as embodied in the ULAP Joint Declaration for Constitutional
Reforms signed by the members of the ULAP and the majority coalition
of the House of Representatives in Manila Hotel sometime in October
2005;
WHEREAS, the People's Consultative Commission on Charter Change
created by Her Excellency to recommend amendments to the 1987
Constitution has submitted its final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments
in Congress which militates against the use of the expeditious form of
amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members and
the failure of Congress to amend the Constitution as a constituent
assembly, ULAP has unanimously agreed to pursue the constitutional
reform agenda through People's Initiative and Referendum without
prejudice to other pragmatic means to pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED,
THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL
AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE
PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S
INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE
1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting
held on 14 January 2006 at the Century Park Hotel, Manila.23
(Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner
Aumentado to prepare the 25 August 2006 petition, or the 30 August
2006 amended petition, filed with the COMELEC. ULAP Resolution No.
2006-02 "support(s) the porposals (sic) of the Consulatative (sic)
Commission on Charter Change through people's initiative and
referendum as a mode of amending the 1987 Constitution." The
proposals of the Consultative Commission24 are vastly different from
the proposed changes of the Lambino Group in the 25 August 2006
petition or 30 August 2006 amended petition filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission
affect all provisions of the existing Constitution, from the Preamble to
the Transitory Provisions. The proposed revisions have profound
impact on the Judiciary and the National Patrimony provisions of the
existing Constitution, provisions that the Lambino Group's proposed
changes do not touch. The Lambino Group's proposed changes
purport to affect only Articles VI and VII of the existing Constitution,
including the introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or
more than six months before the filing of the 25 August 2006 petition or
210
the 30 August 2006 amended petition with the COMELEC. However,
ULAP Resolution No. 2006-02 does not establish that ULAP or the
Lambino Group caused the circulation of the draft petition, together
with the signature sheets, six months before the filing with the
COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts
grave doubt on the Lambino Group's claim that they circulated the draft
petition together with the signature sheets. ULAP Resolution No. 2006-
02 does not refer at all to the draft petition or to the Lambino Group's
proposed changes.
In their Manifestation explaining their amended petition before the
COMELEC, the Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the
proposed amendments alleged in the Petition, more specifically,
paragraph 3 of Section 4 and paragraph 2 of Section 5 of the
Transitory Provisions were inaccurately stated and failed to correctly
reflect their proposed amendments.
The Lambino Group did not allege that they were amending the petition
because the amended petition was what they had shown to the people
during the February to August 2006 signature-gathering. Instead, the
Lambino Group alleged that the petition of 25 August 2006
"inaccurately stated and failed to correctly reflect their proposed
amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the
30 August 2006 amended petition with the COMELEC that they
circulated printed copies of the draft petition together with the signature
sheets. Likewise, the Lambino Group did not allege in their present
petition before this Court that they circulated printed copies of the draft
petition together with the signature sheets. The signature sheets do not
also contain any indication that the draft petition is attached to, or
circulated with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions
that the Lambino Group first claimed that they circulated the "petition
for initiative filed with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not
(sic) fraud, a signer who did not read the measure attached to a
referendum petition cannot question his signature on the ground that
he did not understand the nature of the act." [82 C.J.S. S128h. Mo.
State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered
voters who signed the signature sheets circulated together with the
petition for initiative filed with the COMELEC below, are presumed to
have understood the proposition contained in the petition. (Emphasis
supplied)
The Lambino Group's statement that they circulated to the people "the
petition for initiative filed with the COMELEC" appears an afterthought,
made after the intervenors Integrated Bar of the Philippines (Cebu City
Chapter and Cebu Province Chapters) and Atty. Quadra had pointed
out that the signature sheets did not contain the text of the proposed
changes. In their Consolidated Reply, the Lambino Group alleged that
they circulated "the petition for initiative" but failed to mention the
amended petition. This contradicts what Atty. Lambino finally stated
during the oral arguments that what they circulated was the draft of the
amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating
that "a signer who did not read the measure attached to a referendum
petition cannot question his signature on the ground that he did not
understand the nature of the act." The Lambino Group quotes an
authority that cites a proposed change attached to the petition signed
by the people. Even the authority the Lambino Group quotes requires
that the proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign on the
petition itself.
Indeed, it is basic in American jurisprudence that the proposed
amendment must be incorporated with, or attached to, the initiative
petition signed by the people. In the present initiative, the Lambino
Group's proposed changes were not incorporated with, or attached to,
the signature sheets. The Lambino Group's citation of Corpus Juris
Secundum pulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed,
circulated, from February to August 2006 during the signature-
gathering period, the draft of the petition or amended petition they filed
later with the COMELEC. The Lambino Group are less than candid
with this Court in their belated claim that they printed and circulated,
together with the signature sheets, the petition or amended petition.
Nevertheless, even assuming the Lambino Group circulated the
amended petition during the signature-gathering period, the Lambino
Group admitted circulating only very limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they
printed only 100,000 copies of the draft petition they filed more than six
months later with the COMELEC. Atty. Lambino added that he also
asked other supporters to print additional copies of the draft petition but
he could not state with certainty how many additional copies the other
supporters printed. Atty. Lambino could only assure this Court of the
printing of 100,000 copies because he himself caused the printing of
these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October
2006, the Lambino Group expressly admits that "petitioner Lambino
initiated the printing and reproduction of 100,000 copies of the petition
for initiative x x x."25 This admission binds the Lambino Group and
establishes beyond any doubt that the Lambino Group failed to show
the full text of the proposed changes to the great majority of the people
who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could
have received with certainty one copy each of the petition, assuming a
100 percent distribution with no wastage. If Atty. Lambino and
company attached one copy of the petition to each signature sheet,
only 100,000 signature sheets could have circulated with the petition.
Each signature sheet contains space for ten signatures. Assuming ten
people signed each of these 100,000 signature sheets with the
attached petition, the maximum number of people who saw the petition
before they signed the signature sheets would not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically
impossible for all or a great majority of the 6.3 million signatories to
have seen the petition before they signed the signature sheets. The
inescapable conclusion is that the Lambino Group failed to show to the
6.3 million signatories the full text of the proposed changes. If ever, not
more than one million signatories saw the petition before they signed
the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the
full text of the proposed changes, either on the face of the signature
sheets, or as attachment with an indication in the signature sheet of
such attachment. Petitioner Atty. Lambino admitted this during the oral
arguments, and this admission binds the Lambino Group. This fact is
also obvious from a mere reading of the signature sheet. This omission
is fatal. The failure to so include the text of the proposed changes in
the signature sheets renders the initiative void for non-compliance with
the constitutional requirement that the amendment must be "directly
proposed by the people through initiative upon a petition." The
signature sheet is not the "petition" envisioned in the initiative clause of
the Constitution.
For sure, the great majority of the 6.3 million people who signed the
signature sheets did not see the full text of the proposed changes
before signing. They could not have known the nature and effect of the
proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus
members of Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to function indefinitely until its
members, who are almost all the present members of Congress,
decide to call for new parliamentary elections. Thus, the members of
the interim Parliament will determine the expiration of their own term of
office; 27
3. Within 45 days from the ratification of the proposed changes, the
interim Parliament shall convene to propose further amendments or
revisions to the Constitution.28
These three specific amendments are not stated or even indicated in
the Lambino Group's signature sheets. The people who signed the
signature sheets had no idea that they were proposing these
amendments. These three proposed changes are highly controversial.
The people could not have inferred or divined these proposed changes
merely from a reading or rereading of the contents of the signature
sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and
his group assured the people during the signature-gathering that the
elections for the regular Parliament would be held during the 2007 local
elections if the proposed changes were ratified before the 2007 local
elections. However, the text of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as
found in the amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the
members of Parliament, which shall be synchronized and held
simultaneously with the election of all local government officials. x x x x
(Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament
will be held simultaneously with the 2007 local elections. This section
merely requires that the elections for the regular Parliament shall be
held simultaneously with the local elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the
proposed changes, could have easily written the word "next" before the
phrase "election of all local government officials." This would have
insured that the elections for the regular Parliament would be held in
the next local elections following the ratification of the proposed
changes. However, the absence of the word "next" allows the interim
211
Parliament to schedule the elections for the regular Parliament
simultaneously with any future local elections.
Thus, the members of the interim Parliament will decide the expiration
of their own term of office. This allows incumbent members of the
House of Representatives to hold office beyond their current three-year
term of office, and possibly even beyond the five-year term of office of
regular members of the Parliament. Certainly, this is contrary to the
representations of Atty. Lambino and his group to the 6.3 million
people who signed the signature sheets. Atty. Lambino and his group
deceived the 6.3 million signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative
petition that contains the full text of the proposed amendments to avoid
fraud or misrepresentation. In the present initiative, the 6.3 million
signatories had to rely on the verbal representations of Atty. Lambino
and his group because the signature sheets did not contain the full text
of the proposed changes. The result is a grand deception on the 6.3
million signatories who were led to believe that the proposed changes
would require the holding in 2007 of elections for the regular
Parliament simultaneously with the local elections.
The Lambino Group's initiative springs another surprise on the people
who signed the signature sheets. The proposed changes mandate the
interim Parliament to make further amendments or revisions to the
Constitution. The proposed Section 4(4), Article XVIII on Transitory
Provisions, provides:
Section 4(4). Within forty-five days from ratification of these
amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent with the
principles of local autonomy, decentralization and a strong
bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a
"surplusage" and the Court and the people should simply ignore it. Far
from being a surplusage, this provision invalidates the Lambino
Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the
Bicameral-Presidential to the Unicameral-Parliamentary system.
American jurisprudence on initiatives outlaws this as logrolling - when
the initiative petition incorporates an unrelated subject matter in the
same petition. This puts the people in a dilemma since they can
answer only either yes or no to the entire proposition, forcing them to
sign a petition that effectively contains two propositions, one of which
they may find unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the
entire proposition and not only the unrelated subject matter. Thus, in
Fine v. Firestone,29 the Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes
"logrolling," which, if our judicial responsibility is to mean anything, we
cannot permit. The very broadness of the proposed amendment
amounts to logrolling because the electorate cannot know what it is
voting on - the amendment's proponents' simplistic explanation reveals
only the tip of the iceberg. x x x x The ballot must give the electorate
fair notice of the proposed amendment being voted on. x x x x The
ballot language in the instant case fails to do that. The very broadness
of the proposal makes it impossible to state what it will affect and effect
and violates the requirement that proposed amendments embrace only
one subject. (Emphasis supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska
v. McAlpine,30 the Supreme Court of Alaska warned against
"inadvertence, stealth and fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the
problems that the single-subject rule was enacted to prevent are
exacerbated. There is a greater danger of logrolling, or the deliberate
intermingling of issues to increase the likelihood of an initiative's
passage, and there is a greater opportunity for "inadvertence, stealth
and fraud" in the enactment-by-initiative process. The drafters of an
initiative operate independently of any structured or supervised
process. They often emphasize particular provisions of their
proposition, while remaining silent on other (more complex or less
appealing) provisions, when communicating to the public. x x x Indeed,
initiative promoters typically use simplistic advertising to present their
initiative to potential petition-signers and eventual voters. Many voters
will never read the full text of the initiative before the election. More
importantly, there is no process for amending or splitting the several
provisions in an initiative proposal. These difficulties clearly distinguish
the initiative from the legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for
further amendments or revisions to be undertaken by the interim
Parliament as a constituent assembly. The people who signed the
signature sheets could not have known that their signatures would be
used to propose an amendment mandating the interim Parliament to
propose further amendments or revisions to the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to
compel the interim Parliament to amend or revise again the
Constitution within 45 days from ratification of the proposed changes,
or before the May 2007 elections. In the absence of the proposed
Section 4(4), the interim Parliament has the discretion whether to
amend or revise again the Constitution. With the proposed Section
4(4), the initiative proponents want the interim Parliament mandated to
immediately amend or revise again the Constitution.
However, the signature sheets do not explain the reason for this rush
in amending or revising again so soon the Constitution. The signature
sheets do not also explain what specific amendments or revisions the
initiative proponents want the interim Parliament to make, and why
there is a need for such further amendments or revisions. The people
are again left in the dark to fathom the nature and effect of the
proposed changes. Certainly, such an initiative is not "directly
proposed by the people" because the people do not even know the
nature and effect of the proposed changes.
There is another intriguing provision inserted in the Lambino Group's
amended petition of 30 August 2006. The proposed Section 4(3) of the
Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be
members of Parliament until noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as
member of Parliament if the interim Parliament does not schedule
elections for the regular Parliament by 30 June 2010. However, there is
no counterpart provision for the present members of the House of
Representatives even if their term of office will all end on 30 June
2007, three years earlier than that of half of the present Senators.
Thus, all the present members of the House will remain members of
the interim Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010.
Thereafter, the Prime Minister exercises all the powers of the
President. If the interim Parliament does not schedule elections for the
regular Parliament by 30 June 2010, the Prime Minister will come only
from the present members of the House of Representatives to the
exclusion of the present Senators.
The signature sheets do not explain this discrimination against the
Senators. The 6.3 million people who signed the signature sheets
could not have known that their signatures would be used to
discriminate against the Senators. They could not have known that
their signatures would be used to limit, after 30 June 2010, the interim
Parliament's choice of Prime Minister only to members of the existing
House of Representatives.
An initiative that gathers signatures from the people without first
showing to the people the full text of the proposed amendments is
most likely a deception, and can operate as a gigantic fraud on the
people. That is why the Constitution requires that an initiative must be
"directly proposed by the people x x x in a petition" - meaning that the
people must sign on a petition that contains the full text of the
proposed amendments. On so vital an issue as amending the nation's
fundamental law, the writing of the text of the proposed amendments
cannot be hidden from the people under a general or special power of
attorney to unnamed, faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose
amendments to the Constitution. This Court trusts the wisdom of the
people even if the members of this Court do not personally know the
people who sign the petition. However, this trust emanates from a
fundamental assumption: the full text of the proposed amendment is
first shown to the people before they sign the petition, not after they
have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional
because it dismally fails to comply with the requirement of Section 2,
Article XVII of the Constitution that the initiative must be "directly
proposed by the people through initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution
Disallowing Revision through Initiatives
A people's initiative to change the Constitution applies only to an
amendment of the Constitution and not to its revision. In contrast,
Congress or a constitutional convention can propose both
amendments and revisions to the Constitution. Article XVII of the
Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may be
proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members, or
(2) A constitutional convention.
212
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative x x x. (Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the
Constitution. The first mode is through Congress upon three-fourths
vote of all its Members. The second mode is through a constitutional
convention. The third mode is through a people's initiative.
Section 1 of Article XVII, referring to the first and second modes,
applies to "[A]ny amendment to, or revision of, this Constitution." In
contrast, Section 2 of Article XVII, referring to the third mode, applies
only to "[A]mendments to this Constitution." This distinction was
intentional as shown by the following deliberations of the Constitutional
Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the
Commission that pursuant to the mandate given to us last night, we
submitted this afternoon a complete Committee Report No. 7 which
embodies the proposed provision governing the matter of initiative.
This is now covered by Section 2 of the complete committee report.
With the permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite
held, directly propose amendments to this Constitution thru initiative
upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report
No. 7. This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional modes
of amending the Constitution as embodied in Section 1. The committee
members felt that this system of initiative should be limited to
amendments to the Constitution and should not extend to the revision
of the entire Constitution, so we removed it from the operation of
Section 1 of the proposed Article on Amendment or Revision. x x x x
xxxx
MS. AQUINO: [I] am seriously bothered by providing this process of
initiative as a separate section in the Article on Amendment. Would the
sponsor be amenable to accepting an amendment in terms of
realigning Section 2 as another subparagraph (c) of Section 1, instead
of setting it up as another separate section as if it were a self-executing
provision?
MR. SUAREZ: We would be amenable except that, as we clarified a
while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which contemplates
a total overhaul of the Constitution. That was the sense that was
conveyed by the Committee.
MS. AQUINO: In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to include
the process of revision; whereas, the process of initiation to amend,
which is given to the public, would only apply to amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the
Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendments." Does it not cover the
word "revision" as defined by Commissioner Padilla when he made the
distinction between the words "amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision"
should be covered by Section 1. So insofar as initiative is concerned, it
can only relate to "amendments" not "revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution
intended, and wrote, a clear distinction between "amendment" and
"revision" of the Constitution. The framers intended, and wrote, that
only Congress or a constitutional convention may propose revisions to
the Constitution. The framers intended, and wrote, that a people's
initiative may propose only amendments to the Constitution. Where the
intent and language of the Constitution clearly withhold from the people
the power to propose revisions to the Constitution, the people cannot
propose revisions even as they are empowered to propose
amendments.
This has been the consistent ruling of state supreme courts in the
United States. Thus, in McFadden v. Jordan,32 the Supreme Court of
California ruled:
The initiative power reserved by the people by amendment to the
Constitution x x x applies only to the proposing and the adopting or
rejecting of 'laws and amendments to the Constitution' and does not
purport to extend to a constitutional revision. x x x x It is thus clear that
a revision of the Constitution may be accomplished only through
ratification by the people of a revised constitution proposed by a
convention called for that purpose as outlined hereinabove.
Consequently if the scope of the proposed initiative measure
(hereinafter termed 'the measure') now before us is so broad that if
such measure became law a substantial revision of our present state
Constitution would be effected, then the measure may not properly be
submitted to the electorate until and unless it is first agreed upon by a
constitutional convention, and the writ sought by petitioner should
issue. x x x x (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in
which it may be amended or revised, it can be altered by those who
favor amendments, revision, or other change only through the use of
one of the specified means. The constitution itself recognizes that there
is a difference between an amendment and a revision; and it is obvious
from an examination of the measure here in question that it is not an
amendment as that term is generally understood and as it is used in
Article IV, Section 1. The document appears to be based in large part
on the revision of the constitution drafted by the 'Commission for
Constitutional Revision' authorized by the 1961 Legislative Assembly, x
x x and submitted to the 1963 Legislative Assembly. It failed to receive
in the Assembly the two-third's majority vote of both houses required
by Article XVII, Section 2, and hence failed of adoption, x x x.
While differing from that document in material respects, the measure
sponsored by the plaintiffs is, nevertheless, a thorough overhauling of
the present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure
as can be submitted to the people through the initiative. If a revision, it
is subject to the requirements of Article XVII, Section 2(1); if a new
constitution, it can only be proposed at a convention called in the
manner provided in Article XVII, Section 1. x x x x
Similarly, in this jurisdiction there can be no dispute that a people's
initiative can only propose amendments to the Constitution since the
Constitution itself limits initiatives to amendments. There can be no
deviation from the constitutionally prescribed modes of revising the
Constitution. A popular clamor, even one backed by 6.3 million
signatures, cannot justify a deviation from the specific modes
prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No.
364:34
It is a fundamental principle that a constitution can only be revised or
amended in the manner prescribed by the instrument itself, and that
any attempt to revise a constitution in a manner other than the one
provided in the instrument is almost invariably treated as extra-
constitutional and revolutionary. x x x x "While it is universally
conceded that the people are sovereign and that they have power to
adopt a constitution and to change their own work at will, they must, in
doing so, act in an orderly manner and according to the settled
principles of constitutional law. And where the people, in adopting a
constitution, have prescribed the method by which the people may alter
or amend it, an attempt to change the fundamental law in violation of
the self-imposed restrictions, is unconstitutional." x x x x (Emphasis
supplied)
This Court, whose members are sworn to defend and protect the
Constitution, cannot shirk from its solemn oath and duty to insure
compliance with the clear command of the Constitution ― that a
people's initiative may only amend, never revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an
amendment or revision of the Constitution? If the Lambino Group's
initiative constitutes a revision, then the present petition should be
dismissed for being outside the scope of Section 2, Article XVII of the
Constitution.
Courts have long recognized the distinction between an amendment
and a revision of a constitution. One of the earliest cases that
recognized the distinction described the fundamental difference in this
manner:
[T]he very term "constitution" implies an instrument of a permanent and
abiding nature, and the provisions contained therein for its revision
indicate the will of the people that the underlying principles upon which
it rests, as well as the substantial entirety of the instrument, shall be of
a like permanent and abiding nature. On the other hand, the
significance of the term "amendment" implies such an addition or
change within the lines of the original instrument as will effect an
improvement, or better carry out the purpose for which it was
framed.35 (Emphasis supplied)
213
Revision broadly implies a change that alters a basic principle in the
constitution, like altering the principle of separation of powers or the
system of checks-and-balances. There is also revision if the change
alters the substantial entirety of the constitution, as when the change
affects substantial provisions of the constitution. On the other hand,
amendment broadly refers to a change that adds, reduces, or deletes
without altering the basic principle involved. Revision generally affects
several provisions of the constitution, while amendment generally
affects only the specific provision being amended.
In California where the initiative clause allows amendments but not
revisions to the constitution just like in our Constitution, courts have
developed a two-part test: the quantitative test and the qualitative test.
The quantitative test asks whether the proposed change is "so
extensive in its provisions as to change directly the 'substantial entirety'
of the constitution by the deletion or alteration of numerous existing
provisions."36 The court examines only the number of provisions
affected and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed
change in the constitution. The main inquiry is whether the change will
"accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision."37 Whether there is an
alteration in the structure of government is a proper subject of inquiry.
Thus, "a change in the nature of [the] basic governmental plan"
includes "change in its fundamental framework or the fundamental
powers of its Branches."38 A change in the nature of the basic
governmental plan also includes changes that "jeopardize the
traditional form of government and the system of check and
balances."39
Under both the quantitative and qualitative tests, the Lambino Group's
initiative is a revision and not merely an amendment. Quantitatively,
the Lambino Group's proposed changes overhaul two articles - Article
VI on the Legislature and Article VII on the Executive - affecting a total
of 105 provisions in the entire Constitution.40 Qualitatively, the
proposed changes alter substantially the basic plan of government,
from presidential to parliamentary, and from a bicameral to a
unicameral legislature.
A change in the structure of government is a revision of the
Constitution, as when the three great co-equal branches of government
in the present Constitution are reduced into two. This alters the
separation of powers in the Constitution. A shift from the present
Bicameral-Presidential system to a Unicameral-Parliamentary system
is a revision of the Constitution. Merging the legislative and executive
branches is a radical change in the structure of government.
The abolition alone of the Office of the President as the locus of
Executive Power alters the separation of powers and thus constitutes a
revision of the Constitution. Likewise, the abolition alone of one
chamber of Congress alters the system of checks-and-balances within
the legislature and constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-
Presidential to a Unicameral-Parliamentary system, involving the
abolition of the Office of the President and the abolition of one chamber
of Congress, is beyond doubt a revision, not a mere amendment. On
the face alone of the Lambino Group's proposed changes, it is readily
apparent that the changes will radically alter the framework of
government as set forth in the Constitution. Father Joaquin Bernas,
S.J., a leading member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and
separable provisions. The guiding original intention of an amendment
is to improve specific parts or to add new provisions deemed
necessary to meet new conditions or to suppress specific portions that
may have become obsolete or that are judged to be dangerous. In
revision, however, the guiding original intention and plan contemplates
a re-examination of the entire document, or of provisions of the
document which have over-all implications for the entire document, to
determine how and to what extent they should be altered. Thus, for
instance a switch from the presidential system to a parliamentary
system would be a revision because of its over-all impact on the entire
constitutional structure. So would a switch from a bicameral system to
a unicameral system be because of its effect on other important
provisions of the Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment
of the Florida State constitution to shift from a bicameral to a
unicameral legislature. The issue turned on whether the initiative "was
defective and unauthorized where [the] proposed amendment would x
x x affect several other provisions of [the] Constitution." The Supreme
Court of Florida, striking down the initiative as outside the scope of the
initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968
Constitution to provide for a Unicameral Legislature affects not only
many other provisions of the Constitution but provides for a change in
the form of the legislative branch of government, which has been in
existence in the United States Congress and in all of the states of the
nation, except one, since the earliest days. It would be difficult to
visualize a more revolutionary change. The concept of a House and a
Senate is basic in the American form of government. It would not only
radically change the whole pattern of government in this state and tear
apart the whole fabric of the Constitution, but would even affect the
physical facilities necessary to carry on government.
xxxx
We conclude with the observation that if such proposed amendment
were adopted by the people at the General Election and if the
Legislature at its next session should fail to submit further amendments
to revise and clarify the numerous inconsistencies and conflicts which
would result, or if after submission of appropriate amendments the
people should refuse to adopt them, simple chaos would prevail in the
government of this State. The same result would obtain from an
amendment, for instance, of Section 1 of Article V, to provide for only a
Supreme Court and Circuit Courts-and there could be other examples
too numerous to detail. These examples point unerringly to the answer.
The purpose of the long and arduous work of the hundreds of men and
women and many sessions of the Legislature in bringing about the
Constitution of 1968 was to eliminate inconsistencies and conflicts and
to give the State a workable, accordant, homogenous and up-to-date
document. All of this could disappear very quickly if we were to hold
that it could be amended in the manner proposed in the initiative
petition here.43 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the
present petition. The Lambino Group's initiative not only seeks a shift
from a bicameral to a unicameral legislature, it also seeks to merge the
executive and legislative departments. The initiative in Adams did not
even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the
Florida Constitution that would be affected by the shift from a bicameral
to a unicameral legislature. In the Lambino Group's present initiative,
no less than 105 provisions of the Constitution would be affected
based on the count of Associate Justice Romeo J. Callejo, Sr.44 There
is no doubt that the Lambino Group's present initiative seeks far more
radical changes in the structure of government than the initiative in
Adams.
The Lambino Group theorizes that the difference between
"amendment" and "revision" is only one of procedure, not of substance.
The Lambino Group posits that when a deliberative body drafts and
proposes changes to the Constitution, substantive changes are called
"revisions" because members of the deliberative body work full-time on
the changes. However, the same substantive changes, when proposed
through an initiative, are called "amendments" because the changes
are made by ordinary people who do not make an "occupation,
profession, or vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their
theory in their Memorandum:
99. With this distinction in mind, we note that the constitutional
provisions expressly provide for both "amendment" and "revision"
when it speaks of legislators and constitutional delegates, while the
same provisions expressly provide only for "amendment" when it
speaks of the people. It would seem that the apparent distinction is
based on the actual experience of the people, that on one hand the
common people in general are not expected to work full-time on the
matter of correcting the constitution because that is not their
occupation, profession or vocation; while on the other hand, the
legislators and constitutional convention delegates are expected to
work full-time on the same matter because that is their occupation,
profession or vocation. Thus, the difference between the words
"revision" and "amendment" pertain only to the process or procedure of
coming up with the corrections, for purposes of interpreting the
constitutional provisions.
100. Stated otherwise, the difference between "amendment" and
"revision" cannot reasonably be in the substance or extent of the
correction. x x x x (Underlining in the original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional
convention had drafted the same proposed changes that the Lambino
Group wrote in the present initiative, the changes would constitute a
revision of the Constitution. Thus, the Lambino Group concedes that
the proposed changes in the present initiative constitute a revision if
Congress or a constitutional convention had drafted the changes.
However, since the Lambino Group as private individuals drafted the
proposed changes, the changes are merely amendments to the
Constitution. The Lambino Group trivializes the serious matter of
changing the fundamental law of the land.
The express intent of the framers and the plain language of the
Constitution contradict the Lambino Group's theory. Where the intent of
the framers and the language of the Constitution are clear and plainly
stated, courts do not deviate from such categorical intent and
language.45 Any theory espousing a construction contrary to such
intent and language deserves scant consideration. More so, if such
theory wreaks havoc by creating inconsistencies in the form of
government established in the Constitution. Such a theory, devoid of
214
any jurisprudential mooring and inviting inconsistencies in the
Constitution, only exposes the flimsiness of the Lambino Group's
position. Any theory advocating that a proposed change involving a
radical structural change in government does not constitute a revision
justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents
in American jurisdictions have attempted to advance without any
success. In Lowe v. Keisling,46 the Supreme Court of Oregon rejected
this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to
the constitution proposed by initiative. His theory is that Article XVII,
section 2 merely provides a procedure by which the legislature can
propose a revision of the constitution, but it does not affect proposed
revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a
wholesale change to the constitution that cannot be enacted through
the initiative process. They assert that the distinction between
amendment and revision is determined by reviewing the scope and
subject matter of the proposed enactment, and that revisions are not
limited to "a formal overhauling of the constitution." They argue that
this ballot measure proposes far reaching changes outside the lines of
the original instrument, including profound impacts on existing
fundamental rights and radical restructuring of the government's
relationship with a defined group of citizens. Plaintiffs assert that,
because the proposed ballot measure "will refashion the most basic
principles of Oregon constitutional law," the trial court correctly held
that it violated Article XVII, section 2, and cannot appear on the ballot
without the prior approval of the legislature.
We first address Mabon's argument that Article XVII, section 2(1), does
not prohibit revisions instituted by initiative. In Holmes v. Appling, x x x,
the Supreme Court concluded that a revision of the constitution may
not be accomplished by initiative, because of the provisions of Article
XVII, section 2. After reviewing Article XVII, section1, relating to
proposed amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the
use of the initiative as a means of amending the Oregon Constitution,
but it contains no similar sanction for its use as a means of revising the
constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said:
"It is the only section of the constitution which provides the means for
constitutional revision and it excludes the idea that an individual,
through the initiative, may place such a measure before the electorate."
xxxx
Accordingly, we reject Mabon's argument that Article XVII, section 2,
does not apply to constitutional revisions proposed by initiative.
(Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which
negates the express intent of the framers and the plain language of the
Constitution.
We can visualize amendments and revisions as a spectrum, at one
end green for amendments and at the other end red for revisions.
Towards the middle of the spectrum, colors fuse and difficulties arise in
determining whether there is an amendment or revision. The present
initiative is indisputably located at the far end of the red spectrum
where revision begins. The present initiative seeks a radical overhaul
of the existing separation of powers among the three co-equal
departments of government, requiring far-reaching amendments in
several sections and articles of the Constitution.
Where the proposed change applies only to a specific provision of the
Constitution without affecting any other section or article, the change
may generally be considered an amendment and not a revision. For
example, a change reducing the voting age from 18 years to 15
years47 is an amendment and not a revision. Similarly, a change
reducing Filipino ownership of mass media companies from 100
percent to 60 percent is an amendment and not a revision.48 Also, a
change requiring a college degree as an additional qualification for
election to the Presidency is an amendment and not a revision.49
The changes in these examples do not entail any modification of
sections or articles of the Constitution other than the specific provision
being amended. These changes do not also affect the structure of
government or the system of checks-and-balances among or within the
three branches. These three examples are located at the far green end
of the spectrum, opposite the far red end where the revision sought by
the present petition is located.
However, there can be no fixed rule on whether a change is an
amendment or a revision. A change in a single word of one sentence of
the Constitution may be a revision and not an amendment. For
example, the substitution of the word "republican" with "monarchic" or
"theocratic" in Section 1, Article II50 of the Constitution radically
overhauls the entire structure of government and the fundamental
ideological basis of the Constitution. Thus, each specific change will
have to be examined case-by-case, depending on how it affects other
provisions, as well as how it affects the structure of government, the
carefully crafted system of checks-and-balances, and the underlying
ideological basis of the existing Constitution.
Since a revision of a constitution affects basic principles, or several
provisions of a constitution, a deliberative body with recorded
proceedings is best suited to undertake a revision. A revision requires
harmonizing not only several provisions, but also the altered principles
with those that remain unaltered. Thus, constitutions normally
authorize deliberative bodies like constituent assemblies or
constitutional conventions to undertake revisions. On the other hand,
constitutions allow people's initiatives, which do not have fixed and
identifiable deliberative bodies or recorded proceedings, to undertake
only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the
Transitory Provisions states:
Section 2. Upon the expiration of the term of the incumbent President
and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7
of Article VI of the 1987 Constitution which shall hereby be amended
and Sections 18 and 24 which shall be deleted, all other Sections of
Article VI are hereby retained and renumbered sequentially as Section
2, ad seriatim up to 26, unless they are inconsistent with the
Parliamentary system of government, in which case, they shall be
amended to conform with a unicameral parliamentary form of
government; x x x x (Emphasis supplied)
The basic rule in statutory construction is that if a later law is
irreconcilably inconsistent with a prior law, the later law prevails. This
rule also applies to construction of constitutions. However, the Lambino
Group's draft of Section 2 of the Transitory Provisions turns on its head
this rule of construction by stating that in case of such irreconcilable
inconsistency, the earlier provision "shall be amended to conform with
a unicameral parliamentary form of government." The effect is to freeze
the two irreconcilable provisions until the earlier one "shall be
amended," which requires a future separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner
Atty. Lambino readily conceded during the oral arguments that the
requirement of a future amendment is a "surplusage." In short, Atty.
Lambino wants to reinstate the rule of statutory construction so that the
later provision automatically prevails in case of irreconcilable
inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2
of the Transitory Provisions is not between a provision in Article VI of
the 1987 Constitution and a provision in the proposed changes. The
inconsistency is between a provision in Article VI of the 1987
Constitution and the "Parliamentary system of government," and the
inconsistency shall be resolved in favor of a "unicameral parliamentary
form of government."
Now, what "unicameral parliamentary form of government" do the
Lambino Group's proposed changes refer to ― the Bangladeshi,
Singaporean, Israeli, or New Zealand models, which are among the
few countries with unicameral parliaments? The proposed changes
could not possibly refer to the traditional and well-known parliamentary
forms of government ― the British, French, Spanish, German, Italian,
Canadian, Australian, or Malaysian models, which have all bicameral
parliaments. Did the people who signed the signature sheets realize
that they were adopting the Bangladeshi, Singaporean, Israeli, or New
Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for
revisions of the Constitution but only for amendments. A shift from the
present Bicameral-Presidential to a Unicameral-Parliamentary system
requires harmonizing several provisions in many articles of the
Constitution. Revision of the Constitution through a people's initiative
will only result in gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's
initiative is a revision and not an amendment. Thus, the present
initiative is void and unconstitutional because it violates Section 2,
Article XVII of the Constitution limiting the scope of a people's initiative
to "[A]mendments to this Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the
basic requirements of Section 2, Article XVII of the Constitution on the
conduct and scope of a people's initiative to amend the Constitution.
There is no need to revisit this Court's ruling in Santiago declaring RA
6735 "incomplete, inadequate or wanting in essential terms and
conditions" to cover the system of initiative to amend the Constitution.
An affirmation or reversal of Santiago will not change the outcome of
the present petition. Thus, this Court must decline to revisit Santiago
which effectively ruled that RA 6735 does not comply with the
requirements of the Constitution to implement the initiative clause on
amendments to the Constitution.
215
This Court must avoid revisiting a ruling involving the constitutionality
of a statute if the case before the Court can be resolved on some other
grounds. Such avoidance is a logical consequence of the well-settled
doctrine that courts will not pass upon the constitutionality of a statute if
the case can be resolved on some other grounds.51
Nevertheless, even assuming that RA 6735 is valid to implement the
constitutional provision on initiatives to amend the Constitution, this will
not change the result here because the present petition violates
Section 2, Article XVII of the Constitution. To be a valid initiative, the
present initiative must first comply with Section 2, Article XVII of the
Constitution even before complying with RA 6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which
requires that the "petition for an initiative on the 1987 Constitution must
have at least twelve per centum (12%) of the total number of registered
voters as signatories." Section 5(b) of RA 6735 requires that the people
must sign the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006
or the amended petition of 30 August 2006 filed with the COMELEC.
Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C.
Agra signed the petition and amended petition as counsels for "Raul L.
Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the
Lambino Group, claiming to act "together with" the 6.3 million
signatories, merely attached the signature sheets to the petition and
amended petition. Thus, the petition and amended petition filed with
the COMELEC did not even comply with the basic requirement of RA
6735 that the Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of
RA 6735 stating, "No petition embracing more than one (1) subject
shall be submitted to the electorate; x x x." The proposed Section 4(4)
of the Transitory Provisions, mandating the interim Parliament to
propose further amendments or revisions to the Constitution, is a
subject matter totally unrelated to the shift in the form of government.
Since the present initiative embraces more than one subject matter,
RA 6735 prohibits submission of the initiative petition to the electorate.
Thus, even if RA 6735 is valid, the Lambino Group's initiative will still
fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in
Dismissing the Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en
banc merely followed this Court's ruling in Santiago and People's
Initiative for Reform, Modernization and Action (PIRMA) v.
COMELEC.52 For following this Court's ruling, no grave abuse of
discretion is attributable to the COMELEC. On this ground alone, the
present petition warrants outright dismissal. Thus, this Court should
reiterate its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of
discretion could be attributed to the public respondent COMELEC in
dismissing the petition filed by PIRMA therein, it appearing that it only
complied with the dispositions in the Decisions of this Court in G.R. No.
127325, promulgated on March 19, 1997, and its Resolution of June
10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the
utmost respect and obedience of all the citizens of this nation. No one
can trivialize the Constitution by cavalierly amending or revising it in
blatant violation of the clearly specified modes of amendment and
revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the
Constitution in unchartered waters, to be tossed and turned by every
dominant political group of the day. If this Court allows today a cavalier
change in the Constitution outside the constitutionally prescribed
modes, tomorrow the new dominant political group that comes will
demand its own set of changes in the same cavalier and
unconstitutional fashion. A revolving-door constitution does not augur
well for the rule of law in this country.
An overwhelming majority − 16,622,111 voters comprising 76.3
percent of the total votes cast53 − approved our Constitution in a
national plebiscite held on 11 February 1987. That approval is the
unmistakable voice of the people, the full expression of the people's
sovereign will. That approval included the prescribed modes for
amending or revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures
gathered by the Lambino Group, can change our Constitution contrary
to the specific modes that the people, in their sovereign capacity,
prescribed when they ratified the Constitution. The alternative is an
extra-constitutional change, which means subverting the people's
sovereign will and discarding the Constitution. This is one act the Court
cannot and should never do. As the ultimate guardian of the
Constitution, this Court is sworn to perform its solemn duty to defend
and protect the Constitution, which embodies the real sovereign will of
the people.

Incantations of "people's voice," "people's sovereign will," or "let the
people decide" cannot override the specific modes of changing the
Constitution as prescribed in the Constitution itself. Otherwise, the
Constitution ― the people's fundamental covenant that provides
enduring stability to our society ― becomes easily susceptible to
manipulative changes by political groups gathering signatures through
false promises. Then, the Constitution ceases to be the bedrock of the
nation's stability.
The Lambino Group claims that their initiative is the "people's voice."
However, the Lambino Group unabashedly states in ULAP Resolution
No. 2006-02, in the verification of their petition with the COMELEC,
that "ULAP maintains its unqualified support to the agenda of Her
Excellency President Gloria Macapagal-Arroyo for constitutional
reforms." The Lambino Group thus admits that their "people's" initiative
is an "unqualified support to the agenda" of the incumbent President to
change the Constitution. This forewarns the Court to be wary of
incantations of "people's voice" or "sovereign will" in the present
initiative.
This Court cannot betray its primordial duty to defend and protect the
Constitution. The Constitution, which embodies the people's sovereign
will, is the bible of this Court. This Court exists to defend and protect
the Constitution. To allow this constitutionally infirm initiative, propelled
by deceptively gathered signatures, to alter basic principles in the
Constitution is to allow a desecration of the Constitution. To allow such
alteration and desecration is to lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr.,
Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.
____________________
EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH
6,327,952 REGISTERED VOTERS V. COMMISSION ON ELECTIONS
ET AL.
SEPARATE CONCURRING OPINION
PANGANIBAN, CJ.:
Without the rule of law, there can be no lasting prosperity and certainly
no liberty.
Beverley McLachlin 1
Chief Justice of Canada
After a deep reflection on the issues raised and a careful evaluation of
the parties' respective arguments -- both oral and written -- as well as
the enlightened and enlightening Opinions submitted by my esteemed
colleagues, I am fully convinced that the present Petition must be
dismissed.
I write, however, to show that my present disposition is completely
consistent with my previous Opinions and votes on the two extant
Supreme Court cases involving an initiative to change the Constitution.
In my Separate Opinion in Santiago v. Comelec,2 I opined "that taken
together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), Republic Act 6735 and Comelec
Resolution 2300 provide more than sufficient
__________________
'SEC. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.'
"With all due respect, I find the majority's position all too sweeping and
all too extremist. It is equivalent to burning the whole house to
exterminate the rats, and to killing the patient to relieve him of pain.
What Citizen Delfin wants the Comelec to do we should reject. But we
should not thereby preempt any future effort to exercise the right of
initiative correctly and judiciously. The fact that the Delfin Petition
proposes a misuse of initiative does not justify a ban against its proper
use. Indeed, there is a right way to do the right thing at the right time
and for the right reason.
Taken Together and Interpreted Properly,
216
the Constitution, R.A. 6735 and Comelec Resolution
2300 Are Sufficient to Implement Constitutional Initiatives
"While R.A. 6735 may not be a perfect law, it was — as the majority
openly concedes — intended by the legislature to cover and, I
respectfully submit, it contains enough provisions to effectuate an
initiative on the Constitution. I completely agree with the inspired and
inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice
Ricardo J. Francisco that RA 6735, the Roco law on initiative,
sufficiently implements the right of the people to initiate amendments to
the Constitution. Such views, which I shall no longer repeat nor
elaborate on, are thoroughly consistent with this Court's unanimous en
banc rulings in Subic Bay Metropolitan Authority vs. Commission on
Elections, that "provisions for initiative . . . are (to be) liberally
construed to effectuate their purposes, to facilitate and not hamper the
exercise by the voters of the rights granted thereby"; and in Garcia vs.
Comelec, that any "effort to trivialize the effectiveness of people's
initiatives ought to be rejected."
"No law can completely and absolutely cover all administrative details.
In recognition of this, R.A. 6735 wisely empowered the Commission on
Election "to promulgate such rules and regulations as may be
necessary to carry out the purposes of this Act." And pursuant thereto,
the Comelec issued its Resolution 2300 on 16 January 1991. Such
Resolution, by its very words, was promulgated "to govern the conduct
of initiative on the Constitution and initiative and referendum on
national and local laws," not by the incumbent Commission on
Elections but by one then composed of Acting Chairperson Haydee B.
Yorac, Comms. Alfredo
authority to implement, effectuate and realize our people's power to
amend the Constitution."
__________________
E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama
and Magdara B. Dimaampao. All of these Commissioners who signed
Resolution 2300 have retired from the Commission, and thus we
cannot ascribe any vile motive unto them, other than an honest,
sincere and exemplary effort to give life to a cherished right of our
people.
"The majority argues that while Resolution 2300 is valid in regard to
national laws and local legislations, it is void in reference to
constitutional amendments. There is no basis for such differentiation.
The source of and authority for the Resolution is the same law, R.A.
6735.
"I respectfully submit that taken together and interpreted properly and
liberally, the Constitution (particularly Art. XVII, Sec. 2), R.A. 6735 and
Comelec Resolution 2300 provide more than sufficient authority to
implement, effectuate and realize our people's power to amend the
Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
"I am glad the majority decided to heed our plea to lift the temporary
restraining order issued by this Court on 18 December 1996 insofar as
it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising
their right of initiative. In fact, I believe that such restraining order as
against private respondents should not have been issued, in the first
place. While I agree that the Comelec should be stopped from using
public funds and government resources to help them gather
signatures, I firmly believe that this Court has no power to restrain
them from exercising their right of initiative. The right to propose
amendments to the Constitution is really a species of the right of free
speech and free assembly. And certainly, it would be tyrannical and
despotic to stop anyone from speaking freely and persuading others to
conform to his/her beliefs. As the eminent Voltaire once said, 'I may
disagree with what you say, but I will defend to the death your right to
say it.' After all, freedom is not really for the thought we agree with, but
as Justice Holmes wrote, 'freedom for the thought that we hate.'
Epilogue
"By way of epilogue, let me stress the guiding tenet of my Separate
Opinion. Initiative, like referendum and recall, is a new and treasured
feature of the Filipino constitutional system. All three are
institutionalized legacies of the world-admired EDSA people power.
Like elections and plebiscites, they are hallowed expressions of
popular sovereignty. They are sacred democratic rights of our people
to be used as
Six months after, in my Separate Opinion in People's Initiative for
Reform, Modernization and Action (PIRMA) v. Comelec,3 I joined the
rest of the members of the Court in ruling "by a unanimous vote, that
no grave abuse of discretion could be attributed to the Comelec in
dismissing the petition filed by
__________________
Constitution x x x." While concededly, petitioners in this case were not
direct parties in Santiago, nonetheless the Court's injunction against
the Comelec covered ANY petition, not just the Delfin petition which
was the immediate subject of said case. As a dissenter in Santiago, I
believed, and still do, that the majority gravely erred in rendering such
a sweeping injunction, but I cannot fault the Comelec for complying
with the ruling even if it, too, disagreed with said decision's ratio
decidendi. Respondent Comelec was directly enjoined by the highest
Court of the land. It had no choice but to obey. Its obedience cannot
constitute grave abuse of discretion. Refusal to act on the PIRMA
petition was the only recourse open to the Comelec. Any other mode of
action would have constituted defiance of the Court and would have
been struck down as grave abuse of discretion and contumacious
disregard of this Court's supremacy as the final arbiter of justiciable
controversies.
Second Issue:
Sufficiency of RA 6735
"I repeat my firm legal position that RA 6735 is adequate to cover
initiatives on the Constitution, and that whatever administrative details
may have been omitted in said law are satisfactorily provided by
Comelec Resolution 2300. The promulgation of Resolution 2300 is
sanctioned by Section 2, Article IX-C of the Constitution, which vests
upon the Comelec the power to "enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall." The Omnibus Election Code likewise
empowers the electoral body to "promulgate rules and regulations
implementing the provisions of this Code or other laws which the
Commission is required to enforce and administer x x x." Finally and
most relevantly, Section 20 of Ra 6735 specifically authorizes Comelec
"to promulgate rules and regulations as may be necessary to carry out
the purposes of this Act."
"In my dissent in Santiago, I wrote that "there is a right way to do the
right thing at the right time and for the right reason." Let me explain
further.
The Right Thing
"A people's initiative is direct democracy in action. It is the right thing
that citizens may avail themselves of to articulate their will. It is a new
and treasured feature of the Filipino constitutional system. Even the
majority implicitly conceded its value and worth in our legal firmament
when it implored Congress "not to tarry any longer in complying with
the constitutional mandate to provide for implementation of the right (of
initiative) of the people x x x." Hence, in the en banc case of Subic Bay
Metropolitan Authority vs. Comelec, [G.R. No. 125416, September 26,
1996], this Court unanimously held that "(l)ike elections, initiative and
referendum are powerful and valuable modes of expressing popular
PIRMA therein," since the Commission had "only complied" with the
Santiago Decision.
__________________
sovereignty. And this Court as a matter of policy and doctrine will exert
every effort to nurture, protect and promote their legitimate exercise."
The Right Way
"From the outset, I have already maintained the view that "taken
together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), RA 6735 and Comelec Resolution 2300
provide more than sufficient authority to implement, effectuate and
realize our people's power to amend the Constitution." Let me now
demonstrate the adequacy of RA 6735 by outlining, in concrete terms,
the steps to be taken – the right way – to amend the Constitution
through a people's initiative.
"Pursuant to Section 3(f) of the law, the Comelec shall prescribe the
form of the petition which shall contain the proposition and the required
number of signatories. Under Sec. 5(c) thereof, the petition shall state
the following:
'c.1 contents or text of the [provision or provisions] sought to be x x x
amended, x x x;
c.2 the proposition [in full text];
c.3 the reason or reasons therefor [fully and clearly explained];
c.4 that it is not one of exceptions provided herein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition in not more than one hundred
(100) words which shall be legibly written or printed at the top of every
page of the petition.'
"Section 8(f) of Comelec Resolution 2300 additionally requires that the
petition include a formal designation of the duly authorized
representatives of the signatories.
217
"Being a constitutional requirement, the number of signatures becomes
a condition precedent to the filing of the petition, and is jurisdictional.
Without such requisite signatures, the Commission shall motu proprio
reject the petition.
"Where the initiators have substantially complied with the above
requirements, they may thence file the petition with the Comelec which
is tasked to determine the sufficiency thereof and to verify the
signatures on the basis of the registry list of voters, voters' affidavits
and voters' identification cards. In deciding whether the petition is
sufficient, the Comelec shall also determine if the proposition is proper
for an initiative, i.e., if it consists of an amendment, not a revision, of
the Constitution. Any decision of the electoral body may be appealed to
the Supreme Court within thirty (30) days from notice.
I added "that my position upholding the adequacy of RA 6735 and the
validity of Comelec Resolution 2300 will not ipso
__________________
"Within thirty (30) days from receipt of the petition, and after the
determination of its sufficiency, the Comelec shall publish the same in
Filipino and English at least twice in newspapers of general and local
circulation, and set the date of the plebiscite. The conduct of the
plebiscite should not be earlier than sixty (60) days, but not later than
ninety (90) days after certification by the Comelec of the sufficiency of
the petition. The proposition, if approved by a majority of the votes cast
in the plebiscite, becomes effective as of the day of the plebiscite.
"From the foregoing, it should be clear that my position upholding the
adequacy of RA 6735 and the validity of Comelec Resolution 2300 will
not ipso facto validate the PIRMA petition and automatically lead to a
plebiscite to amend the Constitution. Far from it. Among others, PIRMA
must still satisfactorily hurdle the following searching issues:
1. Does the proposed change – the lifting of the term limits of elective
officials -- constitute a mere amendment and not a revision of the
Constitution?
2. Which registry of voters will be used to verify the signatures in the
petition? This question is relevant considering that under RA 8189, the
old registry of voters used in the 1995 national elections was voided
after the barangay elections on May 12, 1997, while the new list may
be used starting only in the elections of May 1998.
3. Does the clamor for the proposed change in the Constitution really
emanate from the people who signed the petition for initiative? Or it is
the beneficiaries of term extension who are in fact orchestrating such
move to advance their own political self-interest?
4. Are the six million signatures genuine and verifiable? Do they really
belong to qualified warm bodies comprising at least 12% of the
registered voters nationwide, of which every legislative district is
represented by at least 3% of the registered voters therein?
"I shall expound on the third question in the next section, The Right
Reason. Question Nos. 1 and 2 above, while important, are basically
legal in character and can be determined by argumentation and
memoranda. However, Question No. 4 involves not only legal issues
but gargantuan hurdles of factual determination. This to my mind is the
crucible, the litmus test, of a people's petition for initiative. If herein
petitioners, led by PIRMA, succeed in proving -- not just alleging -- that
six million voters of this country indeed want to amend the Constitution,
what power on earth can stop them? Not this Court, not the Comelec,
not even the President or Congress.
facto validate the PIRMA petition and automatically lead to a plebiscite
to amend the Constitution. Far from it." I stressed that PIRMA must
show the following, among others:
__________________
"It took only one million people to stage a peaceful revolution at EDSA,
and the very rafters and foundations of the martial law society
trembled, quaked and crumbled. On the other hand, PIRMA and its co-
petitioners are claiming that they have gathered six million signatures.
If, as claimed by many, these six million signatures are fraudulent, then
let them be exposed and damned for all history in a signature-
verification process conducted under our open system of legal
advocacy.
"More than anything else, it is the truth that I, as a member of this
Court and as a citizen of this country, would like to seek: Are these six
million signatures real? By insisting on an entirely new doctrine of
statutory inadequacy, the majority effectively suppressed the quest for
that truth.
The Right Reason
"As mentioned, the third question that must be answered, even if the
adequacy of RA 6735 and the validity of Comelec Resolution 2300
were upheld by the majority is: Does the clamor for the proposed
change to the Constitution really emanate from the people who signed
the petition for initiative? Or is it the beneficiaries of term extension
who are in fact orchestrating such move to advance their own political
self-interests? In other words, is PIRMA's exercise of the right to
initiative being done in accordance with our Constitution and our laws?
Is such attempted exercise legitimate?
"In Garcia vs. Commission on Elections, we described initiative, along
with referendum, as the 'ultimate weapon of the people to negate
government malfeasance and misfeasance.' In Subic Bay, we specified
that 'initiative is entirely the work of the electorate x x x a process of
lawmaking by the people themselves without the participation and
against the wishes of their elected representatives.' As ponente of
Subic Bay, I stand foursquare on this principle: The right to amend
through initiative belongs only to the people – not to the government
and its minions. This principle finds clear support from utterances of
many constitutional commissioners like those quoted below:
"[Initiative is] a reserve power of the sovereign people, when they are
dissatisfied with the National Assembly x x x [and] precisely a fallback
position of the people in the event that they are dissatisfied." --
Commissioner Ople
"[Initiative is] a check on a legislative that is not responsive [and
resorted to] only if the legislature is not as responsive to the vital and
urgent needs of people." -- Commissioner Gascon
(1) The proposed change -- the lifting of term limits of elective officials -
- "constitute[s] a mere amendment and not a revision of the
Constitution."
_________________
"[Initiative is an] extraordinary power given to the people [and] reserved
for the people [which] should not be frivolously resorted to." --
Commissioner Romulo
"Indeed, if the powers-that-be desire to amend the Constitution, or
even to revise it, our Charter itself provides them other ways of doing
so, namely, by calling a constitutional convention or constituting
Congress into a constituent assembly. These are officialdom's
weapons. But initiative belongs to the people.
"In the present case, are PIRMA and its co-petitioners legitimate
people's organizations or are they merely fronts for incumbents who
want to extend their terms? This is a factual question which,
unfortunately, cannot be judicially answered anymore, because the
Supreme Court majority ruled that the law that implements it, RA 6735,
is inadequate or insufficient insofar as initiatives to the Constitutions
are concerned. With such ruling, the majority effectively abrogated a
constitutional right of our people. That is why in my Separate Opinion
in Santiago, I exclaimed that such precipitate action "is equivalent to
burning the whole house to exterminate the rats, and to killing the
patient to relieve him of pain." I firmly maintain that to defeat PIRMA's
effort, there is no need to "burn" the constitutional right to initiative. If
PIRMA's exercise is not "legitimate," it can be exposed as such in the
ways I have discussed – short of abrogating the right itself. On the
other hand, if PIRMA's position is proven to be legitimate – if it hurdles
the four issues I outlined earlier – by all means, we should allow and
encourage it. But the majority's theory of statutory inadequacy has pre-
empted – unnecessarily and invalidly, in my view – any judicial
determination of such legitimacy or illegitimacy. It has silenced the
quest for truth into the interstices of the PIRMA petition.
The Right Time
"The Constitution itself sets a time limitation on when changes thereto
may be proposed. Section 2 of Article XVII precludes amendments
"within five years following [its] ratification x x x nor oftener than once
every five years thereafter." Since its ratification, the 1987 Constitution
has never been amended. Hence, the five-year prohibition is now
inoperative and amendments may theoretically be proposed at any
time.
"Be that as it may, I believe – given the present circumstances – that
there is no more time to lift term limits to enable incumbents to seek
reelection in the May 11, 1998 polls. Between today and the next
national
(2) The "six million signatures are genuine and verifiable"; and they
"really belong to qualified warm bodies comprising at
__________________
elections, less than eight (8) months remain. Santiago, where the
single issue of the sufficiency of RA 6735 was resolved, took this Court
three (3) months, and another two (2) months to decide the motion for
reconsideration. The instant case, where the same issue is also raised
by the petitioners, took two months, not counting a possible motion for
reconsideration. These time spans could not be abbreviated any
further, because due process requires that all parties be given
sufficient time to file their pleadings.
218
"Thus, even if the Court were to rule now in favor of the adequacy of
RA 6735 – as I believe it should – and allow the Comelec to act on the
PIRMA petition, such eight-month period will not be enough to tackle
the four weighty issues I mentioned earlier, considering that two of
them involve tedious factual questions. The Comelec's decision on any
of these issues can still be elevated to this Court for review, and
reconsiderations on our decisions on each of those issues may again
be sought.
"Comelec's herculean task alone of verifying each of the six million
signatures is enormously time-consuming, considering that any person
may question the authenticity of each and every signature, initially
before the election registrar, then before the Comelec on appeal and
finally, before this Court in a separate proceeding. Moreover, the
plebiscite itself – assuming such stage can be reached – may be
scheduled only after sixty (60) but not more than ninety (90) days, from
the time the Comelec and this Court, on appeal, finally declare the
petition to be sufficient.
"Meanwhile, under Comelec Resolution 2946, political parties, groups
organizations or coalitions may start selecting their official candidates
for President, Vice President and Senators on November 27, 1997; the
period for filing certificates of candidacy is from January 11 to February
9, 1998; the election period and campaign for national officials start on
February 10, 1998, while the campaign period for other elective
officials, on March 17, 1998. This means, by the time PIRMA's
proposition is ready – if ever – for submission directly to the voters at
large, it will have been overcome by the elections. Time will simply run
out on PIRMA, if the intention is to lift term limits in time for the 1998
elections.
"That term limits may no longer be lifted prior to the 1998 elections via
a people's initiative does not detract one whit from (1) my firm
conviction that RA 6735 is sufficient and adequate to implement this
constitutional right and, more important, (2) my faith in the power of the
people to initiate changes in local and national laws and the
Constitution. In fact, I think the Court can deliberate on these two items
even more serenely and wisely now that the debates will be free from
the din and distraction of the 1998 elections. After all, jurisprudence is
not merely for the here and now but, more so, for the hereafter and the
morrow. Let me therefore stress, by way of epilogue, my unbending
credo in favor of our people's right to initiative.
least 12% of the registered voters nationwide, of which every
legislative district is represented by at least 3% of the registered voters
therein."
__________________
Epilogue
"I believe in democracy – in our people's natural right to determine our
own destiny.
"I believe in the process of initiative as a democratic method of
enabling our people to express their will and chart their history.
Initiative is an alternative to bloody revolution, internal chaos and civil
strife. It is an inherent right of the people – as basic as the right to
elect, the right to self-determination and the right to individual liberties.
I believe that Filipinos have the ability and the capacity to rise above
themselves, to use this right of initiative wisely and maturely, and to
choose what is best for themselves and their posterity.
"Such beliefs, however, should not be equated with a desire to
perpetuate a particular official or group of officials in power. Far from it.
Such perpetuation is anathema to democracy. My firm conviction that
there is an adequate law implementing the constitutional right of
initiative does not ipso facto result in the victory of the PIRMA petition
or of any proposed constitutional change. There are, after all, sufficient
safeguards to guarantee the proper use of such constitutional right and
to forestall its misuse and abuse. First, initiative cannot be used to
revise the Constitution, only to amend it. Second, the petitioners'
signatures must be validated against an existing list of voters and/or
voters' identification cards. Third, initiative is a reverse power of and by
the people, not of incumbent officials and their machinators. Fourth and
most important of all, the signatures must be verified as real and
genuine; not concocted, fictitious or fabricated. The only legal way to
do this is to enable the Commission on Elections to conduct a
nationwide verification process as mandated by the Constitution and
the law. Such verification, it bears stressing, is subject to review by this
Court.
"There were, by the most generous estimate, only a million people who
gathered at EDSA in 1986, and yet they changed the history of our
country. PIRMA claims six times that number, not just from the
National Capital Region but from all over the country. Is this claim
through the invention of its novel theory of statutory insufficiency, the
Court's majority has stifled the only legal method of determining
whether PIRMA is real or not, whether there is indeed a popular clamor
to lift term limits of elected officials, and whether six million voters want
to initiate amendments to their most basic law. In suppressing a judicial
answer to such questions, the Court may have unwittingly yielded to
PIRMA the benefit of the legal presumption of legality and regularity. In
its misplaced zeal to exterminate the rats, it burned down the whole
house. It unceremoniously divested the people of a basic constitutional
right.
In both Opinions, I concluded that we must implement "the right thing
[initiative] in the right way at the right time and for the right reason."
In the present case, I steadfastly stand by my foregoing Opinions in
Santiago and PIRMA. Tested against them, the present Petition of
Raul Lambino and Erico Aumentado must be DISMISSED.
Unfortunately, the right thing is being rushed in the wrong way and for
the wrong reasons. Let me explain.
No Grave Abuse
of Discretion by Comelec
As in PIRMA, I find no grave abuse of discretion in Comelec's
dismissal of the Lambino Petition. After all, the Commission merely
followed the holding in Santiago permanently
____________________
"In the ultimate, the mission of the judiciary is to discover truth and to
make it prevail. This mission is undertaken not only to resolve the
vagaries of present events but also to build the pathways of tomorrow.
The sum total of the entire process of adversarial litigation is the verity
of facts and the application of law thereto. By the majority cop-out in
this mission of discovery, our country and our people have been
deprived not only of a basic constitutional right, as earlier noted, but
also of the judicial opportunity to verify the truth."
enjoining the poll body "from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation
of the system."
Indeed, the Comelec did not violate the Constitution, the laws or any
jurisprudence.4 Neither can whim, caprice, arbitrariness or personal
bias be attributed to the Commission.5 Quite the contrary, it prudently
followed this Court's jurisprudence in Santiago and PIRMA. Even
assuming arguendo that Comelec erred in ruling on a very difficult and
unsettled question of law, this Court still cannot attribute grave abuse
of discretion to the poll body with respect to that action.6
The present Lambino Petition is in exactly the same situation as that of
PIRMA in 1997. The differences pointed out by Justice Reynato S.
Puno are, with due respect, superficial. It is argued that, unlike the
present Lambino Petition, PIRMA did not contain verified signatures.
These are distinctions that do not make a difference. Precisely, Justice
Puno is urging a remand, because the verification issue is
"contentious" and remains unproven by petitioners. Clearly, both the
PIRMA and the Lambino Petitions contain unverified signatures.
Therefore, they both deserve the same treatment: DISMISSAL.
Besides, the only reason given in the unanimous Resolution on PIRMA
v. Comelec was that the Commission had "only complied" with this
Court's Decision in Santiago, the same reason given by Comelec in
this case. The Separate Opinions in PIRMA gave no other reason. No
one argued, even remotely, that the PIRMA Petition should have been
dismissed because the signatures were unverified.
To stress, I adhere to my Opinion in PIRMA that, "[b]eing a
constitutional requirement, the number of signatures becomes a
condition precedent to the filing of the petition, and is jurisdictional.7
Without those signatures, the Comelec shall motu proprio reject the
petition."
So, until and unless Santiago is revisited and changed by this Court or
the legal moorings of the exercise of the right are substantially
changed, the Comelec cannot be faulted for acting in accord with this
Court's pronouncements. Respondent Commission has no discretion,
under any guise, to refuse enforcement of any final decision of this
Court.8 The refusal of the poll body to act on the Lambino Petition was
its only recourse. Any other mode of action would appear not only
presumptuous, but also contemptuous. It would have constituted
defiance of the Court and would have surely been struck down as
grave abuse of discretion and contumacious disregard of the
supremacy of this Court as the final arbiter of justiciable controversies.
Even assuming further that this Court rules, as I believe it should (for
the reasons given in my Opinions in Santiago and PIRMA), that
Republic Act 6735 is indeed sufficient to implement an initiative to
amend the Constitution, still, no grave abuse of discretion can be
attributed to the Comelec for merely following prevailing jurisprudence
extant at the time it rendered its ruling in question.
Only Amendments,
Not Revisions
219
I reiterate that only amendments, not revisions, may be the proper
subject of an initiative to change the Constitution. This principle is
crystal clear from even a layperson's reading of the basic law.9
I submit that changing the system of government from presidential to
parliamentary and the form of the legislature from bicameral to
unicameral contemplates an overhaul of the structure of government.
The ponencia has amply demonstrated that the merger of the
legislative and the executive branches under a unicameral-
parliamentary system, "[b]y any legal test and under any jurisdiction,"
will "radically alter the framework of government as set forth in the
Constitution." Indeed, the proposed changes have an overall
implication on the entire Constitution; they effectively rewrite its most
important and basic provisions. The prolixity and complexity of the
changes cannot be categorized, even by semantic generosity, as
"amendments."
In addition, may I say that of the three modes of changing the
Constitution, revisions (or amendments) may be proposed only through
the first two: by Congress or by a constitutional convention. Under the
third mode -- people's initiative -- only amendments are allowed. Many
of the justices' Opinions have cited the historical, philosophical and
jurisprudential bases of their respective positions. I will not add to the
woes of the reader by reiterating them here.
Suffice it to say that, to me, the practical test to differentiate an
amendment from a revision is found in the Constitution itself: a revision
may be done only when the proposed change can be drafted, defined,
articulated, discussed and agreed upon after a mature and democratic
debate in a deliberative body like Congress or a Convention. The
changes proposed must necessarily be scrutinized, as their adoption or
non-adoption must result from an informed judgment.
Indeed, the constitutional bodies that drafted the 1935, the 1972 and
the 1987 Constitutions had to spend many months of purposeful
discussions, democratic debates and rounds of voting before they
could agree on the wordings covering the philosophy, the underlying
principles, and the structure of government of our Republic.
Verily, even bills creating or changing the administrative structure of
local governments take several weeks or even months of drafting,
reading, and debating before Congress can approve them. How much
more when it comes to constitutional changes?
A change in the form of government of our country from presidential-
bicameral to parliamentary-unicameral is monumental. Even the
initiative proponents admit this fact. So, why should a revision be
rammed down our people's throats without the benefit of intelligent
discussion in a deliberative assembly?
Added to the constitutional mandate barring revisions is the provision
of RA 6735 expressly prohibiting petitions for initiative from "embracing
more than one subject matter."10 The present initiative covers at least
two subjects: (1) the shift from a presidential to a parliamentary form of
government; and (2) the change from a bicameral to a unicameral
legislature.11 Thus, even under Republic Act 6735 -- the law that
Justice Puno and I hold to be sufficient and valid -- the Lambino
Petition deserves dismissal.
12 Percent and 3 Percent Thresholds
Not Proven by Petitioners
The litmus test of a people's petition for initiative is its ability to muster
the constitutional requirement that it be supported by at least 12
percent of the registered voters nationwide, of which at least 3 percent
of the registered voters in every legislative district must be
represented. As pointed out by Intervenors One Voice, Inc., et al.,
however, records show that there was a failure to meet the minimum
percentages required.12
Even Justice Puno concedes that the 12 percent and 3 percent
constitutional requirements involve "contentious facts," which have not
been proven by the Lambino Petition. Thus, he is urging a remand to
the Comelec.
But a remand is both imprudent and futile. It is imprudent because the
Constitution itself mandates the said requisites of an initiative petition.
In other words, a petition that does not show the required percentages
is fatally defective and must be dismissed, as the Delfin Petition was, in
Santiago.
Furthermore, as the ponencia had discussed extensively, the present
Petition is void and unconstitutional. It points out that the Petition
dismally fails to comply with the constitutional requirement that an
initiative must be directly proposed by the people. Specifically, the
ponencia has amply established that petitioners were unable to show
that the Lambino Petition contained, or incorporated by attachment, the
full text of the proposed changes.
So, too, a remand is futile. Even if the required percentages are proven
before the Commission, the Petition must still be dismissed for
proposing a revision, not an amendment, in gross violation of the
Constitution. At the very least, it proposes more than one subject, in
violation of Republic Act 6735.
Summation
Petitioners plead with this Court to hear the voice of the people
because, in the words of Justice Puno who supports them, the
"people's voice is sovereign in a democracy."
I, too, believe in heeding the people's voice. I reiterate my Separate
Opinion in PIRMA that "initiative is a democratic method of enabling
our people to express their will and chart their history. x x x. I believe
that Filipinos have the ability and the capacity to rise above
themselves, to use this right of initiative wisely and maturely, and to
choose what is best for themselves and their posterity."
This belief will not, however, automatically and blindly result in an
initiative to change the Constitution, because the present Petition
violates the following:
· The Constitution (specifically Article XVII, which allows only
amendments, not revisions, and requires definite percentages of
verified signatures)
· The law (specifically, Republic Act 6735, which prohibits petitions
containing more than one subject)
· Jurisprudence (specifically, PIRMA v. Comelec, which dismissed the
Petition then under consideration on the ground that, by following the
Santiago ruling, the Comelec had not gravely abused its discretion).
I submit further that a remand of the Lambino Petition is both
imprudent and futile. More tellingly, it is a cop-out, a hand-washing
already discredited 2000 years ago. Instead of finger-pointing, I believe
we must confront the issues head on, because the people expect no
less from this august and venerable institution of supreme justice.
Epilogue
At bottom, the issue in this case is simply the Rule of Law.13 Initiative,
like referendum and recall, is a treasured feature of the Filipino
constitutional system. It was born out of our world-admired and often-
imitated People Power, but its misuse and abuse must be resolutely
rejected. Democracy must be cherished, but mob rule vanquished.
The Constitution is a sacred social compact, forged between the
government and the people, between each individual and the rest of
the citizenry. Through it, the people have solemnly expressed their will
that all of them shall be governed by laws, and their rights limited by
agreed-upon covenants to promote the common good. If we are to
uphold the Rule of Law and reject the rule of the mob, we must
faithfully abide by the processes the Constitution has ordained in order
to bring about a peaceful, just and humane society. Assuming
arguendo that six million people allegedly gave their assent to the
proposed changes in the Constitution, they are nevertheless still bound
by the social covenant -- the present Constitution -- which was ratified
by a far greater majority almost twenty years ago.14 I do not denigrate
the majesty of the sovereign will; rather, I elevate our society to the
loftiest perch, because our government must remain as one of laws
and not of men.
Upon assuming office, each of the justices of the Supreme Court took
a solemn oath to uphold the Constitution. Being the protectors of the
fundamental law as the highest expression of the sovereign will, they
must subject to the strictest scrutiny any attempt to change it, lest it be
trivialized and degraded by the assaults of the mob and of ill-conceived
designs. The Court must single-mindedly defend the Constitution from
bogus efforts falsely attributed to the sovereign people.
The judiciary may be the weakest branch of government. Nonetheless,
when ranged against incessant voices from the more powerful
branches of government, it should never cower in submission. On the
other hand, I daresay that the same weakness of the Court becomes
its strength when it speaks independently through decisions that
rightfully uphold the supremacy of the Constitution and the Rule of
Law. The strength of the judiciary lies not in its lack of brute power, but
in its moral courage to perform its constitutional duty at all times
against all odds. Its might is in its being right.15
During the past weeks, media outfits have been ablaze with reports
and innuendoes about alleged carrots offered and sticks drawn by
those interested in the outcome of this case.16 There being no judicial
proof of these allegations, I shall not comment on them for the nonce,
except to quote the Good Book, which says, "There is nothing hidden
that will not be revealed, and nothing secret that will not be known and
come to light."17
Verily, the Supreme Court is now on the crossroads of history. By its
decision, the Court and each of its members shall be judged by
posterity. Ten years, fifty years, a hundred years -- or even a thousand
years -- from now, what the Court did here, and how each justice
opined and voted, will still be talked about, either in shame or in pride.
220
Indeed, the hand-washing of Pontius Pilate, the abomination of Dred
Scott, and the loathing of Javellana still linger and haunt to this day.
Let not this case fall into the same damnation. Rather, let this Court be
known throughout the nation and the world for its independence,
integrity, industry and intelligence.
WHEREFORE, I vote to DISMISS the Petition.
ARTEMIO V. PANGANIBAN
Chief Justice
____________________
EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with
6,327,952 REGISTERED VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, ET AL., Respondents.
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.
Q. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN
S. ABALOS, JR. and Commissioners RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
SARMIENTO, and John Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
YNARES-SANTIAGO, J.:
I agree with the opinion of our esteemed colleague, Justice Reynato
Puno, that the Court's ruling in Santiago v. COMELEC1 is not a binding
precedent. However, it is my position that even if Santiago were
reversed and Republic Act No. 6735 (R.A. 6735) be held as sufficient
law for the purpose of people's initiative to amend the Constitution, the
petition for initiative in this case must nonetheless be dismissed.
There is absolutely no showing here that petitioners complied with R.A.
6735, even as they blindly invoke the said law to justify their alleged
people's initiative. Section 5(b) of R.A. 6735 requires that "[a] petition
for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories, of
which every legislative district must be represented by at least three
per centum (3%) of the registered voters therein." On the other hand,
Section 5(c)2 of the same law requires that the petition should state,
among others, the proposition3 or the "contents or text of the proposed
law sought to be enacted, approved or rejected, amended or repealed."
If we were to apply Section 5(c) to an initiative to amend the
Constitution, as petitioners submit, the petition for initiative signed by
the required number of voters should incorporate therein a text of the
proposed changes to the Constitution. However, such requirement was
not followed in the case at bar.
During the oral arguments, petitioner Lambino admitted that they
printed a mere 100,000 copies of the text of the proposed changes to
the Constitution. According to him, these were subsequently distributed
to their agents all over the country, for attachment to the sheets of
paper on which the signatures were to be affixed. Upon being asked,
however, if he in fact knew whether the text was actually attached to
the signature sheets which were distributed for signing, he said that he
merely assumed that they were. In other words, he could not tell the
Court for certain whether their representatives complied with this
requirement.
The petition filed with the COMELEC, as well as that which was shown
to this Court, indubitably establish that the full text of the proposed
changes was not attached to the signature sheets. All that the
signature sheets contained was the general proposition and abstract,
which falls short of the full text requirement of R.A. 6735.
The necessity of setting forth the text of the proposed constitutional
changes in the petition for initiative to be signed by the people cannot
be seriously disputed. To begin with, Article XVII, Section 2 of the
Constitution unequivocally states that "[a]mendments to this
Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters
therein." Evidently, for the people to propose amendments to the
Constitution, they must, in the first instance, know exactly what they
are proposing. It is not enough that they merely possess a general idea
of the proposed changes, as the Constitution speaks of a "direct"
proposal by the people.
Although the framers of the Constitution left the matter of implementing
the constitutional right of initiative to Congress, it might be noted that
they themselves reasonably assumed that the draft of the proposed
constitutional amendments would be shown to the people during the
process of signature gathering. Thus –
MR. RODRIGO. Section 2 of the complete committee report provides:
"upon petition of at least 10 percent of the registered voters." How will
we determine that 10 percent has been achieved? How will the voters
manifest their desire, is it by signature?
MR. SUAREZ. Yes, by signatures.
MR. RODRIGO. Let us look at the mechanics. Let us say some voters
want to propose a constitutional amendment. Is the draft of the
proposed constitutional amendment ready to be shown to the people
when they are asked to sign?
MR. SUAREZ. That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and
shown to them before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.4
It may thus be logically assumed that even without Section 5(c) of R.A.
6735, the full text of the proposed changes must necessarily be stated
in or attached to the initiative petition. The signatories to the petition
must be given an opportunity to fully comprehend the meaning and
effect of the proposed changes to enable them to make a free,
intelligent and well-informed choice on the matter.
Needless to say, the requirement of setting forth the complete text of
the proposed changes in the petition for initiative is a safeguard against
fraud and deception. If the whole text of the proposed changes is
contained in or attached to the petition, intercalations and riders may
be duly avoided. Only then can we be assured that the proposed
changes are truly of the people and that the signatories have been fully
apprised of its implications.
If a statutory provision is essential to guard against fraud, corruption or
deception in the initiative and referendum process, such provision must
be viewed as an indispensable requirement and failure to substantially
comply therewith is fatal.5 The failure of petitioners in this case to
comply with the full text requirement resultantly rendered their petition
for initiative fatally defective.
The petition for initiative is likewise irretrievably infirm because it
violates the one subject rule under Section 10(a) of R.A. 6735:
SEC. 10. Prohibited Measures.— The following cannot be the subject
of an initiative or referendum petition:
(a) No petition embracing more than one subject shall be submitted to
the electorate; x x x
The one subject rule, as relating to an initiative to amend the
Constitution, has the same object and purpose as the one subject-one
bill rule embodied in Article VI, Section 26(1)6 of the Constitution.7 To
elaborate, the one subject-one bill rule was designed to do away with
the practice of inserting two or more unrelated provisions in one bill, so
that those favoring one provision would be compelled to adopt the
others. By this process of log-rolling, the adoption of both provisions
could be accomplished and ensured, when neither, if standing alone,
could succeed on its own merits.
As applied to the initiative process, the one subject rule is essentially
designed to prevent surprise and fraud on the electorate. It is meant to
safeguard the integrity of the initiative process by ensuring that no
unrelated riders are concealed within the terms of the proposed
amendment. This in turn guarantees that the signatories are fully
aware of the nature, scope and purpose of the proposed amendment.
Petitioners insist that the proposed changes embodied in their petition
for initiative relate only to one subject matter, that is – the shift from
presidential to a parliamentary system of government. According to
petitioners, all of the other proposed changes are merely incidental to
this main proposal and are reasonably germane and necessary
thereto.8 An examination of the text of the proposed changes reveals,
however, that this is not the case.
The proposed changes to the Constitution cover other subjects that are
beyond the main proposal espoused by the petitioners. Apart from a
shift from the presidential to a parliamentary form of government, the
proposed changes include the abolition of one House of Congress,9
and the convening of a constituent assembly to propose additional
amendments to the Constitution.10 Also included within its terms is an
omnibus declaration that those constitutional provisions under Articles
VI and VII, which are inconsistent with the unicameral-parliamentary
form of government, shall be deemed amended to conform thereto.
It is not difficult to see that while the proposed changes appear to
relate only to a shift in the form of government, it actually seeks to
221
affect other subjects that are not reasonably germane to the
constitutional alteration that is purportedly sought. For one, a shift to a
parliamentary system of government does not necessarily result in the
adoption of a unicameral legislature. A parliamentary system can exist
in many different "hybrid" forms of government, which may or may not
embrace unicameralism.11 In other words, the shift from presidential to
parliamentary structure and from a bicameral to a unicameral
legislature is neither the cause nor effect of the other.
I also fail to see the relation of convening a constituent assembly with
the proposed change in our system of government. As a subject
matter, the convening of a constituent assembly to amend the
Constitution presents a range of issues that is far removed from the
subject of a shift in government. Besides, the constituent assembly is
supposed to convene and propose amendments to the Constitution
after the proposed change in the system of government has already
taken place. This only goes to show that the convening of the
constituent assembly is not necessary to effectuate a change to a
parliamentary system of government.
The omnibus statement that all provisions under Articles VI and VII
which are inconsistent with a unicameral-parliamentary system of
government shall be deemed amended is equally bothersome. The
statement does not specify what these inconsistencies and
amendments may be, such that everyone is left to guess the provisions
that could eventually be affected by the proposed changes. The
subject and scope of these automatic amendments cannot even be
spelled out with certainty. There is thus no reasonable measure of its
impact on the other constitutional provisions.
The foregoing proposed changes cannot be the subject of a people's
initiative under Section 2, Article XVII of the Constitution. Taken
together, the proposed changes indicate that the intendment is not
simply to effect substantial amendments to the Constitution, but a
revision thereof. The distinction between an amendment and revision
was explained by Dean Vicente G. Sinco, as follows:
"Strictly speaking, the act of revising a constitution involves alterations
of different portions of the entire document. It may result in the
rewriting either of the whole constitution, or the greater portion of it, or
perhaps only some of its important provisions. But whatever results the
revision may produce, the factor that characterizes it as an act of
revision is the original intention and plan authorized to be carried out.
That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered
or suppressed or whether the whole document should be replaced with
an entirely new one.
The act of amending a constitution, on the other hand, envisages a
change of only a few specific provisions. The intention of an act to
amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather is to
improve specific parts of the existing constitution or to add to it
provisions deemed essential on account of changed conditions or to
suppress portions of it that seem obsolete, or dangerous, or misleading
in their effect."12
The foregoing traditional exposition of the difference between
amendment and revision has indeed guided us throughout our
constitutional history. However, the distinction between the two terms
is not, to my mind, as significant in the context of our past constitutions,
as it should be now under the 1987 Constitution. The reason for this is
apparent. Under our past constitutions, it was Congress alone, acting
either as a constituent assembly or by calling out a constitutional
convention, that exercised authority to either amend or revise the
Constitution through the procedures therein described. Although the
distinction between the two terms was theoretically recognized under
both the 1935 and 1973 Constitutions, the need to highlight the
difference was not as material because it was only Congress that could
effect constitutional changes by choosing between the two modalities.
However, it is different now under the 1987 Constitution. Apart from
providing for the two modes of either Congress constituting itself as a
constituent assembly or calling out for a constitutional convention, a
third mode was introduced for proposing changes to the Constitution.
This mode refers to the people's right to propose amendments to the
fundamental law through the filing of a petition for initiative.
Otherwise stated, our experience of what constitutes amendment or
revision under the past constitutions is not determinative of what the
two terms mean now, as related to the exercise of the right to propose
either amendments or revision. The changes introduced to both the
Constitutions of 1935 and 1973 could have indeed been deemed an
amendment or revision, but the authority for effecting either would
never have been questioned since the same belonged solely to
Congress. In contrast, the 1987 Constitution clearly limits the right of
the people to directly propose constitutional changes to amendments
only. We must consequently not be swayed by examples of
constitutional changes effected prior to the present fundamental law, in
determining whether such changes are revisory or amendatory in
nature.
In this regard, it should be noted that the distinction laid down by
Justice Felix Q. Antonio in Javellana v. Executive Secretary13 related
to the procedure to be followed in ratifying a completely new charter
proposed by a constitutional convention. The authority or right of the
constitutional convention itself to effect such a revision was not put in
issue in that case. As far as determining what constitutes
"amendments" for the purpose of a people's initiative, therefore, we
have neither relevant precedent nor prior experience. We must thus
confine ourselves to Dean Sinco's basic articulation of the two terms.
It is clear from Dean Sinco's explanation that a revision may either be
of the whole or only part of the Constitution. The part need not be a
substantial part as a change may qualify as a revision even if it only
involves some of the important provisions. For as long as the intention
and plan to be carried out contemplate a consideration of all the
provisions of the Constitution "to determine which should be altered or
suppressed, or whether the whole document should be replaced with
an entirely new one," the proposed change may be deemed a revision
and not merely an amendment.
Thus, it is not by the sheer number alone of the proposed changes that
the same may be considered as either an amendment or revision. In so
determining, another overriding factor is the "original intention and plan
authorized to be carried out" by the proposed changes. If the same
relates to a re-examination of the entire document to see which
provisions remain relevant or if it has far-reaching effects on the entire
document, then the same constitutes a revision and not a mere
amendment of the Constitution.
From the foregoing, it is readily apparent that a combination of the
quantitative and qualitative test is necessary in assessing what may be
considered as an amendment or revision. It is not enough that we
focus simply on the physical scope of the proposed changes, but also
consider what it means in relation to the entire document. No clear
demarcation line can be drawn to distinguish the two terms and each
circumstance must be judged on the basis of its own peculiar
conditions. The determination lies in assessing the impact that the
proposed changes may have on the entire instrument, and not simply
on an arithmetical appraisal of the specific provisions which it seeks to
affect.
In McFadden v. Jordan,14 the California Supreme Court laid down the
groundwork for the combination of quantitative and qualitative
assessment of proposed constitutional changes, in order to determine
whether the same is revisory or merely amendatory. In that case, the
McFadden court found the proposed changes extensive since at least
15 of the 25 articles contained in the California Constitution would
either be repealed in their entirety or substantially altered, and four new
topics would be introduced. However, it went on to consider the
qualitative effects that the proposed initiative measure would have on
California's basic plan of government. It observed that the proposal
would alter the checks and balances inherent in such plan, by
delegating far-reaching and mixed powers to an independent
commission created under the proposed measure. Consequently, the
proposal in McFadden was not only deemed as broad and numerous in
physical scope, but was also held as having a substantive effect on the
fundamental governmental plan of the State of California.
The dual aspect of the amendment/revision analysis was reiterated by
the California Supreme Court in Raven v. Deukmeijan.15 Proposition
115, as the initiative in that case was called, would vest in the United
States Supreme Court all judicial interpretative powers of the California
courts over fundamental criminal defense rights in that state. It was
observed that although quantitatively, the proposition did "not seem so
extensive as to change directly the substantial entirety of the
Constitution by the deletion or alteration of numerous existing
provisions," the same, nonetheless, "would substantially alter the
substance and integrity of the state Constitution as a document of
independent force and effect." Quoting Amador Valley Joint Union High
School District v. State Board of Equalization,16 the Raven court said:
". . . apart from a measure effecting widespread deletions, additions
and amendments involving many constitutional articles, 'even a
relatively simple enactment may accomplish such far reaching changes
in the nature of our basic governmental plan as to amount to a revision
also…[A]n enactment which purported to vest all judicial power in the
Legislature would amount to a revision without regard either to the
length or complexity of the measure or the number of existing articles
or sections affected by such change.'" (Underscoring supplied and
citations omitted)
Thus, in resolving the amendment/revision issue, the California Court
examines both the quantitative and qualitative effects of a proposed
measure on its constitutional scheme. Substantial changes in either
respect could amount to a revision.17
I am persuaded that we can approach the present issue in the same
manner. The experience of the courts in California is not far removed
from the standards expounded on by Dean Sinco when he set out to
differentiate between amendment and revision. It is actually consistent,
not only with our traditional concept of the two terms, but also with the
mindset of our constitutional framers when they referred to the
disquisition of Justice Antonio in Javellana.18 We must thus consider
222
whether the proposed changes in this case affect our Constitution in
both its substantial physical entirety and in its basic plan of
government.
The question posed is: do the proposed changes, regardless of
whether these are simple or substantial, amount to a revision as to be
excluded from the people's right to directly propose amendments to the
fundamental law?
As indicated earlier, we may apply the quantitative/qualitative test in
determining the nature of the proposed changes. These tests are
consistent with Dean Sinco's traditional concept of amendment and
revision when he explains that, quantitatively, revision "may result in
the rewriting either of the whole constitution, or the greater part of it, or
perhaps only some of its provisions." In any case, he continues, "the
factor that characterizes it as an act of revision is the original intention
and plan authorized to be carried out." Unmistakably, the latter
statement refers to the qualitative effect of the proposed changes.
It may thus be conceded that, quantitatively, the changes espoused by
the proponents in this case will affect only two (2) out of the eighteen
(18) articles of the 1987 Constitution, namely, Article VI (Legislative
Department) and Article VII (Executive Department), as well as
provisions that will ensure the smooth transition from a presidential-
bicameral system to a parliamentary-unicameral structure of
government. The quantitative effect of the proposed changes is neither
broad nor extensive and will not affect the substantial entirety of the
1987 Constitution.
However, it is my opinion that the proposed changes will have serious
qualitative consequences on the Constitution. The initiative petition, if
successful, will undoubtedly alter, not only our basic governmental
plan, but also redefine our rights as citizens in relation to government.
The proposed changes will set into motion a ripple effect that will strike
at the very foundation of our basic constitutional plan. It is therefore an
impermissible constitutional revision that may not be effected through a
people's initiative.
Petitioners' main proposal pertains to the shifting of our form of
government from the presidential to the parliamentary system. An
examination of their proposal reveals that there will be a fusion of the
executive and legislative departments into one parliament that will be
elected on the basis of proportional representation. No term limits are
set for the members of parliament except for those elected under the
party-list system whose terms and number shall be provided by law.
There will be a President who shall be the head of state, but the head
of government is the Prime Minister. The latter and his cabinet shall be
elected from among the members of parliament and shall be
responsible to parliament for the program of government.
The preceding proposal indicates that, under the proposed system, the
executive and legislature shall be one and the same, such that
parliament will be the paramount governing institution. What this
implies is that there will be no separation between the law-making and
enforcement powers of the state, that are traditionally delineated
between the executive and legislature in a presidential form of
government. Necessarily, the checks and balances inherent in the
fundamental plan of our U.S.-style presidential system will be
eliminated. The workings of government shall instead be controlled by
the internal political dynamics prevailing in the parliament.
Our present governmental system is built on the separation of powers
among the three branches of government. The legislature is generally
limited to the enactment of laws, the executive to the enforcement of
laws and the judiciary to the application of laws. This separation is
intended to prevent a concentration of authority in one person or group
that might lead to an irreversible error or abuse in its exercise to the
detriment of our republican institutions. In the words of Justice Laurel,
the doctrine of separation of powers is intended to secure action, to
forestall overaction, to prevent despotism and obtain efficiency.19
In the proposed parliamentary system, there is an obvious lack of
formal institutional checks on the legislative and executive powers of
the state, since both the Prime Minister and the members of his cabinet
are drawn from parliament. There are no effective limits to what the
Prime Minister and parliament can do, except the will of the
parliamentary majority. This goes against the central principle of our
present constitutional scheme that distributes the powers of
government and provides for counteraction among the three branches.
Although both the presidential and parliamentary systems are
theoretically consistent with constitutional democracy, the underlying
tenets and resulting governmental framework are nonetheless radically
different.
Consequently, the shift from presidential to parliamentary form of
government cannot be regarded as anything but a drastic change. It
will require a total overhaul of our governmental structure and involve a
re-orientation in the cardinal doctrines that govern our constitutional
set-up. As explained by Fr. Joaquin Bernas, S.J., a switch from the
presidential system to a parliamentary system would be a revision
because of its over-all impact on the entire constitutional structure.20 It
cannot, by any standard, be deemed as a mere constitutional
amendment.

An amendment envisages an alteration of one or a few specific and
separable provisions. The guiding original intention of an amendment
is to improve specific parts or to add new provisions deemed
necessary to meet new conditions or to suppress specific portions that
may have become obsolete or that are judged to be dangerous. In
revision, however, the guiding original intention and plan contemplates
a re-examination of the entire document, or of provisions of the
document which have over-all implications for the entire document, to
determine how and to what extent they should be altered.21
(Underscoring supplied)
The inclusion of a proposal to convene a constituent assembly likewise
shows the intention of the proponents to effect even more far-reaching
changes in our fundamental law. If the original intent were to simply
shift the form of government to the parliamentary system, then there
would have been no need for the calling out of a constituent assembly
to propose further amendments to the Constitution. It should be noted
that, once convened, a constituent assembly can do away and replace
any constitutional provision which may not even have a bearing on the
shift to a parliamentary system of government. The inclusion of such a
proposal reveals the proponents' plan to consider all provisions of the
constitution, either to determine which of its provisions should be
altered or suppressed or whether the whole document should be
replaced with an entirely new one.
Consequently, it is not true that only Articles VI and VII are covered by
the alleged people's initiative. The proposal to convene a constituent
assembly, which by its terms is mandatory, will practically jeopardize
the future of the entire Constitution and place it on shaky grounds. The
plan of the proponents, as reflected in their proposed changes, goes
beyond the shifting of government from the presidential to the
parliamentary system. Indeed, it could even extend to the "fundamental
nature of our state as a democratic and republican state."
To say that the proposed changes will affect only the constitution of
government is therefore a fallacy. To repeat, the combined effect of the
proposed changes to Articles VI and VII and those pertaining to the
Transitory Provisions under Article XVIII indubitably establish the intent
and plan of the proponents to possibly affect even the constitutions of
liberty and sovereignty. Indeed, no valid reason exists for authorizing
further amendments or revisions to the Constitution if the intention of
the proposed changes is truly what it purports to be.
There is no question here that only amendments to the Constitution
may be undertaken through a people's initiative and not a revision, as
textually reflected in the Constitution itself. This conclusion is inevitable
especially from a comparative examination of Section 2 in relation to
Sections 1 and 4 of Article XVII, which state:
SECTION 1. Any amendment to, or revision of, this Constitution may
be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
(2) A constitutional convention.
SECTION 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of
this right.
xxxx
SECTION 4. Any amendment to, or revision of, this Constitution under
Section 1 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor
later than ninety days after the approval of such amendment or
revision.
Any amendment under Section 2 hereof shall be valid when ratified by
a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the certification
by the Commission of Elections of the sufficiency of the petition.
(Underscoring supplied)
It is clear that the right of the people to directly propose changes to the
Constitution is limited to amendments and does not include a revision
thereof. Otherwise, it would have been unnecessary to provide for
Section 2 to distinguish its scope from the rights vested in Congress
under Section 1. The latter lucidly states that Congress may propose
both amendments and a revision of the Constitution by either
convening a constituent assembly or calling for a constitutional
convention. Section 2, on the other hand, textually commits to the
people the right to propose only amendments by direct action.
223
To hold, therefore, that Section 2 allows substantial amendments
amounting to revision obliterates the clear distinction in scope between
Sections 1 and 2. The intention, as may be seen from a cursory
perusal of the above provisions, is to provide differing fields of
application for the three modes of effecting changes to the
Constitution. We need not even delve into the intent of the
constitutional framers to see that the distinction in scope is definitely
marked. We should thus apply these provisions with a discerning
regard for this distinction. Again, McFadden22 is instructive:
". . . The differentiation required is not merely between two words;
more accurately it is between two procedures and between their
respective fields of application. Each procedure, if we follow
elementary principles of statutory construction, must be understood to
have a substantial field of application, not to be x x x a mere alternative
procedure in the same field. Each of the two words, then, must be
understood to denote, respectively, not only a procedure but also a
field of application appropriate to its procedure. The people of this state
have spoken; they made it clear when they adopted article XVIII and
made amendment relatively simple but provided the formidable
bulwark of a constitutional convention as a protection against
improvident or hasty (or any other) revision, that they understood that
there was a real difference between amendment and revision. We find
nothing whatsoever in the language of the initiative amendment of
1911 (art. IV, § 1) to effect a breaking down of that difference. On the
contrary, the distinction appears to be x x x scrupulously preserved by
the express declaration in the amendment x x x that the power to
propose and vote on "amendments to the Constitution" is reserved
directly to the people in initiative proceedings, while leaving
unmentioned the power and the procedure relative to constitutional
revision, which revisional power and procedure, it will be remembered,
had already been specifically treated in section 2 of article XVIII.
Intervenors' contention--that any change less than a total one is but
amendatory--would reduce to the rubble of absurdity the bulwark so
carefully erected and preserved. Each situation involving the question
of amendment, as contrasted with revision, of the Constitution must,
we think, be resolved upon its own facts."
Thus, our people too have spoken when they overwhelmingly ratified
the 1987 Constitution, with the provisions on amendments and
revisions under Article XVII. The voice and will of our people cannot be
any clearer when they limited people's initiative to mere amendments
of the fundamental law and excluded revisions in its scope. In this
regard, the task of the Court is to give effect to the people's voice, as
expressed unequivocally through the Constitution.
Article XVII on amendments and revisions is called a "constitution of
sovereignty" because it defines the constitutional meaning of
"sovereignty of the people." It is through these provisions that the
sovereign people have allowed the expression of their sovereign will
and have canalized their powers which would otherwise be plenary. By
approving these provisions, the sovereign people have decided to limit
themselves and future generations in the exercise of their sovereign
power.23 They are thus bound by the constitution and are powerless,
whatever their numbers, to change or thwart its mandates, except
through the means prescribed by the Constitution itself.24
It is thus misplaced to argue that the people may propose revisions to
the Constitution through people's initiative because their
representatives, whose power is merely delegated, may do so. While
Section 1 of Article XVII may be considered as a provision delegating
the sovereign powers of amendment and revision to Congress, Section
2, in contrast, is a self-limitation on that sovereign power. In the words
of Cooley:
x x x Although by their constitutions the people have delegated the
exercise of sovereign powers to the several departments, they have
not thereby divested themselves of the sovereignty. They retain in their
own hands, so far as they have thought it needful to do so, a power to
control the governments they create, and the three departments are
responsible to and subject to be ordered, directed, changed or
abolished by them. But this control and direction must be exercised in
the legitimate mode previously agreed upon. The voice of the people,
acting in their sovereign capacity, can be of legal force only when
expressed at the times and under the conditions which they
themselves have prescribed and pointed out by the Constitution, or
which, consistently with the Constitution, have been prescribed and
pointed out for them by statute; and if by any portion of the people,
however large, an attempt should be made to interfere with the regular
working of the agencies of government at any other time or in any
other mode than as allowed by existing law, either constitutional or
statutory, it would be revolutionary in character, and must be resisted
and repressed by the officers who, for the time being, represent
legitimate government.25 (Underscoring supplied)
Consequently, there is here no case of "the spring rising above its
source." Nor is it one where the people's sovereign power has been
relegated to a lesser plane than that of Congress. In choosing to
exercise self-limitation, there is no absence or lack of even a fraction of
the sovereign power of the people since self-limitation itself is an
expression of that sovereign power. The people have chosen to
delegate and limit their sovereign power by virtue of the Constitution
and are bound by the parameters that they themselves have ordained.
Otherwise, if the people choose to defy their self-imposed dicere vox populi vox Dei quum tumultuositas vulgi semper insaniae
constitutional restraints, we will be faced with a revolutionary proxima sit," meaning, "And those people should not be listened to who
situation.26 keep on saying, 'The voice of the people is the voice of God,' since the
riotousness of the crowd is always very close to madness."1 Perhaps,
It has repeatedly been emphasized that ours is a democratic and it is by providence that the true meaning of the Latin phrase is revealed
republican state.27 Even as we affirm, however, that aspect of direct upon petitioners and their allies – that they may reflect upon the
democracy, we should not forget that, first and foremost, we are a sincerity and authenticity of their "people's initiative."
constitutional democracy. To uphold direct democracy at the expense
of the fundamental law is to sanction, not a constitutional, but an extra- History has been a witness to countless iniquities committed in the
constitutional recourse. This is clearly beyond the powers of the Court name of God. Wars were waged, despotism tolerated and oppressions
who, by sovereign mandate, is the guardian and keeper of the justified – all these transpired as man boasted of God's imprimatur.
Constitution. Today, petitioners and their allies hum the same rallying call,
convincing this Court that the people's initiative is the "voice of the
IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. people" and, therefore, the "voice of God." After a thorough
No. 174153. consideration of the petitions, I have come to realize that man, with his
ingenuity and arrogance, has perfected the craft of imitating the voice
CONSUELO YNARES-SANTIAGO of God. It is against this kind of genius that the Court must guard itself.
Associate Justice
The facts of the case are undisputed.
____________________
In 1996, the Movement for People's Initiative sought to exercise the
EN BANC power of initiative under Section 2, Article XVII of the Constitution
which reads:
G.R. NO. 174153
Section 2. Amendments to this Constitution may likewise be directly
RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER proposed by the people through initiative upon a petition of at least
WITH 6,327,952 REGISTERED VOTERS, petitioners, twelve per centum of the total number of registered voters, of which
vs. every legislative district must be represented by at least three per
THE COMMISSION ON ELECTIONS, respondent. centum of the registered voters therein. No amendment under this
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), section shall be authorized within five years following the ratification of
petitioners-intervenors, this Constitution nor oftener than once every five years thereafter,
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA,
petitioners-intervenors, The Congress shall provide for the implementation of the exercise of
SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner- this right.
intervenor,
PHILIPPINE TRANSPORT AND GENERAL WORKERS The exercise was thwarted by a petition for prohibition filed with this
ORGANIZATION (PTGWO) AND VICTORINO F. BALAIS, petitioners- Court by Senator Miriam Defensor Santiago, et al., entitled "Miriam
intervenors, Defensor Santiago, Alexander Padilla and Maria Isabel Ongpin,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, petitioners, v. Commission on Elections (COMELEC), Jesus Delfin,
MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. Alberto Pedrosa and Carmen Pedrosa, in their capacities as founding
OPLE AND CARLOS P. MEDINA, JR., oppositors-intervenors, members of the People's Initiative for Reforms, Modernization and
ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor, Action (PIRMA), respondents."2 The case was docketed as G.R. No.
ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor, 127325. On March 19, 1997, this Court rendered its Decision in favor
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, of petitioners, holding that Republic Act No. 6735 (R.A. No. 6735), An
ECUMENICAL BISHOPS FROUM, MIGRANTE, GABRIELA, Act Providing for a System of Initiative and Referendum and
GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO Appropriating Funds Therefor, is "incomplete, inadequate, or wanting in
STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA, DR. DARBY essential terms and conditions insofar as initiative on amendments to
SANTIAGO, AND DR. REGINALD PAMUGAS, oppositors-intervenors, the Constitution is concerned." A majority of eight (8) Justices fully
LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA concurred with this ruling, while five (5) subscribed to the opposite
HONTIVEROS-BARAQUEL, oppositors-intervenors, view. One (1) opined that there is no need to rule on the adequacy of
LUWALHATI ANTONINO, oppositor-intervenor, R.A. No. 6735.
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
CONRADO F.ESTRELLA, TOMAS C. TOLEDO, MARIANO M. On motion for reconsideration, two (2) of the eight (8) Justices
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., reconsidered their positions. One (1) filed an inhibition and the other
FORTUNATO P. AGUAS AND AMADO GAT INCION, oppositors- one (1) joined the minority opinion. As a consequence, of the thirteen
intervenors, (13) Justices who participated in the deliberation, six (6) voted in favor
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND of the majority opinion, while the other six (6) voted in favor of the
SENATORS SERGIO R. OSMENA III, JAMBY A.S. MADRIGAL, minority opinion.3
LUISA P. EJERCIRO-ESTRADA, JINGGOY ESTRADA, ALFREDO S.
LIM, AND PANFILO M. LACSON, oppositors-intervenors, A few months thereafter, or on September 23, 1997, the Court
JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG dismissed a similar case, entitled People's Initiative for Reform,
PILIPINO, oppositors-intervenors, Modernization and Action (PIRMA) v. Commission on Elections4 on
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU the ground that the COMELEC did not commit grave abuse of
CHAPTER, oppositors-intervenors, discretion when it dismissed PIRMA's Petition for Initiative to Propose
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA Amendments to the Constitution "it appearing that that it only complied
A. LAT, ANTONIO L. SALVADOR AND RANDALL C. TABAYOYONG, with the dispositions in the Decision of the Court in G.R. no. 127325
oppostors-intervenors, (Santiago v. COMELEC) promulgated on March 19, 1997, and its
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS Resolution of June 10, 1997." Seven (7) Justices voted that there was
PRESIDENT, MANUEL VILLAR, JR., oppositor-intervenor; no need to re-examine its ruling, as regards the issue of the sufficiency
of R.A. No. 6735. Another Justice concurred, but on the different
G.R. NO. 174299 premise that the case at bar is not the proper vehicle for such re-
examination. Five (5) Justice opined otherwise.
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A.
Q. SAGUISAG, petitioners, This time, another group known as Sigaw ng Bayan, in coordination
vs. with the Union of Local Authorities of the Philippines (ULAP), have
COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN gathered signatures in support of the proposed amendments to the
BENJAMIN S. ABALOS, SR. AND COMMISSIONERS Constitution, which entail a change in the form of government from
RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR. bicameral-presidential to unicameral-parliamentary, thus:
ROMEO A. BRAWNER, RENE V. SARMIENTO AND JOHN DOE AND
PETER DOE, respondents. A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read
as follows:
x ---------------------------------------------------------------------------------------- x
Section 1. (1) The legislative and executive powers shall be vested in a
CONCURRING OPINION unicameral Parliament which shall be composed of as many members
as may be provided by law, to be apportioned among the provinces,
SANDOVAL–GUTIERREZ, J.: representative districts, and cities in accordance with the number of
their respective inhabitants, with at least three hundred thousand
Vox populi vox Dei -- the voice of the people is the voice of God. inhabitants per district, and on the basis of a uniform and progressive
Caution should be exercised in choosing one's battlecry, lest it does ratio. Each district shall comprise, as far as practicable, contiguous,
more harm than good to one's cause. In its original context, the compact and adjacent territory, and each province must have at least
complete version of this Latin phrase means exactly the opposite of one member.
what it is frequently taken to mean. It originated from a holy man, the
monk Alcuin, who advised Charlemagne, "nec audiendi qui solent
224
(2) Each Member of Parliament shall be a natural-born citizen of the
Philippines, at least twenty-five years old on the day of the election, a
resident of his district for at least one year prior thereto, and shall be
elected by the qualified voters of his district for a term of five years
without limitation as to the number thereof, except those under the
party-list system which shall be provided for by law and whose number
shall be equal to twenty per centum of the total membership coming
from the parliamentary districts.
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are
hereby amended to read, as follows:
Section 1. There shall be a President who shall be the Head of State.
The executive power shall be exercised by a Prime Minister, with the
assistance of the Cabinet. The Prime Minister shall be elected by a
majority of all the Members of Parliament from among themselves. He
shall be responsible to the Parliament for the program of government.
C. For the purpose of insuring an orderly transition from the bicameral-
Presidential to a unicameral-Parliamentary form of government, there
shall be a new Article XVIII, entitled "Transitory Provisions," which shall
read, as follows:
Section 1. (1) The incumbent President and Vice President shall serve
until the expiration of their term at noon on the thirtieth day of June
2010 and shall continue to exercise their powers under the 1987
Constitution unless impeached by a vote of two thirds of all the
members of the interim parliament.
(2) In case of death, permanent disability, resignation or removal from
office of the incumbent President, the incumbent Vice President shall
succeed as President. In case of death, permanent disability,
resignation or removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all the powers
and responsibilities of Prime Minister under Article VII as amended.
Section 2. Upon the expiration of the term of the incumbent President
and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7
of Article VI of the 1987 Constitution which shall hereby be amended
and Sections 18 and 24 which shall be deleted, all other Sections of
Article VI are hereby retained and renumbered sequentially as Section
2, ad seriatium up to 26, unless they are inconsistent with the
Parliamentary system of government, in which case, they shall be
amended to conform with a unicameral parliamentary form of
government; provided, however, that any and all references therein to
"Congress," "Senate," "House of Representatives" and "Houses of
Congress" shall be changed to read "Parliament;" that any and all
references therein to "Member(s) of Congress," "Senator(s)" or
"Member(s) of Parliament" and any and all references to the
"President" and/or "Acting President" shall be changed to read "Prime
Minister."
Section 3. Upon the expiration of the term of the incumbent President
and Vice President, with the exception of Sections 1, 2, 3 and 4 of
Article VII of the 1987 Constitution which are hereby be amended and
Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other
Sections of Article VII shall be retained and renumbered sequentially
as Section 2, ad seriatim up to 14, unless they shall be inconsistent
with Section 1 hereof, in which case they shall be deemed amended so
as to conform to a unicameral Parliamentary System of government;
provided, however, that any and all references therein to "Congress,"
"Senate," "House of Representatives" and "Houses of Congress" shall
be changed to read "Parliament;" that any and all references therein to
"Member(s) of Congress," "Senator(s)" or "Member(s) of the House of
Representatives" shall be changed to read as "Member(s) of
Parliament" and any and all references to the "President" and/or
"Acting President" shall be changed to read "Prime Minister."
Section 4. (1) There shall exist, upon the ratification of these
amendments, an interim Parliament which shall continue until the
Members of the regular Parliament shall have been elected and shall
have qualified. It shall be composed of the incumbent Members of the
Senate and the House of Representatives and the incumbent Members
of the Cabinet who are heads of executive departments.
(2) The incumbent Vice President shall automatically be a Member of
Parliament until noon of the thirtieth day of June 2010. He shall also be
a member of the cabinet and shall head a ministry. He shall initially
convene the interim Parliament and shall preside over its sessions for
the election of the interim Prime Minister and until the Speaker shall
have been elected by a majority vote of all the members of the interim
Parliament from among themselves.
(3) Senators whose term of office ends in 2010 shall be Members of
Parliament until noon of the thirtieth day of June 2010.
(4) Within forty-five days from ratification of these amendments, the
interim Parliament shall convene to propose amendments to, or
revisions of, this Constitution consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief Executive,
shall nominate, from among the members of the interim Parliament, an
225
interim Prime Minister, who shall be elected by a majority vote of the
members thereof. The interim Prime Minister shall oversee the various
ministries and shall perform such powers and responsibilities as may
be delegated to him by the incumbent President."
(2) The interim Parliament shall provide for the election of the members
of Parliament which shall be synchronized and held simultaneously
with the election of all local government officials. The duty elected
Prime Minister shall continue to exercise and perform the powers,
duties and responsibilities of the interim Prime Minister until the
expiration of the term of the incumbent President and Vice President.
Sigaw ng Bayan prepared signature sheets, and written on its upper
right hand portion is the abstract of the proposed amendments, quoted
as follows:
Abstract: Do you approve of the amendment of Article VI and VII of the
1987 Constitution, changing the form of government from the present
bicameral-presidential to a unicameral-parliamentary system of
government, in order to achieve greater efficiency, simplicity and
economy in government; and providing an Article XVIII as Transitory
Provisions for the orderly shift from one system to another?
On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado,
herein petitioners, filed with the COMELEC a Petition for Initiative to
Amend the Constitution.5 Five (5) days thereafter, they filed an
Amended Petition alleging that they are filing the petition in their own
behalf and together with some 6.3 million registered voters who have
affixed their signatures on the signature sheets attached thereto. They
claimed that the signatures of registered voters appearing on the
signature sheets, constituting at least twelve per cent (12%) of all
registered voters in the country, wherein each legislative district is
represented by at least three per cent (3%) of all the registered voters,
were verified by their respective city or municipal election officers.
Several organizations opposed the petition. 6
In a Resolution dated August 31, 2006, the COMELEC denied due
course to the petition, citing as basis this Court's ruling in Santiago,
permanently enjoining it "from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation
of the system."
Hence, the present petition for certiorari and mandamus praying that
this Court set aside the COMELEC Resolution and direct the latter
tocomply with Section 4, Article XVII of the Constitution, which
provides:
Sec. 4 x x x
Any amendment under Section 2 hereof shall be valid when ratified by
a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the certification
by the Commission on Elections of the sufficiency of the petition.
I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and
grant the petition of Mar-len Abigail Binay, et al. in G.R. No. 174299.
Here, petitioners pray that the COMELEC Chairman and
Commissioners be required to show why they should not be punished
for contempt7 of court for disregarding the permanent injunction issued
by this Court in Santiago.
I
Respondent COMELEC did not act with grave abuse of discretion
Without necessarily brushing aside the other important issues, I believe
the resolution of the present petition hinges on this singular issue -- did
the COMELEC commit grave abuse of discretion when it denied
Lambino, et al.'s petition for initiative to amend the Constitution on the
basis of this Court's Decision in Santiago v. COMELEC?
In other words, regardless of how the other remaining issues are
resolved, still, the ultimate yardstick is the attendance of "grave abuse
of discretion" on the part of the COMELEC.
Jurisprudence teaches that an act of a court or tribunal may only be
considered as committed in grave abuse of discretion when the same
was performed in a capricious or whimsical exercise of judgment. The
abuse of discretion must be so patent and gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of
passion or personal hostility.8
The Resolution of respondent COMELEC denying due course to the
petition for initiative on the basis of a case (Santiago) decided by this
Court cannot, in any way, be characterized as "capricious or
whimsical," "patent and gross," or "arbitrary and despotic." On the
contrary, it was the most prudent course to take. It must be stressed
that in Santiago, this Court permanently enjoins respondent COMELEC
"from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been
validly enacted." It being a fact that Congress has not enacted a
sufficient law, respondent COMELEC has no alternative but to adhere
to Santiago. Otherwise, it is vulnerable to a citation for contempt. As
succinctly stated by Chief Justice Artemio V. Panganiban (then
Associate Justice) in his Separate Opinion in the subsequent case of
PIRMA vs. COMELEC:9
x x x I cannot fault the Comelec for complying with the ruling even if it,
too, disagreed with said decision's ratio decidendi. Respondent
Comelec was directly enjoined by the highest Court of the land. It had
no choice but to obey. Its obedience cannot constitute grave abuse of
discretion. Refusal to act on the PIRMA petition was the only recourse
open to the Comelec. Any other mode of action would have constituted
defiance of the Court and would have been struck down as grave
abuse of discretion and contumacious disregard of this Court's
supremacy as the final arbiter of justiciable controversies.
It need not be emphasized that in our judicial hierarchy, this Court
reigns supreme. All courts, tribunals and administrative bodies
exercising quasi-judicial functions are obliged to conform to its
pronouncements. It has the last word on what the law is; it is the final
arbiter of any justifiable controversy. In other words, there is only one
Supreme Court from whose decisions all other courts should take their
bearings.10 As a warning to lower court judges who would not adhere
to its rulings, this Court, in People v. Santos,11 held:
Now, if a judge of a lower Court feels, in the fulfillment of his mission of
deciding cases, that the application of a doctrine promulgated by this
Superiority is against his way of reasoning, or against his conscience,
he may state his opinion on the matter, but rather than disposing of the
case in accordance with his personal views he must first think that it is
his duty to apply the law as interpreted by the Highest Court of the
Land, and that any deviation from a principle laid down by the latter
would unavoidably cause, as a sequel, unnecessary inconveniences,
delays and expenses to the litigants. And if despite of what is here
said, a Judge still believes that he cannot follow Our rulings, then he
has no other alternative than to place himself in the position that he
could properly avoid the duty of having to render judgment on the case
concerned (Art. 9, C.C.), and he has only one legal way to do that.
Clearly, respondent COMELEC did not gravely abuse its discretion in
dismissing the petition of Lambino, et al. for it merely followed this
Court's ruling in Santiago.
Significantly, in PIRMA vs. COMELEC,12 a unanimous Court implicitly
recognized that its ruling in Santiago is the established doctrine and
that the COMELEC did not commit grave abuse of discretion in
invoking it, thus:
The Court ruled, first, by a unanimous vote, that no grave abuse of
discretion could be attributed to the public respondent COMELEC in
dismissing the petition filed by PIRMA therein, it appearing that it only
complied with the dispositions of this Court in G.R. No. 127325
promulgated on March 19, 1997, and its resolution on June 10, 1997.
Indeed, I cannot characterize as a "grave abuse of discretion" the
COMELEC's obedience and respect to the pronouncement of this
Court in Santiago.
II
The doctrine of stare decisis
bars the re-examination of Santiago
It cannot be denied that in Santiago, a majority of the members of this
Court or eight (8) Justices (as against five (5) Justices) concurred in
declaring R.A. No. 6735 an insufficient law. When the motion for
reconsideration was denied via an equally-divided Court or a 6-6 vote,
it does not mean that the Decision was overturned. It only shows that
the opposite view fails to muster enough votes to modify or reverse the
majority ruling. Therefore, the original Decision was upheld.13 In
Ortigas and Company Limited Partnership vs. Velasco,14 this Court
ruled that the denial of a motion or reconsideration signifies that the
ground relied upon have been found, upon due deliberation, to be
without merit, as not being of sufficient weight to warrant a modification
of the judgment or final order.
With Santiago being the only impediment to the instant petition for
initiative, petitioners persistently stress that the doctrine of stare decisis
does not bar its re-examination.
I am not convinced. The maxim stare decisis et non quieta movere
translates "stand by the decisions and disturb not what is settled."15
As used in our jurisprudence, it means that "once this Court has laid
down a principle of law as applicable to a certain state of facts, it would
adhere to that principle and apply it to all future cases in which the
facts are substantially the same as in the earlier controversy."16
There is considerable literature about whether this doctrine of stare
decisis is a good or bad one, but the doctrine is usually justified by
arguments which focus on the desirability of stability and certainty in
the law and also by notions of justice and fairness. Justice Benjamin
Cardozo in his treatise, The Nature of the Judicial Process stated:
226
It will not do to decide the same question one way between one set of
litigants and the opposite way between another. 'If a group of cases
involves the same point, the parties expect the same decision. It would
be a gross injustice to decide alternate cases on opposite principles. If
a case was decided against me yesterday when I was a defendant, I
shall look for the same judgment today if I am plaintiff. To decide
differently would raise a feeling of resentment and wrong in my breast;
it would be an infringement, material and moral, of my rights."
Adherence to precedent must then be the rule rather than the
exception if litigants are to have faith in the even-handed administration
of justice in the courts.17
That the doctrine of stare decisis is related to justice and fairness may
be appreciated by considering the observation of American philosopher
William K. Frankena as to what constitutes injustice:
The paradigm case of injustice is that in which there are two similar
individuals in similar circumstances and one of them is treated better or
worse than the other. In this case, the cry of injustice rightly goes up
against the responsible agent or group; and unless that agent or group
can establish that there is some relevant dissimilarity after all between
the individuals concerned and their circumstances, he or they will be
guilty as charged.18
Although the doctrine of stare decisis does not prevent re-examining
and, if need be, overruling prior decisions, "It is x x x a fundamental
jurisprudential policy that prior applicable precedent usually must be
followed even though the case, if considered anew, might be decided
differently by the current justices. This policy x x x 'is based on the
assumption that certainty, predictability and stability in the law are the
major objectives of the legal system; i.e., that parties should be able to
regulate their conduct and enter into relationships with reasonable
assurance of the governing rules of law.19 Accordingly, a party urging
overruling a precedent faces a rightly onerous task, the difficulty of
which is roughly proportional to a number of factors, including the age
of the precedent, the nature and extent of public and private reliance
on it, and its consistency or inconsistency with other related rules of
law. Here, petitioners failed to discharge their task.
Santiago v. COMELEC was decided by this Court on March 19, 1997
or more than nine (9) years ago. During that span of time, the Filipino
people, specifically the law practitioners, law professors, law students,
the entire judiciary and litigants have recognized this Court's Decision
as a precedent. In fact, the Santiago doctrine was applied by this Court
in the subsequent case of PIRMA. Even the legislature has relied on
said Decision, thus, several bills have been introduced in both Houses
of Congress to cure the deficiency. I cannot fathom why it should be
overturned or set aside merely on the basis of the petition of Lambino,
et al. Indeed, this Court's conclusion in Santiago that R.A. No. 6735 is
incomplete, inadequate or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned
remains a precedent and must be upheld.
III
The proposed constitutional changes constitute revisions and not mere
amendments
Article XVII of the 1987 Constitution lays down the means for its
amendment and revision. Thus:
Section 1. Any amendment to, or revision of, this Constitution may be
proposed by:
(1) The Congress, upon a vote of three-fourths of all its members; or
(2) A Constitutional Convention.
Section 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered votes, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. x x x. (Emphasis supplied)
At the outset, it must be underscored that initiative and referendum, as
means by which the people can directly propose changes to the
Constitution, were not provided for in the 1935 and 1973 Constitutions.
Thus, under these two (2) Constitutions, there was no demand to draw
the distinction between an amendment and a revision, both being
governed by a uniform process. This is not so under our present
Constitution. The distinction between an amendment and a revision
becomes crucial because only amendments are allowed under the
system of people's initiative. Revisions are within the exclusive domain
of Congress, upon a vote of three-fourths of all its members, or of a
Constitutional Convention.
The deliberations of the 1986 Constitutional Commission is explicit that
Section 2, Article XVII covers only amendments, thus:
The sponsor, Commissioner Suarez, is recognized.
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the
Commission that pursuant to the mandate given us last night, we
submitted this afternoon a complete Committee Report No. 7 which
embodies the proposed provision governing initiative. This is now
covered by Section 2 of the complete committee report. With the
permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite
held, directly propose amendments to this Constitution thru initiative
upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report
No. 7. This proposal was suggested on the theory that this matter of
initiative which came about because of the extraordinary developments
this year, has to be separated from the traditional modes of amending
the Constitution as embodied in Section 1. The committee members
felt that this system of initiative should be limited to amendments to the
Constitution and should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of the
proposed Article on Amendment or Revision.
xxx xxx xxx
MR. MAAMBONG: Madam President, will the distinguished proponent
of the amendment yield to a few questions?
MR. DAVIDE: With pleasure, Madam President.
MR. MAAMBONG: My first question, Commissioner Davide's proposed
amendment on line I refers to "amendments." Does it not cover the
word "revision" as defined by Commissioner Padilla when he made the
distinction between the words "amendments" and "revision?"
MR. DAVIDE: No, it does not, because "amendments" and "revision"
should be covered by Section 1. So insofar as initiative is concerned, it
can only relate to "amendments" not "revision"
MR. MAAMBONG: Thank you.20
Considering that the initiative on the Constitution only permits
amendments, it is imperative to examine whether petitioners' proposed
changes partake of the nature of amendments, not revisions.
The petition for initiative filed with the COMELEC by Lambino, et al.
sought to amend the following provisions of the 1987 Constitution:
Sections 1, 2, 3, 4, 5, 6, and 7 of Article VI (The Legislative
Department); Sections 1, 2, 3 and 4 of Article VII (The Executive
Department). It further includes Article XVIII (Transitory Provisions) for
the purpose of insuring an orderly transition from the bicameral-
presidential to a unicameral-parliamentary form of government.
Succinctly, the proposals envision a change in the form of government,
from bicameral-presidential to unicameral-parliamentary; conversion of
the present Congress of the Philippines to an Interim National
Assembly; change in the terms of Members of Parliament; and the
election of a Prime Minister who shall be vested with executive power.
Petitioners contend that the proposed changes are in the nature of
amendments, hence, within the coverage of a "people's initiative."
I disagree.
The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was
also a member of the 1986 Constitutional Commission, characterized
an amendment and a revision to the Constitution as follows:
An amendment envisages an alteration of one or a few specific and
separable provisions. The guiding original intention of an amendment
is to improve specific parts or to add new provisions deemed
necessary to meet new conditions or to suppress specific portions that
may have become obsolete or that are judged to be dangerous. In
revision however, the guiding original intention and plan contemplates
a re-examination of the entire document, or of provisions of the
document which have over-all implications for the document to
determine how and to what extent they should be altered.21
Obviously, both "revision" and amendment" connote change; any
distinction between the two must be based upon the degree of change
contemplated. In Kelly v. Laing,22 the Supreme Court of Michigan
made the following comparison of the two terms:
"Revision" and "amendment" have the common characteristics of
working changes in the charter, and are sometimes used in exactly the
same sense but there is an essential difference between them.
"Revision" implies a reexamination of the whole law and a redraft
without obligation to maintain the form, scheme, or structure of the old.
As applied to fundamental law, such as a constitution or charter, it
suggests a convention to examine the whole subject and to prepare
and submit a new instrument whether the desired changes from the old
are few or many. Amendment implies continuance of the general plan
and purpose of the law, with corrections to better accomplish its
227
purpose. Basically, revision suggests fundamental change, while
amendment is a correction of detail.
Although there are some authorities which indicate that a change in a
city's form of government may be accomplished by a process of
"amendment," the cases which so hold seem to involve statutes which
only distinguish between amendment and totally new charters.23
However, as in Maine law, where the statute authorizing the changes
distinguishes between "charter amendment" and "charter revision," it
has been held that "(a) change in the form of government of a home
rule city may be made only by revision of the city charter, not by its
amendment."24
In summary, it would seem that any major change in governmental
form and scheme would probably be interpreted as a "revision" and
should be achieved through the more thorough process of deliberation.
Although, at first glance, petitioners' proposed changes appear to
cover isolated and specific provisions only, however, upon careful
scrutiny, it becomes clear that the proposed changes will alter the very
structure of our government and create multifarious ramifications. In
other words, the proposed changes will have a "domino effect" or,
more appropriately, "ripple effect" on other provisions of the
Constitution.
At this juncture, it must be emphasized that the power reserved to the
people to effect changes in the Constitution includes the power to
amend anysection in such a manner that the proposed change, if
approved, would "be complete within itself, relate to one subject and
not substantially affect any other section or article of the Constitution or
require further amendments to the Constitution to accomplish its
purpose."25 This is clearly not the case here.
Firstly, a shift from a presidential to a parliamentary form of
government affects the well-enshrined doctrine of separation of powers
of government, embodied in our Constitution, by providing for an
Executive, Legislative and Judiciary Branches. In a Parliamentary form
of government, the Executive Branch is to a certain degree, dependent
on the direct or indirect support of the Parliament, as expressed
through a "vote of confidence." To my mind, this doctrine of separation
of powers is so interwoven in the fabric of our Constitution, that any
change affecting such doctrine must necessarily be a revision.
In McFadden vs. Jordan,26 the California Supreme Court ruled as
follows:
It is thus clear that that a revision of the Constitution may be
accomplished only through ratification by the people of a revised
constitution proposed by a convention called for that purpose x x x.
Consequently, if the scope of the proposed initiative measure now
before us is so broad that if such measure became law a substantial
revision of our present state Constitution would be effected, then the
measure may not properly be submitted to the electorate until and
unless it is first agreed upon by a constitutional convention. x x x.
Secondly, the shift from a bicameral to a unicameral form of
government is not a mere amendment, but is in actuality a revision, as
set forth in Adams v. Gunter27:
The proposal here to amend Section I of Article III of the 1968
Constitution to provide for a Unicameral Legislature affects not only
many other provisions of the Constitution but provides for a change in
the form of the legislative branch of government, which has been in
existence in the United States Congress and in all of the states of the
nation, except one, since the earliest days. It would be difficult to
visualize a more revolutionary change. The concept of a House and a
Senate is basic in the American form of government. It would not only
radically change the whole pattern of the government in this state and
tear apart the whole fabric of the Constitution, but would even affect
the physical facilities necessary to carry on government.
Thirdly, the proposed changes, on their face, signify revisions rather
than amendments, especially, with the inclusion of the following
"omnibus provision":
C. For the purpose of insuring an orderly transition from the bicameral-
Presidential to a unicameral-Parliamnetary form of government, there
shall be a new Article XVIII, entitled "Transitory Provisions" which shall
read, as follows:
xxxxxxxxx
Section 3. Upon the expiration of the term of the incumbent President
and Vice-President, with the exceptions of Section 1,2,3 and 4 of
Article VII of the 1987 Constitution which are hereby amended x x x x x
x and all other Sections of Article VII shall be retained and numbered
sequentially as Section 2, ad seriatim up to 14, unless they shall be
inconsistent with Section 1 hereof, in which case they shall be deemed
amended so as to conform to a unicameral Parliamentary system of
government x x x x x x .
xxxxxxxxx
Section 4. (1) x x x
(3) Within forty-five days from ratification of these amendments, the
Interim Parliament shall convene to propose amendments to, or
revisions of, this Constitution, consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.
The above provisions will necessarily result in a "ripple effect" on the
other provisions of the Constitution to make them conform to the
qualities of unicameral-parliamentary form of government. With one
sweeping stroke, these proposed provisions automatically revise some
provisions of the Constitution. In McFadden, the same practice was
considered by the Court to be in the nature of substantial revision,
necessitating a constitutional convention. I quote the pertinent portion
of its ruling, thus:
There is in the measure itself, no attempt to enumerate the various and
many articles and sections of our present Constitution which would be
affected, replaced or repealed. It purports only to add one new article
but its framers found it necessary to include the omnibus provision
(subdivision (7) of section XII) that "If any section, subsection,
sentence, clause or phrase of the constitution is in conflict with any of
the provisions of this article, such section, subsection, sentence,
clause, or phrase is to the extent of such conflict hereby repealed. x x x
Consequently, if the scope of the proposed intitiative measure now
before us is so broad that if such measure become law a substantial
revision of our present state Constitution would be be effected, then
the measure may not properly be submitted to the electorate until and
unless it is first agreed upon by a constitutional convention.28
Undoubtedly, the changes proposed by the petitioners are not mere
amendments which will only affect the Articles or Sections sought to be
changed. Rather, they are in the nature of revisions which will affect
considerable portions of the Constitution resulting in the alteration of
our form of government. The proposed changes cannot be taken in
isolation since these are connected or "interlocked" with the other
provisions of our Constitution. Accordingly, it has been held that: "If the
changes attempted are so sweeping that it is necessary to include the
provisions interlocking them, then it is plain that the plan would
constitute a recasting of the whole Constitution and this, we think, it
was intended to be accomplished only by a convention under Section 2
which has not yet been disturbed."29
I therefore conclude that since the proposed changes partake of the
nature of a revision of the Constitution, then they cannot be the subject
of an initiative. On this matter, Father Bernas expressed this insight:
But why limit initiative and referendum to simple amendments? The
answer, which one can easily glean from the rather long deliberation
on initiative and referendum in the 1986 Constitutional Commission, is
practicality. In other words, who is to formulate the revision or how is it
to be formulated? Revision, as concretely being proposed now, is
nothing less than a rebuilding of the Philippine constitutional structure.
Who were involved in formulating the structure? What debates
ensued? What records are there for future use in interpreting the
provisions which may be found to be unclear?
In a deliberative body like Congress or a Constitutional Convention,
decisions are reached after much purifying debate. And while the
deliberations proceed, the public has the opportunity to get involved. It
is only after the work of an authorized body has been completed that it
is presented to the electorate for final judgment. Careful debate is
important because the electorate tends to accept what is presented to
it even sight unseen.30
IV
R.A. No. 6735 is insufficient to implement the People's initiative
Section 2, Article XVII of the 1987 Constitution reads:
Section 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter,
The Congress shall provide for the implementation of the exercise of
this right.
On its face, Section 2 is not a self-executory provision. This means that
an enabling law is imperative for its implementation. Thus, Congress
enacted R.A. No. 6735 in order to breathe life into this constitutional
provision. However, as previously narrated, this Court struck the law in
Santiago for being incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the
Constitution is concerned.
The passage of time has done nothing to change the applicability of
R.A. No. 6735. Congress neither amended it nor passed a new law to
supply its deficiencies.
228
Notwithstanding so, this Court is being persuaded to take a 360-degree
turn, enumerating three (3) justifications why R.A. No. 6735 must be
considered a sufficient law, thus:
1) The text of R.A. No. 6735 is replete with references to the right of
people to initiate changes to the Constitution;
2) The legislative history of R.A. No. 6735 reveals the clear intent of
the lawmakers to use it as instrument to implement the people's
initiative; and
3) The sponsorship speeches by the authors of R.A. No. 6735
demonstrate the legislative intent to use it as instrument to implement
people's initiative.
I regret to say that the foregoing justifications are wanting.
A thorough reading of R.A. No. 6735 leads to the conclusion that it
covers only initiatives on national and local legislation. Its references to
initiatives on the Constitution are few, isolated and misplaced. Unlike in
the initiatives on national and local legislation, where R.A. No. 6735
provides a detailed, logical, and exhaustive enumeration on their
implementation,31 however, as regards initiative on the Constitution,
the law merely:
(a) mentions the word "Constitution" in Section 2;32
(b) defines "initiative on the Constitution" and includes it in the
enumeration of the three systems of initiative in Section 3;33
(c) speaks of "plebiscite" as the process by which the proposition in an
initiative on the Constitution may be approved or rejected by the
people;34
(d) reiterates the constitutional requirements as to the number of voters
who should sign the petition;35 and
(e) provides the date for the effectivity of the approved proposition.36
In other words, R.A. No. 6735 does not specify the procedure how
initiative on the Constitution may be accomplished. This is not the
enabling law contemplated by the Constitution. As pointed out by
oppositor-intervenor Alternative Law Groups Inc., since the
promulgation of the Decision in Santiago, various bills have been
introduced in both Houses of Congress providing for a complete and
adequate process for people's initiative, such as:
· Names, signatures and addresses of petitioners who shall be
registered voters;
· A statement of the provision of the Constitution or any part thereof
sought to be amended and the proposed amendment;
· The manner of initiation - in a congressional district through a petition
by any individual, group, political party or coalition with members in the
congressional district;
· The language used: the petition should be printed in English and
translated in the local language;
· Signature stations to be provided for;
· Provisions pertaining to the need and manner of posting, that is, after
the signatures shall have been verified by the Commission, the verified
signatures shall be posted for at least thirty days in the respective
municipal and city halls where the signatures were obtained;
· Provisions pertaining to protests allowed any protest as to the
authenticity of the signatures to be filed with the COMELEC and
decided within sixty (60) days from the filing of said protest.
None of the above necessary details is provided by R.A. No. 6735,
thus, demonstrating its incompleteness and inadequacy.
V
Petitioners are not Proper Parties to
File the Petition for Initiative
VI
The Petition for Initiative Filed with the COMELEC Does not Comply
with Section 2, Article XVII of the Constitution and R.A. No. 6735
I shall discuss the above issues together since they are interrelated
and inseparable. The determination of whether petitioners are proper
parties to file the petition for initiative in behalf of the alleged 6.3 million
voters will require an examination of whether they have complied with
the provisions of Section 2, Article XVII of the Constitution.
To reiterate, Section 2, Article XVII of the Constitution provides:
Section 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of
this right. (Underscoring supplied)
The mandate of the above constitutional provisions is definite and
categorical. For a people's initiative to prosper, the following requisites
must be present:
1. It is "the people" themselves who must "directly propose"
"amendments" to the Constitution;
2. The proposed amendments must be contained in "a petition of at
least twelve per centum of the total number of registered voters;" and
3. The required minimum of 12% of the total number of registered
voters "must be represented by at least three per centum of the
registered voters" of "every legislative district."
In this case, however, the above requisites are not present.
The petition for initiative was filed with the COMELEC by petitioners
Lambino and Aumentado, two registered voters. As shown in the
"Verification/Certification with Affidavit of Non-Forum Shopping"
contained in their petition, they alleged under oath that they have
caused the preparation of the petition in their personal capacity as
registered voters "and as representatives" of the supposed 6.3 million
registered voters. This goes to show that the questioned petition was
not initiated directly by the 6.3 million people who allegedly comprised
at least 12% of the total number of registered voters, as required by
Section 2. Moreover, nowhere in the petition itself could be found the
signatures of the 6.3 million registered voters. Only the signatures of
petitioners Lambino and Aumentado were affixed therein "as
representatives" of those 6.3 million people. Certainly, that is not the
petition for people's initiative contemplated by the Constitution.
Petitioners Lambino and Aumentado have no authority whatsoever to
file the petition "as representatives" of the alleged 6.3 million registered
voters. Such act of representation is constitutionally proscribed. To
repeat, Section 2 strictly requires that amendments to the Constitution
shall be "directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number of registered
voters." Obviously, the phrase "directly proposed by the people"
excludes any person acting as representative or agent of the 12% of
the total number of registered voters. The Constitution has bestowed
upon the people the right to directly propose amendments to the
Constitution. Such right cannot be usurped by anyone under the guise
of being the people's representative. Simply put, Section 2 does not
recognize acts of representation. For it is only "the people" (comprising
the minimum of 12% of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein) who are the proper parties to
initiate a petition proposing amendments to the Constitution. Verily, the
petition filed with the COMELEC by herein petitioners Lambino and
Aumentado is not a people's initiative. Necessarily, it must fail.
Cororarilly, the plea that this Court should "hear" and "heed" "the
people's voice" is baseless and misleading. There is no people's voice
to be heard and heeded as this petition for initiative is not truly theirs,
but only of petitioners Lambino and Aumentado and their allies.
VII
The issues at bar are not political questions.
Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently
argue that: (1) "the validity of the exercise of the right of the sovereign
people to amend the Constitution and their will, as expressed by the
fact that over six million registered voters indicated their support of the
Petition for initiative is a purely political question;" and (2) "[t]he power
to propose amendments to the Constitution is a right explicitly
bestowed upon the sovereign people. Hence, the determination by the
people to exercise their right to propose amendments under the
system of initiative is a sovereign act and falls squarely within the ambit
of a political question."
The "political question doctrine" was first enunciated by the US
Supreme Court in Luther v. Borden.37 Faced with the difficult question
of whether the Supreme Court was the appropriate institution to define
the substantive content of republicanism, the US Supreme Court,
speaking thru Mr. Justice Roger B. Taney, concluded that "the
sovereignty in every State resides in the people, as to how and
whether they exercised it, was under the circumstances of the case, a
political question to be settled by the political power." In other words,
the responsibility of settling certain constitutional questions was left to
the legislative and executive branches of the government.
The Luther case arose from the so-called "Dorr Rebellion" in the State
of Rhode Island. Due to increased migration brought about by the
Industrial Revolution, the urban population of Rhode Island increased.
However, under the 1663 Royal Charter which served as the State
229
Constitution, voting rights were largely limited to residents of the rural
districts. This severe mal-apportionment of suffrage rights led to the
"Dorr Rebellion." Despairing of obtaining remedies for their
disenfranchisement from the state government, suffrage reformers
invoked their rights under the American Declaration of Independence
to "alter or abolish" the government and to institute a new one. The
reformers proceeded to call for and hold an extralegal constitutional
convention, drafted a new State Constitution, submitted the document
for popular ratification, and held elections under it. The State
government, however, refused to cede power, leading to an anomalous
situation in that for a few months in 1842, there were two opposing
state governments contending for legitimacy and possession of state of
offices.
The Rhode Island militia, under the authority of martial law, entered
and searched the house of Martin Luther, a Dorr supporter. He brought
suit against Luther Borden, a militiaman. Before the US Supreme
Court, Luther's counsel argued that since the State's archaic
Constitution prevented a fair and peaceful address of grievances
through democratic processes, the people of Rhode Island had instead
chosen to exercise their inherent right in popular sovereignty of
replacing what they saw as an oppressive government. The US
Supreme Court deemed the controversy as non-justiciable and
inappropriate for judicial resolution.
In Colgrove v. Green,38 Mr. Justice Felix Frankfurter, coined the
phrase "political thicket" to describe situations where Federal courts
should not intervene in political questions which they have neither the
competence nor the commission to decide. In Colgrove, the US
Supreme Court, with a narrow 4-3 vote branded the apportionment of
legislative districts in Illinois "as a political question and that the
invalidation of the districts might, in requiring statewide elections,
create an evil greater than that sought to be remedied."
While this Court has adopted the use of Frankfurter's "political thicket,"
nonetheless, it has sought to come up with a definition of the term
"political question." Thus, in Vera v. Avelino,39 this Court ruled that
properly, political questions are "those questions which, under the
Constitution, are to be decided by the people in their sovereign
capacity or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government." In
Tañada and Macapagal v. Cuenco,40 the Court held that the term
political question connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure.
In Aquino v. Enrile,41 this Court adopted the following guidelines laid
down in Baker v. Carr42 in determining whether a question before it is
political, rather than judicial in nature, to wit:
1) there is a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or
2) there is a lack of judicially discoverable and manageable standards
for resolving it; or
3) there is the sheer impossibility of deciding the matter without an
initial policy determination of a kind clearly for non-judicial discretion; or
4) there is the sheer impossibility of the Court's undertaking an
independent resolution without expressing lack of respect due the
coordinate branches of government; or
5) there is an unusual need for unquestioning adherence to a political
decision already made; or
6) there exists the potentiality of embarrassment arising from
multifarious pronouncements by various departments on one question.
None of the foregoing standards is present in the issues raised before
this Court. Accordingly, the issues are justiciable. What is at stake here
is the legality and not the wisdom of the act complained of.
Moreover, even assuming arguendo that the issues raised before this
Court are political in nature, it is not precluded from resolving them
under its expanded jurisdiction conferred upon it by Section 1, Article
VIII of the Constitution, following Daza v. Singson.43 As pointed out in
Marcos v. Manglapus,44 the present Constitution limits resort to the
political question doctrine and broadens the scope of judicial power
which the Court, under previous charters, would have normally and
ordinarily left to the political departments to decide.
CONCLUSION
In fine, considering the political scenario in our country today, it is my
view that the so-called people's initiative to amend our Constitution
from bicameral-presidential to unicameral-parliamentary is actually not
an initiative of the people, but an initiative of some of our politicians. It
has not been shown by petitioners, during the oral arguments in this
case, that the 6.3 million registered voters who affixed their signatures
understood what they signed. In fact, petitioners admitted that the
Constitutional provisions sought to be amended and the proposed
amendments were not explained to all those registered voters. Indeed,
there will be no means of knowing, to the point of judicial certainty,
whether they really understood what petitioners and their group asked
them to sign.
Let us not repeat the mistake committed by this Court in Javellana v.
The Executive Secretary.45 The Court then ruled that "This being the
vote of the majority, there is no further judicial obstacle to the new
Constitution being considered in force and effect," although it had
notice that the Constitution proposed by the 1971 Constitutional
Convention was not validly ratified by the people in accordance with
the 1935 Constitution. The Court concluded, among others, that the
viva voce voting in the Citizens' Assemblies "was and is null and void
ab initio." That was during martial law when perhaps majority of the
justices were scared of the dictator. Luckily at present, we are not
under a martial law regime. There is, therefore, no reason why this
Court should allow itself to be used as a legitimizing authority by the
so-called people's initiative for those who want to perpetuate
themselves in power.
At this point, I can say without fear that there is nothing wrong with our
present government structure. Consequent1y, we must not change it.
America has a presidential type of government. Yet, it thrives ideally
and has become a super power. It is then safe to conclude that what
we should change are some of the people running the government,
NOT the SYSTEM.
According to petitioners, the proposed amendment would effect a more
efficient, more economical and more responsive government.
Is there hope that a new breed of politicians, more qualified and
capable, may be elected as members and leaders of the unicameral-
parliament? Or will the present members of the Lower House continue
to hold their respective positions with limitless terms?
Will the new government be more responsive to the needs of the poor
and the marginalized? Will it be able to provide homes for the
homeless, food for the hungry, jobs for the jobless and protection for
the weak?
This is a defining moment in our history. The issue posed before us is
crucial with transcendental significance. And history will judge us on
how we resolve this issue – shall we allow the revision of our
Constitution, of which we are duty bound to guard and revere, on the
basis of a doubtful people's initiative?
Amending the Constitution involving a change of government system
or structure is a herculean task affecting the entire Filipino people and
the future generations. Let us, therefore, entrust this duty to more
knowledgeable people elected as members of a Constitutional
Convention.
Yes, the voice of the people is the voice of God. But under the
circumstances in this case, the voice of God is not audible.
WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and
to GRANT the petition in G.R. No. 174299.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
____________________
EN BANC
G.R. No. 174153
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with
6,327,952 REGISTERED VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
G.R. No. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE
A.Q. SAGUISAG, petitioners,
vs.
THE COMMISSION ON ELECTIONS, represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners RESURRECCION
Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER,
RENE V. SARMIENTO, and JOHN DOE and PETER DOE,
respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE CONCURRING OPINION
CALLEJO, SR., J.:
I am convinced beyond cavil that the respondent Commission on
Elections (COMELEC) did not commit an abuse of its discretion in
dismissing the amended petition before it. The proposals of petitioners
incorporated in said amended petition are for the revision of the 1987
230
Constitution. Further, the amended petition before the respondent
COMELEC is insufficient in substance.
The Antecedents
On August 25, 2006, petitioners Raul L. Lambino and Erico B.
Aumentado filed with the COMELEC a petition entitled "IN THE
MATTER OF PROPOSING AMENDMENTS TO THE 1987
CONSTITUTION THROUGH A PEOPLE'S INITIATIVE: A SHIFT
FROM A BICAMERAL PRESIDENTIAL TO A UNICAMERAL
PARLIAMENTARY GOVERNMENT BY AMENDING ARTICLES VI
AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR THE
ORDERLY SHIFT FROM THE PRESIDENTIAL TO THE
PARLIAMENTARY SYSTEM." The case was docketed as EM (LD)-06-
01. On August 30, 2006, petitioners filed an amended petition. For
brevity, it is referred to as the petition for initiative.
Petitioners alleged therein, inter alia, that they filed their petition in their
own behalf and together with those who have affixed their signatures to
the signature sheets appended thereto who are Filipino citizens,
residents and registered voters of the Philippines, and they constitute
at least twelve percent (12%) of all the registered voters in the country,
wherein each legislative district is represented by at least three percent
(3%) of all the registered voters therein.
Petitioners further alleged therein that the filing of the petition for
initiative is based on their constitutional right to propose amendments
to the 1987 Constitution by way of people's initiative, as recognized in
Section 2, Article XVII thereof, which provides:
SEC. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of
this right."
According to petitioners, while the above provision states that "(T)he
Congress shall provide for the implementation of the exercise of this
right," the provisions of Section 5(b) and (c), along with Section 7 of
Republic Act (RA) 6735,1 are sufficient enabling details for the people's
exercise of the power. The said sections of RA 6735 state:
Sec. 5. Requirements. – (a) To exercise the power x x x
(b) A petition for an initiative on the 1987 Constitution must have at
least twelve per centum (12%) of the total number of registered voters
as signatories, of which every legislative district must be represented
by at least three per centum (3%) of the registered voters therein.
Initiative on the Constitution may be exercised only after five (5) years
from the ratification of the 1987 Constitution and only once every five
(5) years thereafter.
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
c.2. the proposition;
c.3. the reason or reasons therefor;
c.4. that it is not one of the exceptions provided herein;
c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary in not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the
petition.
xxxx
Sec. 7. Verification of Signatures. – The Election Registrar shall verify
the signatures on the basis of the registry list of voters, voters'
affidavits and voters identification cards used in the immediately
preceding election.
They also alleged that the COMELEC has the authority, mandate and
obligation to give due course to the petition for initiative, in compliance
with the constitutional directive for the COMELEC to "enforce and
administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall."2
Petitioners incorporated in their petition for initiative the changes they
proposed to be incorporated in the 1987 Constitution and prayed that
the COMELEC issue an order:
1. Finding the Petition to be sufficient pursuant to Section 4, Article
XVII of the 1987 Constitution;

2. Directing the publication of the Petition in Filipino and English at
least twice in newspapers of general and local circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later than
ninety days after the Certification by this Honorable Commission of the
sufficiency of this Petition, to allow the Filipino people to express their
sovereign will on the proposition.
Petitioners pray for such other reliefs deemed just and equitable in the
premises.
The Ruling of the respondent COMELEC
On August 31, 2006, the COMELEC promulgated the assailed
Resolution denying due course and dismissing the petition for initiative.
The COMELEC ruled that:
We agree with the petitioners that this Commission has the solemn
Constitutional duty to enforce and administer all laws and regulations
relative to the conduct of, as in this case, initiative.
This mandate, however, should be read in relation to the other
provisions of the Constitution particularly on initiative.
Section 2, Article XVII of the 1987 Constitution provides:
"Sec. 2. Amendments to this Constitution may, likewise, be directly
proposed by the people through initiative, upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. x x x.
The Congress shall provide for the implementation of the exercise of
this right."
The aforequoted provision of the Constitution being a non-self-
executory provision needed an enabling law for its implementation.
Thus, in order to breathe life into the constitutional right of the people
under a system of initiative to directly propose, enact, approve or
reject, in whole or in part, the Constitution, laws, ordinances, or
resolution, Congress enacted RA 6735.
However, the Supreme Court, in the landmark case of Santiago v.
Commission on Elections struck down the said law for being
incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned
The Supreme Court, likewise, declared that this Commission should be
permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation
of the system.
Thus, even if the signatures in the instant Petition appear to meet the
required minimum per centum of the total number of registered voters,
of which every legislative district is represented by at least three per
centum of the registered voters therein, still the Petition cannot be
given due course since the Supreme Court categorically declared RA
6735 as inadequate to cover the system of initiative on amendments to
the Constitution.
This Commission is not unmindful of the transcendental importance of
the right of the people under a system of initiative. However, neither
can we turn a blind eye to the pronouncement of the High Court that in
the absence of a valid enabling law, this right of the people remains
nothing but an "empty right," and that this Commission is permanently
enjoined from entertaining or taking cognizance of any petition for
initiative on amendments to the Constitution. (Citations omitted.)
Aggrieved, petitioners elevated the case to this Court on a petition for
certiorari and mandamus under Rule 65 of the Rules of Court.
The Petitioners' Case
In support of their petition, petitioners alleged, inter alia, that:
I.
THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION IN REFUSING TO TAKE
COGNIZANCE OF, AND TO GIVE DUE COURSE TO THE PETITION
FOR INITIATIVE, BECAUSE THE CITED SANTIAGO RULING OF 19
MARCH 1997 CANNOT BE CONSIDERED THE MAJORITY OPINION
OF THE SUPREME COURT EN BANC, CONSIDERING THAT UPON
ITS RECONSIDERATION AND FINAL VOTING ON 10 JUNE 1997,
NO MAJORITY VOTE WAS SECURED TO DECLARE REPUBLIC
ACT NO. 6735 AS INADEQUATE, INCOMPLETE AND
INSUFFICIENT IN STANDARD.
II.
231
THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735, REPUBLIC
ACT NO. 8189 AND EXISTING APPROPRIATION OF THE
COMELEC PROVIDE FOR SUFFICIENT DETAILS AND AUTHORITY
FOR THE EXERCISE OF PEOPLE'S INITIATIVE, THUS, EXISTING
LAWS TAKEN TOGETHER ARE ADEQUATE AND COMPLETE.
III.
THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION IN REFUSING TO TAKE
COGNIZANCE OF, AND IN REFUSING TO GIVE DUE COURSE TO
THE PETITION FOR INITIATIVE, THEREBY VIOLATING AN
EXPRESS CONSTITUTIONAL MANDATE AND DISREGARDING
AND CONTRAVENING THE WILL OF THE PEOPLE.
A.
THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE
TO THE INSTANT PETITION FOR INITIATIVE FILED BY THE
PETITIONERS.
1.
THE FRAMERS OF THE CONSTITUTION INTENDED TO GIVE THE
PEOPLE THE POWER TO PROPOSE AMENDMENTS AND THE
PEOPLE THEMSELVES ARE NOW GIVING VIBRANT LIFE TO THIS
CONSTITUTIONAL PROVISION
2.
PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19 MARCH
1997, THE RIGHT OF THE PEOPLE TO EXERCISE THE
SOVEREIGN POWER OF INITIATIVE AND RECALL HAS BEEN
INVARIABLY UPHELD
3.
THE EXERCISE OF THE INITIATIVE TO PROPOSE AMENDMENTS
IS A POLITICAL QUESTION WHICH SHALL BE DETERMINED
SOLELY BY THE SOVEREIGN PEOPLE.
4.
BY SIGNING THE SIGNATURE SHEETS ATTACHED TO THE
PETITION FOR INITIATIVE DULY VERIFIED BY THE ELECTION
OFFICERS, THE PEOPLE HAVE CHOSEN TO PERFORM THIS
SACRED EXERCISE OF THEIR SOVEREIGN POWER.
B.
THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE
TO THE INSTANT PETITION FOR INITIATIVE FILED BY THE
PETITIONERS
C.
THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V.
COMELEC ONLY APPLIES TO THE DELFIN PETITION.
1.
IT IS THE DISPOSITIVE PORTION OF THE DECISION AND NOT
OTHER STATEMENTS IN THE BODY OF THE DECISION THAT
GOVERNS THE RIGHTS IN CONTROVERSY.
IV.
THE HONORABLE PUBLIC RESPONDENT FAILED OR
NEGLECTED TO ACT OR PERFORM A DUTY MANDATED BY LAW.
A.
THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE
INITIATIVE FOR PLEBISCITE.3
Petitioners Failed to Allege and Demonstrate All the Essential
Facts To Establish the Right to a Writ of Certiorari
Section 1, Rule 65 of the Rules of Court reads:
Sec. 1. Petition for certiorari. – When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in
excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary course of law,
a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice
may require.
The petition shall be accompanied by a certified true copy of the
judgment, order or resolution subject thereof, copies of all pleadings
and documents relevant and pertinent thereto, and a sworn certification
of non-forum shopping as provided in the third paragraph of Section 3,
Rule 46.
A writ for certiorari may issue only when the following requirements are
set out in the petition and established:
(1) the writ is directed against a tribunal, a board or any officer
exercising judicial or quasi-judicial functions;
(2) such tribunal, board or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and
(3) there is no appeal or any plain, speedy and adequate remedy in the
ordinary course of law. x x x4
The Court has invariably defined "grave abuse of discretion," thus:
By grave abuse of discretion is meant such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, and it must
be shown that the discretion was exercised arbitrarily or despotically.
For certiorari to lie, there must be a capricious, arbitrary and whimsical
exercise of power, the very antithesis of the judicial prerogative in
accordance with centuries of both civil law and common law
traditions.5
There is thus grave abuse of discretion on the part of the COMELEC
when it acts in a capricious, whimsical, arbitrary or despotic manner in
the exercise of its judgment amounting to lack of jurisdiction. Mere
abuse of discretion is not enough.6 The only question involved is
jurisdiction, either the lack or excess thereof, and abuse of discretion
warrants the issuance of the extraordinary remedy of certiorari only
when the same is grave, as when the power is exercised in an arbitrary
or despotic manner by reason of passion, prejudice or personal
hostility. A writ of certiorari is a remedy designed for the correction of
errors of jurisdiction and not errors of judgment.7 An error of judgment
is one in which the court may commit in the exercise of its jurisdiction,
which error is reversible only by an appeal.8
In the present case, it appears from the assailed Resolution of the
COMELEC that it denied the petition for initiative solely in obedience to
the mandate of this Court in Santiago v. Commission on Elections.9 In
said case, the Court En Banc permanently enjoined the COMELEC
from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been
validly enacted to provide for the implementation of the system. When
the COMELEC denied the petition for initiative, there was as yet no
valid law enacted by Congress to provide for the implementation of the
system.
It is a travesty for the Court to declare the act of the COMELEC in
denying due course to the petition for initiative as "capricious, despotic,
oppressive or whimsical exercise of judgment as is equivalent to lack
of jurisdiction." In fact, in so doing, the COMELEC merely followed or
applied, as it ought to do, the Court's ruling in Santiago to the effect
that Section 2, Article XVII of the Constitution on the system of initiative
is a non self-executory provision and requires an enabling law for its
implementation. In relation thereto, RA 6735 was found by the Court to
be "incomplete, inadequate, or wanting in essential terms and
conditions" to implement the constitutional provision on initiative.
Consequently, the COMELEC was "permanently enjoined from
entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been
validly enacted to provide for the implementation of the system." The
decision of the Court En Banc interpreting RA 6735 forms part of the
legal system of the Philippines.10 And no doctrine or principle laid
down by the Court En Banc may be modified or reversed except by the
Court En Banc,11 certainly not by the COMELEC. Until the Court En
Banc modifies or reverses its decision, the COMELEC is bound to
follow the same.12 As succinctly held in Fulkerson v. Thompson:13
Whatever was before the Court, and is disposed of, is considered as
finally settled. The inferior court is bound by the judgment or decree as
the law of the case, and must carry it into execution according to the
mandate. The inferior court cannot vary it, or judicially examine it for
any other purpose than execution. It can give no other or further relief
as to any matter decided by the Supreme Court even where there is
error apparent; or in any manner intermeddle with it further than to
execute the mandate and settle such matters as have been remanded,
not adjudicated by the Supreme Court….
The principles above stated are, we think, conclusively established by
the authority of adjudged cases. And any further departure from them
would inevitably mar the harmony of the whole judiciary system, bring
its parts into conflict, and produce therein disorganization, disorder,
and incalculable mischief and confusion. Besides, any rule allowing the
inferior courts to disregard the adjudications of the Supreme Court, or
to refuse or omit to carry them into execution would be repugnant to
the principles established by the constitution, and therefore void.14
At this point, it is well to recall the factual context of Santiago as well as
the pronouncement made by the Court therein. Like petitioners in the
232
instant case, in Santiago, Atty. Jesus Delfin, the People's Initiative for
Reforms, Modernization and Action (PIRMA), et al., invoked Section 2,
Article XVII of the Constitution as they filed with the COMELEC a
"Petition to Amend the Constitution, to Lift Term Limits of Elective
Officials, By People's Initiative" (the Delfin petition). They asked the
COMELEC to issue an order fixing the time and date for signature
gathering all over the country; causing the necessary publications of
said order and their petition in newspapers of general and local
circulation and instructing municipal election registrars in all regions all
over the country and to assist petitioners in establishing signing
stations. Acting thereon, the COMELEC issued the order prayed for.
Senator Miriam Santiago, et al. forthwith filed with this Court a petition
for prohibition to enjoin the COMELEC from implementing its order.
The Court, speaking through Justice Hilario G. Davide, Jr. (later Chief
Justice), granted the petition as it declared:
1. RA 6735 "incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is
concerned";
2. COMELEC Resolution No. 230015 invalid insofar as it prescribed
rules and regulations on the conduct of initiative on amendments to the
Constitution because the COMELEC is without authority to promulgate
the rules and regulations to implement the exercise of the right of the
people to directly propose amendments to the Constitution through the
system of initiative; and
3. The Delfin petition insufficient as it did not contain the required
number of signatures of registered voters.
The Court concluded in Santiago that "the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation
of the system." The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered:
a) GRANTING the instant petition;
b) DECLARING RA 6735 inadequate to cover the system of initiative
on amendments to the Constitution, and to have failed to provide
sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the
Commission on Elections prescribing rules and regulations on the
conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the
Delfin petition (UND-96-037).
The Temporary Restraining Order issued on December 18, 1996 is
made permanent as against the Commission on Elections, but is
LIFTED as against private respondents.16
The Court reiterated its ruling in Santiago in another petition which was
filed with the Court by PIRMA and the spouses Alberto and Carmen
Pedrosa (who were parties in Santiago) docketed as PIRMA v.
Commission on Elections.17 The said petitioners, undaunted by
Santiago and claiming to have gathered 5,793,213 signatures, filed a
petition with the COMELEC praying, inter alia, that COMELEC officers
be ordered to verify all the signatures collected in behalf of the petition
and, after due hearing, that it (COMELEC) declare the petition
sufficient for the purpose of scheduling a plebiscite to amend the
Constitution. Like the Delfin petition in Santiago, the PIRMA petition
proposed to submit to the people in a plebiscite the amendment to the
Constitution on the lifting of the term limits of elected officials.
The opinion of the minority that there was no doctrine enunciated by
the Court in PIRMA has no basis. The COMELEC, in its Resolution
dated July 8, 1997, dismissed the PIRMA petition citing the permanent
restraining order issued against it by the Court in Santiago. PIRMA and
the spouses Pedrosa forthwith elevated the matter to the Court alleging
grave abuse of discretion on the part of the COMELEC in refusing to
exercise jurisdiction over, and thereby dismissing, their petition for
initiative to amend the Constitution.
The Court dismissed outright, by a unanimous vote, the petition filed by
PIRMA and the spouses Albert Pedrosa. The Court declared that the
COMELEC merely complied with the dispositions in the decision of the
Court in Santiago and, hence, cannot be held to have committed a
grave abuse of its discretion in dismissing the petition before it:
The Court ruled, first, by a unanimous vote, that no grave abuse of
discretion could be attributed to the public respondent COMELEC in
dismissing the petition filed by PIRMA therein, it appearing that it only
complied with the dispositions in the Decision of this Court in G.R. No.
127325, promulgated on March 19, 1997, and its Resolution of June
10, 1997.
The Court next considered the question of whether there was need to
resolve the second issue posed by the petitioners, namely, that the
Court re-examine its ruling as regards R.A. 6735. On this issue, the
Chief Justice and six (6) other members of the Court, namely,
Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted
that there was no need to take it up. Vitug, J., agreed that there was no
need for re-examination of said second issue since the case a bar is
not the proper vehicle for that purpose. Five (5) other members of the
Court, namely, Melo, Puno, Francisco, Hermosisima and Panganiban,
JJ., opined that there was need for such a re-examination. x x x
WHEREFORE, the petition is DISMISSED.18 (Underscoring supplied.)
In the present case, the Office of the Solicitor General (OSG) takes the
side of petitioners and argues that the COMELEC should not have
applied the ruling in Santiago to the petition for initiative because the
permanent injunction therein referred only to the Delfin petition. The
OSG buttresses this argument by pointing out that the Temporary
Restraining Order dated December 18, 1996 that was made
permanent in the dispositive portion referred only to the Delfin petition.
The OSG's attempt to isolate the dispositive portion from the body of
the Court's decision in Santiago is futile. It bears stressing that the
dispositive portion must not be read separately but in connection with
the other portions of the decision of which it forms a part. To get to the
true intent and meaning of a decision, no specific portion thereof
should be resorted to but the same must be considered in its entirety.
Hence, a resolution or ruling may and does appear in other parts of the
decision and not merely in the fallo thereof.19
The pronouncement in the body of the decision in Santiago
permanently enjoining the COMELEC "from entertaining or taking
cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to
provide for the implementation of the system" is thus as much a part of
the Court's decision as its dispositive portion. The ruling of this Court is
of the nature of an in rem judgment barring any and all Filipinos from
filing a petition for initiative on amendments to the Constitution until a
sufficient law shall have been validly enacted. Clearly, the COMELEC,
in denying due course to the present petition for initiative on
amendments to the Constitution conformably with the Court's ruling in
Santiago did not commit grave abuse of discretion. On the contrary, its
actuation is in keeping with the salutary principle of hierarchy of courts.
For the Court to find the COMELEC to have abused its discretion when
it dismissed the amended petition based on the ruling of this Court in
Santiago would be sheer judicial apostasy.
As eloquently put by Justice J.B.L. Reyes, "there is only one Supreme
Court from whose decisions all other courts should take their
bearings."20 This truism applies with equal force to the COMELEC as
a quasi-judicial body for, after all, judicial decisions applying or
interpreting laws or the Constitution "assume the same authority as the
statute itself and, until authoritatively abandoned, necessarily become,
to the extent that they are applicable, the criteria which must control
the actuations not only of those called upon to abide thereby but also
of those duty bound to enforce obedience thereto."21
Petitioners Cannot Ascribe
Grave Abuse of Discretion on
the COMELEC Based on the
Minority Opinion in Santiago
It is elementary that the opinion of the majority of the members of the
Court, not the opinion of the minority, prevails. As a corollary, the
decision of the majority cannot be modified or reversed by the minority
of the members of the Court.
However, to eschew the binding effect of Santiago, petitioners argue,
albeit unconvincingly, that the Court's declaration therein on the
inadequacy, incompleteness and insufficiency of RA 6735 to
implement the system of initiative to propose constitutional
amendments did not constitute the majority opinion. This contention is
utterly baseless.
Santiago was concurred in, without any reservation, by eight
Justices,22 or the majority of the members of the Court, who actually
took part in the deliberations thereon. On the other hand, five
Justices,23 while voting for the dismissal of the Delfin petition on the
ground of insufficiency, dissented from the majority opinion as they
maintained the view that RA 6735 was sufficient to implement the
system of initiative.
Given that a clear majority of the members of the Court, eight Justices,
concurred in the decision in Santiago, the pronouncement therein that
RA 6735 is "incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is
concerned" constitutes a definitive ruling on the matter.
In the Resolution dated June 10, 1997, the motions for reconsideration
of the Santiago decision were denied with finality as only six Justices,
or less than the majority, voted to grant the same. The Resolution
expressly stated that the motion for reconsideration failed "to persuade
the requisite majority of the Court to modify or reverse the Decision of
19 March 1977."24 In fine, the pronouncement in Santiago as
233
embodied in the Decision of March 19, 1997 remains the definitive
ruling on the matter.
It bears stressing that in PIRMA, petitioners prayed for the Court to
resolve the issue posed by them and to re-examine its ruling as
regards RA 6735. By a vote of seven members of the Court, including
Justice Justo P. Torres, Jr. and Justice Jose C. Vitug, the Court voted
that there was no need to resolve the issue. Five members of the Court
opined that there was a need for the re-examination of said ruling.
Thus, the pronouncement of the Court in Santiago remains the law of
the case and binding on petitioners.
If, as now claimed by the minorty, there was no doctrine enunciated by
the Court in Santiago, the Court should have resolved to set aside its
original resolution dismissing the petition and to grant the motion for
reconsideration and the petition. But the Court did not. The Court
positively and unequivocally declared that the COMELEC merely
followed the ruling of the Court in Santiago in dismissing the petition
before it. No less than Senior Justice Reynato S. Puno concurred with
the resolution of the Court. It behooved Justice Puno to dissent from
the ruling of the Court on the motion for reconsideration of petitioners
precisely on the ground that there was no doctrine enunciated by the
Court in Santiago. He did not. Neither did Chief Justice Artemio V.
Panganiban, who was a member of the Court.
That RA 6735 has failed to validly implement the people's right to
directly propose constitutional amendments through the system of
initiative had already been conclusively settled in Santiago as well as in
PIRMA. Heeding these decisions, several lawmakers, including no less
than Solicitor General Antonio Eduardo Nachura when he was then a
member of the House of Representatives,25 have filed separate bills to
implement the system of initiative under Section 2, Article XVII of the
Constitution.
In the present Thirteenth (13th) Congress, at least seven (7) bills are
pending. In the Senate, the three (3) pending bills are: Senate Bill No.
119 entitled An Act Providing for People's Initiative to Amend the
Constitution introduced by Senator Luisa "Loi" P. Ejercito Estrada;
Senate Bill No. 2189 entitled An Act Providing for People's Initiative to
Amend the Constitution introduced by Senator Miriam Defensor
Santiago; and Senate Bill No. 2247 entitled An Act Providing for a
System of People's Initiative to Propose Amendments to the
Constitution introduced by Senator Richard Gordon.
In the House of Representatives, there are at least four (4) pending
bills: House Bill No. 05281 filed by Representative Carmen Cari, House
Bill No. 05017 filed by Representative Imee Marcos, House Bill No.
05025 filed by Representative Roberto Cajes, and House Bill No.
05026 filed by Representative Edgardo Chatto. These House bills are
similarly entitled An Act Providing for People's Initiative to Amend the
Constitution.
The respective explanatory notes of the said Senate and House bills
uniformly recognize that there is, to date, no law to govern the process
by which constitutional amendments are introduced by the people
directly through the system of initiative. Ten (10) years after Santiago
and absent the occurrence of any compelling supervening event, i.e.,
passage of a law to implement the system of initiative under Section 2,
Article XVII of the Constitution, that would warrant the re-examination
of the ruling therein, it behooves the Court to apply to the present case
the salutary and well-recognized doctrine of stare decisis. As earlier
shown, Congress and other government agencies have, in fact, abided
by Santiago. The Court can do no less with respect to its own ruling.
Contrary to the stance taken by petitioners, the validity or
constitutionality of a law cannot be made to depend on the individual
opinions of the members who compose it – the Supreme Court, as an
institution, has already determined RA 6735 to be "incomplete,
inadequate, or wanting in essential terms and conditions insofar as
initiative on amendments to the Constitution is concerned" and
therefore the same remains to be so regardless of any change in the
Court's composition.26 Indeed, it is vital that there be stability in the
courts in adhering to decisions deliberately made after ample
consideration. Parties should not be encouraged to seek re-
examination of determined principles and speculate on fluctuation of
the law with every change in the expounders of it.27
Proposals to Revise the Constitution,
As in the Case of the Petitioners'
Proposal to Change the Form of
Government, Cannot be Effected
Through the System of Initiative,
Which by Express Provision of
Section 2, Article XVII of the
Constitution, is Limited to Amendments
Even granting arguendo the Court, in the present case, abandons its
pronouncement in Santiago and declares RA 6735, taken together with
other extant laws, sufficient to implement the system of initiative, still,
the amended petition for initiative cannot prosper. Despite the
denomination of their petition, the proposals of petitioners to change
the form of government from the present bicameral-presidential to a
unicameral-parliamentary system of government are actually for the
revision of the Constitution.
Petitioners propose to "amend" Articles VI and VII of the Constitution in
this manner:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read
as follows:
"Section 1. (1) The legislative and executive powers shall be vested in
a unicameral Parliament which shall be composed of as many
members as may be provided by law, to be apportioned among the
provinces, representative districts, and cities in accordance with the
number of their respective inhabitants, with at least three hundred
thousand inhabitants per district, and on the basis of a uniform and
progressive ratio. Each district shall comprise, as far as practicable,
contiguous, compact and adjacent territory, and each province must
have at least one member.
"(2) Each Member of Parliament shall be a natural-born citizen of the
Philippines, at least twenty-five years old on the day of the election, a
resident of his district for at least one year prior thereto, and shall be
elected by the qualified voters of his district for a term of five years
without limitation as to the number thereof, except those under the
party-list system which shall be provided for by law and whose number
shall be equal to twenty per centum of the total membership coming
from the parliamentary districts."
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are
hereby amended to read, as follows:
"Section 1. There shall be a President who shall be the Head of State.
The executive power shall be exercised by a Prime Minister, with the
assistance of the Cabinet. The Prime Minister shall be elected by a
majority of all the Members of Parliament from among themselves. He
shall be responsible to the Parliament for the program of government.
C. For the purpose of insuring an orderly transition from the bicameral-
Presidential to a unicameral-Parliamentary form of government, there
shall be a new Article XVIII, entitled "Transitory Provisions," which shall
read as follows:
Section 1. (1) The incumbent President and Vice President shall serve
until the expiration of their term at noon on the thirtieth day of June
2010 and shall continue to exercise their powers under the 1987
Constitution unless impeached by a vote of two thirds of all the
members of the interim parliament.,
(2) In case of death, permanent disability, resignation or removal from
office of the incumbent President, the incumbent Vice President shall
succeed as President. In case of death, permanent disability,
resignation or removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all the powers
and responsibilities of Prime Minister under Article VII as amended.
Section 2. "Upon the expiration of the term of the incumbent President
and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7
of Article VI of the 1987 Constitution which shall hereby be amended
and Sections 18 and 24 which shall be deleted, all other Sections of
Article VI are hereby retained and renumbered sequentially as Section
2, ad seriatim up to 26, unless they are inconsistent with the
Parliamentary system of government, in which case, they shall be
amended to conform with a unicameral parliamentary form of
government; provided, however, that any and all references therein to
"Congress," "Senate," "House of Representatives" and "House of
Congress," "Senator[s] or "Member[s] of the House of
Representatives" and "House of Congress" shall be changed to read
"Parliament"; that any and all references therein to "Member[s] of the
House of Representatives" shall be changed to read as "Member[s] of
Parliament" and any and all references to the "President" and or
"Acting President" shall be changed to read "Prime Minister."
Section 3. "Upon the expiration of the term of the incumbent President
and Vice President, with the exception of Sections 1, 2, 3 and 4 of
Article VII of the 1987 Constitution which are hereby amended and
Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other
Sections of Article VII shall be retained and renumbered sequentially
as Section 2, ad seriatim up to 14, unless they shall be inconsistent
with Section 1 hereof, in which case they shall be deemed amended so
as to conform to a unicameral Parliamentary System of government;
provided, however, that any and all references therein to "Congress,"
"Senate," "House of Representatives" and "Houses of Congress" shall
be changed to read "Parliament"; that any and all references therein to
"Member[s] of Congress," "Senator[s]" or "Member[s] of the House of
Parliament" and any and all references to the "President" and of
"Acting President" shall be changed to read "Prime Minister."
Section 4. (1) There shall exist, upon the ratification of these
amendments, an interim Parliament which shall continue until the
Members of the regular Parliament shall have been elected and shall
have qualified. It shall be composed of the incumbent Members of the
Senate and the House of Representatives and the incumbent Members
of the Cabinet who are heads of executive departments.
234
(2) The incumbent Vice President shall automatically be a Member of
Parliament until noon of the thirtieth day of June 2010. He shall also be
a member of the cabinet and shall head a ministry. He shall initially
convene the interim Parliament and shall preside over its session for
the election of the interim Prime Minister and until the Speaker shall
have been elected by a majority vote of all the members of the interim
Parliament from among themselves.
(3) Senators whose term of office ends in 2010 shall be Members of
Parliament until noon of the thirtieth day of June 2010.
(4) Within forty-five days from ratification of these amendments, the
interim Parliament shall convene to propose amendments to, or
revisions of, this Constitution consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.
"Section 5. (1) The incumbent President, who is the Chief Executive,
shall nominate, from among the members of the interim Parliament, an
interim Prime Minister, who shall be elected by a majority vote of the
members thereof. The interim Prime Minister shall oversee the various
ministries and shall perform such powers and responsibilities as may
be delegated to him by the incumbent President."
(2) The interim Parliament shall provide for the election of the members
of Parliament, which shall be synchronized and held simultaneously
with the election of all local government officials. [Thereafter, the Vice-
President, as Member of Parliament, shall immediately convene the
Parliament and shall initially preside over its session for the purpose of
electing the Prime Minister, who shall be elected by a majority vote of
all its members, from among themselves.] The duly-elected Prime
Minister shall continue to exercise and perform the powers, duties and
responsibilities of the interim Prime Minister until the expiration of the
term of the incumbent President and Vice President.28
Petitioners claim that the required number of signatures of registered
voters have been complied with, i.e., the signatories to the petition
constitute twelve percent (12%) of all the registered voters in the
country, wherein each legislative district is represented by at least
three percent (3%) of all the registered voters therein. Certifications
allegedly executed by the respective COMELEC Election Registrars of
each municipality and city verifying these signatures were attached to
the petition for initiative. The verification was allegedly done on the
basis of the list of registered voters contained in the official COMELEC
list used in the immediately preceding election.
The proposition, as formulated by petitioners, to be submitted to the
Filipino people in a plebiscite to be called for the said purpose reads:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII
OF THE 1987 CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL
TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO THE OTHER?29
According to petitioners, the proposed amendment of Articles VI and
VII would effect a more efficient, more economical and more
responsive government. The parliamentary system would allegedly
ensure harmony between the legislative and executive branches of
government, promote greater consensus, and provide faster and more
decisive governmental action.
Sections 1 and 2 of Article XVII pertinently read:
Article XVII
SECTION 1. Any amendment to, or revision of, this Constitution may
be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
(2) A constitutional convention.
SECTION 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of
this right.
It can be readily gleaned that the above provisions set forth different
modes and procedures for proposals for the amendment and revision
of the Constitution:
1. Under Section 1, Article XVII, any amendment to, or revision of, the
Constitution may be proposed by –
a. Congress, upon a vote of three-fourths of all its members; or

b. A constitutional convention.
2. Under Section 2, Article XVII, amendments to the Constitution may
be likewise directly proposed by the people through initiative.
The framers of the Constitution deliberately adopted the terms
"amendment" and "revision" and provided for their respective modes
and procedures for effecting changes of the Constitution fully cognizant
of the distinction between the two concepts. Commissioner Jose E.
Suarez, the Chairman of the Committee on Amendments and
Transitory Provisions, explained:
MR. SUAREZ. One more point, and we will be through.
We mentioned the possible use of only one term and that is,
"amendment." However, the Committee finally agreed to use the terms
– "amendment" or "revision" when our attention was called by the
honorable Vice-President to the substantial difference in the
connotation and significance between the said terms. As a result of our
research, we came up with the observations made in the famous – or
notorious – Javellana doctrine, particularly the decision rendered by
Honorable Justice Makasiar, wherein he made the following distinction
between "amendment" and "revision" of an existing Constitution:
"Revision" may involve a rewriting of the whole Constitution. On the
other hand, the act of amending a constitution envisages a change of
specific provisions only. The intention of an act to amend is not the
change of the entire Constitution, but only the improvement of specific
parts or the addition of provisions deemed essential as a consequence
of new conditions or the elimination of parts already considered
obsolete or unresponsive to the needs of the times.
The 1973 Constitution is not a mere amendment to the 1935
Constitution. It is a completely new fundamental Charter embodying
new political, social and economic concepts.
So, the Committee finally came up with the proposal that these two
terms should be employed in the formulation of the Article governing
amendments or revisions to the new Constitution.30
Further, the framers of the Constitution deliberately omitted the term
"revision" in Section 2, Article XVII of the Constitution because it was
their intention to reserve the power to propose a revision of the
Constitution to Congress or the constitutional convention. Stated in
another manner, it was their manifest intent that revision thereof shall
not be undertaken through the system of initiative. Instead, the revision
of the Constitution shall be done either by Congress or by a
constitutional convention.
It is significant to note that, originally, the provision on the system of
initiative was included in Section 1 of the draft Article on Amendment or
Revision proposed by the Committee on Amendments and Transitory
Provisions. The original draft provided:
SEC. 1. Any amendment to, or revision of, this Constitution may be
proposed:
(a) by the National Assembly upon a vote of three-fourths of all its
members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in
Article __ Section __ of the Constitution.31
However, after deliberations and interpellations, the members of the
Commission agreed to remove the provision on the system of initiative
from Section 1 and, instead, put it under a separate provision, Section
2. It was explained that the removal of the provision on initiative from
the other "traditional modes" of changing the Constitution was precisely
to limit the former (system of initiative) to amendments to the
Constitution. It was emphasized that the system of initiative should not
extend to revision.
MR. SUAREZ. Thank you, Madam President.
May we respectfully call the attention of the Members of the
Commission that pursuant to the mandate given to us last night, we
submitted this afternoon a complete Committee Report No. 7 which
embodies the proposed provision governing the matter of initiative.
This is now covered by Section 2 of the complete committee report.
With the permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite
held, directly propose amendments to this Constitution thru initiative
upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report
No. 7. This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional modes
of amending the Constitution as embodied in Section 1. The committee
members felt that this system of initiative should be limited to
235
amendments to the Constitution and should not extend to the revision
of the entire Constitution, so we removed it from the operation of
Section 1 of the proposed Article on Amendment or Revision. x x x32
The intention to exclude "revision" of the Constitution as a mode that
may be undertaken through the system of initiative was reiterated and
made clear by Commissioner Suarez in response to a suggestion of
Commissioner Felicitas Aquino:
MR. SUAREZ. Section 2 must be interpreted together with the
provisions of Section 4, except that in Section 4, as it is presently
drafted, there is no take-off date for the 60-day and 90-day periods.
MS. AQUINO. Yes. In other words, Section 2 is another alternative
mode of proposing amendments to the Constitution which would
further require the process of submitting it in a plebiscite, in which case
it is not self-executing.
MR. SUAREZ. No, not unless we settle and determine the take-off
period.
MS. AQUINO. In which case, I am seriously bothered by providing this
process of initiative as a separate section in the Article on Amendment.
Would the sponsor be amenable to accepting an amendment in terms
of realigning Section 2 as another subparagraph (c) of Section 1,
instead of setting it up as another separate section as if it were a self-
executing provision?
MR SUAREZ. We would be amenable except that, as we clarified a
while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which contemplates
a total overhaul of the Constitution. That was the sense conveyed by
the Committee.
MS. AQUINO. In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to include
the process of revision; whereas, the process of initiation to amend,
which is given to the public, would only apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned by the
Committee.33
Then Commissioner Hilario P. Davide, Jr. (later Chief Justice) also
made the clarification with respect to the observation of Commissioner
Regalado Maambong:
MR. MAAMBONG. My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendments." Does it not cover the
word "revision" as defined by Commissioner Padilla when he made the
distinction between the words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision"
should be covered by Section 1. So insofar as initiative is concerned, it
can only relate to "amendments" not "revision."34
After several amendments, the Commission voted in favor of the
following wording of Section 2:
AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE
UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER OF REGISTERED VOTERS OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST
THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED
WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
Sections 1 and 2, Article XVII as eventually worded read:
Article XVII
SECTION 1. Any amendment to, or revision of, this Constitution may
be proposed by:
(3) The Congress, upon a vote of three-fourths of all its Members; or
(4) A constitutional convention.
SEC. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative, upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of
this right.

The final text of Article XVII on Amendments or Revisions clearly
makes a substantial differentiation not only between the two terms but
also between two procedures and their respective fields of application.
Ineluctably, the system of initiative under Section 2, Article XVII as a
mode of effecting changes in the Constitution is strictly limited to
amendments – not to a revision – thereof.
As opined earlier, the framers of the Constitution, in providing for
"amendment" and "revision" as different modes of changing the
fundamental law, were cognizant of the distinction between the two
terms. They particularly relied on the distinction made by Justice Felix
Antonio in his concurring opinion in Javellana v. Executive
Secretary,35 the controversial decision which gave imprimatur to the
1973 Constitution of former President Ferdinand E. Marcos, as follows:
There is clearly a distinction between revision and amendment of an
existing constitution. Revision may involve a rewriting of the whole
constitution. The act of amending a constitution, on the other hand,
envisages a change of only specific provisions. The intention of an act
to amend is not the change of the entire constitution, but only the
improvement of specific parts of the existing constitution of the addition
of provisions deemed essential as a consequence of new conditions or
the elimination of parts already considered obsolete or unresponsive to
the needs of the times. The 1973 Constitution is not a mere
amendment to the 1935 Constitution. It is a completely new
fundamental charter embodying new political, social and economic
concepts.36
Other elucidation on the distinction between "amendment" and
"revision" is enlightening. For example, Dean Vicente G. Sinco, an
eminent authority on political law, distinguished the two terms in this
manner:
Strictly speaking, the act of revising a constitution involves alterations
of different portions of the entire document. It may result in the
rewriting either of the whole constitution, or the greater portion of it, or
perhaps only some of its important provisions. But whatever results the
revisions may produce, the factor that characterizes it as an act of
revision is the original intention and plan authorized to be carried out.
That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered
or suppressed or whether the whole document should be replaced with
an entirely new one.
The act of amending a constitution, on the other hand, envisages a
change of only a few specific provisions. The intention of an act to
amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather is to
improve the specific parts of the existing constitution or to add to it
provisions deemed essential on account of changed conditions or to
suppress portions of it that seemed obsolete, or dangerous, or
misleading in their effect.37
In the United States, the Supreme Court of Georgia in Wheeler v.
Board of Trustees38 had the occasion to make the distinction between
the two terms with respect to Ga.L. 1945, an instrument which
"amended" the 1877 Constitution of Georgia. It explained the term
"amendment:"
"Amendment" of a statute implies its survival and not destruction. It
repeals or changes some provision, or adds something thereto. A law
is amended when it is in whole or in part permitted to remain, and
something is added to or taken from it, or it is in some way changed or
altered to make it more complete or perfect, or to fit it the better to
accomplish the object or purpose for which it was made, or some other
object or purpose.39
On the other hand, the term "revision" was explained by the said US
appellate court:
x x x When a house is completely demolished and another is erected
on the same location, do you have a changed, repaired and altered
house, or do you have a new house? Some of the materials contained
in the old house may be used again, some of the rooms may be
constructed the same, but this does not alter the fact that you have
altogether another or a new house. We conclude that the instrument as
contained in Ga.L. 1945, pp. 8 to 89, inclusive, is not an amendment to
the constitution of 1877; but on the contrary it is a completely revised
or new constitution.40
Fairly recently, Fr. Joaquin Bernas, SJ, a member of the Constitutional
Commission, expounded on the distinction between the two terms
thus:
An amendment envisages an alteration of one or a few specific and
separable provisions. The guiding original intention of an amendment
is to improve specific parts or to add new provisions deemed
necessary to meet new conditions or to suppress specific portions that
may have become obsolete or that are judged to be dangerous. In
revision, however, the guiding original intention and plan contemplate a
re-examination of the entire document – or of provisions of the
document (which have overall implications for the entire document or
236
for the fundamental philosophical underpinnings of the document) – to
determine how and to what extent it should be altered. Thus, for
instance, a switch from the presidential system to a parliamentary
system would be a revision because of its overall impact on the entire
constitutional structure. So would a switch from a bicameral system to
a unicameral system because of its effect on other important provisions
of the Constitution.
It is thus clear that what distinguishes revision from amendment is not
the quantum of change in the document. Rather, it is the fundamental
qualitative alteration that effects revision. Hence, I must reject the
puerile argument that the use of the plural form of "amendments"
means that a revision can be achieved by the introduction of a
multiplicity of amendments!41
Given that revision necessarily entails a more complex, substantial and
far-reaching effects on the Constitution, the framers thereof wisely
withheld the said mode from the system of initiative. It should be
recalled that it took the framers of the present Constitution four months
from June 2, 1986 until October 15, 1986 to come up with the draft
Constitution which, as described by the venerable Justice Cecilia
Muñoz Palma, the President of the Constitutional Commission of 1986,
"gradually and painstakingly took shape through the crucible of
sustained sometimes passionate and often exhilarating debates that
intersected all dimensions of the national life."42
Evidently, the framers of the Constitution believed that a revision
thereof should, in like manner, be a product of the same extensive and
intensive study and debates. Consequently, while providing for a
system of initiative where the people would directly propose
amendments to the Constitution, they entrusted the formidable task of
its revision to a deliberative body, the Congress or Constituent
Assembly.
The Constitution is the fundamental law of the state, containing the
principles upon which the government is founded, and regulating the
division of sovereign powers, directing to what persons each of those
powers is to be confided and the manner in which it is to be
exercised.43 The Philippines has followed the American constitutional
legal system in the sense that the term constitution is given a more
restricted meaning, i.e., as a written organic instrument, under which
governmental powers are both conferred and circumscribed.44
The Constitution received its force from the express will of the people.
An overwhelming 16,622,111, out of 21,785,216 votes cast during the
plebiscite, or 76.30% ratified the present Constitution on February 2,
1987.45 In expressing that will, the Filipino people have incorporated
therein the method and manner by which the same can be amended
and revised, and when the electorate have incorporated into the
fundamental law the particular manner in which the same may be
altered or changed, then any course which disregards that express will
is a direct violation of the fundamental law.46
Further, these provisions having been incorporated in the Constitution,
where the validity of a constitutional amendment or revision depends
upon whether such provisions have been complied with, such question
presents for consideration and determination a judicial question, and
the courts are the only tribunals vested with power under the
Constitution to determine such question.47
Earlier, it was mentioned that Article XVII, by the use of the terms
"amendment" and "revision," clearly makes a differentiation not only
between the two terms but also between two procedures and their
respective fields of application. On this point, the case of McFadden v.
Jordan48 is instructive. In that case, a "purported initiative amendment"
(referred to as the proposed measure) to the State Constitution of
California, then being proposed to be submitted to the electors for
ratification, was sought to be enjoined. The proposed measure,
denominated as "California Bill of Rights," comprised a single new
article with some 208 subsections which would repeal or substantially
alter at least 15 of the 25 articles of the California State Constitution
and add at least four new topics. Among the likely effects of the
proposed measure were to curtail legislative and judicial functions,
legalize gaming, completely revise the taxation system and reduce the
powers of cities, counties and courts. The proposed measure also
included diverse matters as ministers, mines, civic centers, liquor
control and naturopaths.
The Supreme Court of California enjoined the submission of the
proposed measure to the electors for ratification because it was not an
"amendment" but a "revision" which could only be proposed by a
convention. It held that from an examination of the proposed measure
itself, considered in relation to the terms of the California State
Constitution, it was clear that the proposed initiative enactment
amounted substantially to an attempted revision, rather than
amendment, thereof; and that inasmuch as the California State
Constitution specifies (Article XVIII §2 thereof) that it may be revised by
means of constitutional convention but does not provide for revision by
initiative measure, the submission of the proposed measure to the
electorate for ratification must be enjoined.
As piercingly enunciated by the California State Supreme Court in
McFadden, the differentiation required (between amendment and
revision) is not merely between two words; more accurately it is
between two procedures and between their respective fields of
application. Each procedure, if we follow elementary principles of
statutory construction, must be understood to have a substantial field
of application, not to be a mere alternative procedure in the same field.
Each of the two words, then, must be understood to denote,
respectively, not only a procedure but also a field of application
appropriate to its procedure.49
Provisions regulating the time and mode of effecting organic changes
are in the nature of safety-valves – they must not be so adjusted as to
discharge their peculiar function with too great facility, lest they
become the ordinary escape-pipes of party passion; nor, on the other
hand, must they discharge it with such difficulty that the force needed
to induce action is sufficient also to explode the machine. Hence, the
problem of the Constitution maker is, in this particular, one of the most
difficult in our whole system, to reconcile the requisites for progress
with the requisites for safety.50
Like in McFadden, the present petition for initiative on amendments to
the Constitution is, despite its denomination, one for its revision. It
purports to seek the amendment only of Articles VI and VII of the
Constitution as well as to provide transitory provisions. However, as
will be shown shortly, the amendment of these two provisions will
necessarily affect other numerous provisions of the Constitution
particularly those pertaining to the specific powers of Congress and the
President. These powers would have to be transferred to the
Parliament and the Prime Minister and/or President, as the case may
be. More than one hundred (100) sections will be affected or altered
thereby:
1. Section 19 of Article III (Bill of Rights) on the power of Congress to
impose the death penalty for compelling reasons involving heinous
crimes;
2. Section 2 of Article V (Suffrage) on the power of Congress to provide
for securing the secrecy and sanctity of the ballot as well as a system
for absentee voting;
3. All 32 Sections of Article VI on the Legislative Department;
4. All 23 Sections of Article VII on the Executive Department;
5. The following Sections of Article VIII (Judicial Department):
- Section 2 on power of Congress to define, prescribe and apportion
the jurisdiction of various courts;
- Section 7 on the power of Congress to prescribe the qualifications of
judges of lower courts;
- Section 8 on the composition of Judicial Bar Council (JBC) which
includes representatives of Congress as ex officio members and on the
power of the President to appoint the regular members of the JBC;
- Section 9 on the power of the President to appoint the members of
the Supreme Court and judges of lower courts;
- Section 16 on duty of Supreme Court to make annual report to the
President and Congress.
6. The following Sections of Article IX (Constitutional Commissions);
- (B) Section 3 on duty of Civil Service Commission to make annual
report to the President and Congress;
- (B) Section 5 on power of Congress to provide by law for the
standardization of compensation of government officials;
- (B) Section 8 which provides in part that "no public officer shall
accept, without the consent of Congress, any present, emolument, etc.
x x x"
- (C) Section 1 on the power of the President to appoint the Chairman
and Commissioners of the Commission on Elections with the consent
of the Commission on Appointments;
- (C) Section 2 (7) on the power of the COMELEC to recommend to
Congress measures to minimize election spending x x x;
- (C) Section 2 (8) on the duty of the COMELEC to recommend to the
President the removal of any officer or employee it has deputized, or
the imposition of any other disciplinary action x x x;
- (C) Section 2 (9) on the duty of the COMELEC to submit to the
President and Congress a report on the conduct of election, plebiscite,
etc.;
- (C) Section 5 on the power of the President, with the favorable
recommendation of the COMELEC, to grant pardon, amnesty, parole,
or suspension of sentence for violation of election laws, rules and
regulations;
237
- (C) Section 7 which recognizes as valid votes cast in favor of
organization registered under party-list system;
- (C) Section 8 on political parties, organizations or coalitions under the
party-list system;
- (D) Section 1 (2) on the power of the President to appoint the
Chairman and Commissioners of the Commission on Audit (COA) with
the consent of the Commission of Appointments;
- Section 4 on duty of the COA to make annual report to the President
and Congress.
7. The following Sections of Article X (Local Government):
- Section 3 on the power of Congress to enact a local government
code;
- Section 4 on the power of the President to exercise general
supervision over local government units (LGUs);
- Section 5 on the power of LGUs to create their own sources of
income x x x, subject to such guidelines as Congress may provide;
- Section 11 on the power of Congress to create special metropolitan
political subdivisions;
- Section 14 on the power of the President to provide for regional
development councils x x x;
- Section 16 on the power of the President to exercise general
supervision over autonomous regions;
- Section 18 on the power of Congress to enact organic act for each
autonomous region as well as the power of the President to appoint the
representatives to the regional consultative commission;
- Section 19 on the duty of the first Congress elected under the
Constitution to pass the organic act for autonomous regions in Muslim
Mindanao and the Cordilleras.
8. The following Sections of Article XI (Accountability of Public
Officers):
- Section 2 on the impeachable officers (President, Vice-President,
etc.);
- Section 3 on impeachment proceedings (exclusive power of the
House to initiate complaint and sole power of the Senate to try and
decide impeachment cases);
- Section 9 on the power of the President to appoint the Ombudsman
and his deputies;
- Section 16 which provides in part that "x x x no loans or guaranty
shall be granted to the President, Vice-President, etc.
- Section 17 on mandatory disclosure of assets and liabilities by public
officials including the President, Vice-President, etc.
9. The following Sections of Article XII (National Economy and
Patrimony):
- Section 2 on the power of Congress to allow, by law, small-scale
utilization of natural resources and power of the President to enter into
agreements with foreign-owned corporations and duty to notify
Congress of every contract;
- Section 3 on the power of Congress to determine size of lands of
public domain;
- Section 4 on the power of Congress to determine specific limits of
forest lands;
- Section 5 on the power of Congress to provide for applicability of
customary laws;
- Section 9 on the power of Congress to establish an independent
economic and planning agency to be headed by the President;
- Section 10 on the power of Congress to reserve to Filipino citizens or
domestic corporations(at least 60% Filipino-owned) certain areas of
investment;
- Section 11 on the sole power of Congress to grant franchise for public
utilities;
- Section 15 on the power of Congress to create an agency to promote
viability of cooperatives;
- Section 16 which provides that Congress shall not, except by general
law, form private corporations;
- Section 17 on the salaries of the President, Vice-President, etc. and
the power of Congress to adjust the same;
- Section 20 on the power of Congress to establish central monetary
authority.
10. The following Sections of Article XIII (Social Justice and Human
Rights):
- Section 1 on the mandate of Congress to give highest priority to
enactment of measures that protect and enhance the right of people x
xx
- Section 4 on the power of Congress to prescribe retention limits in
agrarian reform;
- Section 18 (6) on the duty of the Commission on Human Rights to
recommend to Congress effective measures to promote human rights;
- Section 19 on the power of Congress to provide for other cases to fall
within the jurisdiction of the Commission on Human Rights.
11. The following Sections of Article XIV (Education, Science and
Technology, etc.):
- Section 4 on the power of Congress to increase Filipino equity
participation in educational institutions;
- Section 6 which provides that subject to law and as Congress may
provide, the Government shall sustain the use of Filipino as medium of
official communication;
- Section 9 on the power of Congress to establish a national language
commission;
- Section 11 on the power of Congress to provide for incentives to
promote scientific research.
12. The following Sections of Article XVI (General Provisions):
- Section 2 on the power of Congress to adopt new name for the
country, new national anthem, etc.;
- Section 5 (7) on the tour of duty of the Chief of Staff which may be
extended by the President in times of war or national emergency
declared by Congress;
- Section 11 on the power of Congress to regulate or prohibit
monopolies in mass media;
- Section 12 on the power of Congress to create consultative body to
advise the President on indigenous cultural communities.
13. The following Sections of Article XVII (Amendments or Revisions):
- Section 1 on the amendment or revision of Constitution by Congress;
- Section 2 on the duty of Congress to provide for the implementation
of the system of initiative;
- Section 3 on the power of Congress to call constitutional convention
to amend or revise the Constitution.
14. All 27 Sections of Article XVIII (Transitory Provisions).
The foregoing enumeration negates the claim that "the big bulk of the
1987 Constitution will not be affected."51 Petitioners' proposition, while
purportedly seeking to amend only Articles VI and VII of the
Constitution and providing transitory provisions, will, in fact, affect,
alter, replace or repeal other numerous articles and sections thereof.
More than the quantitative effects, however, the revisory character of
petitioners' proposition is apparent from the qualitative effects it will
have on the fundamental law.
I am not impervious to the commentary of Dean Vicente G. Sinco that
the revision of a constitution, in its strict sense, refers to a
consideration of the entire constitution and the procedure for effecting
such change; while amendment refers only to particular provisions to
be added to or to be altered in a constitution.52
For clarity and accuracy, however, it is necessary to reiterate below
Dean Sinco's more comprehensive differentiation of the terms:
Strictly speaking, the act of revising a constitution involves alterations
of different portions of the entire document. It may result in the
rewriting either of the whole constitution, or the greater portion of it, or
perhaps only some of its important provisions. But whatever results the
revisions may produce, the factor that characterizes it as an act of
revision is the original intention and plan authorized to be carried out.
That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered
or suppressed or whether the whole document should be replaced with
an entirely new one.
238
The act of amending a constitution, on the other hand, envisages a
change of only a few specific provisions. The intention of an act to
amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather is to
improve the specific parts of the existing constitution or to add to it
provisions deemed essential on account of changed conditions or to
suppress portions of it that seemed obsolete, or dangerous, or
misleading in their effect.53
A change in the form of government from bicameral-presidential to
unicameral-parliamentary, following the above distinction, entails a
revision of the Constitution as it will involve "alteration of different
portions of the entire document" and "may result in the rewriting of the
whole constitution, or the greater portion of it, or perhaps only some of
its important provisions."
More importantly, such shift in the form of government will, without
doubt, fundamentally change the basic plan and substance of the
present Constitution. The tripartite system ordained by our fundamental
law divides governmental powers into three distinct but co-equal
branches: the legislative, executive and judicial. Legislative power,
vested in Congress which is a bicameral body consisting of the House
of Representatives and the Senate, is the power to make laws and to
alter them at discretion. Executive power, vested in the President who
is directly elected by the people, is the power to see that the laws are
duly executed and enforced. Judicial power, vested in the Supreme
Court and the lower courts, is the power to construe and apply the law
when controversies arise concerning what has been done or omitted
under it. This separation of powers furnishes a system of checks and
balances which guards against the establishment of an arbitrary or
tyrannical government.
Under a unicameral-parliamentary system, however, the tripartite
separation of power is dissolved as there is a fusion between the
executive and legislative powers. Essentially, the President becomes a
mere "symbolic head of State" while the Prime Minister becomes the
head of government who is elected, not by direct vote of the people,
but by the members of the Parliament. The Parliament is a unicameral
body whose members are elected by legislative districts. The Prime
Minister, as head of government, does not have a fixed term of office
and may only be removed by a vote of confidence of the Parliament.
Under this form of government, the system of checks and balances is
emasculated.
Considering the encompassing scope and depth of the changes that
would be effected, not to mention that the Constitution's basic plan and
substance of a tripartite system of government and the principle of
separation of powers underlying the same would be altered, if not
entirely destroyed, there can be no other conclusion than that the
proposition of petitioners Lambino, et al. would constitute a revision of
the Constitution rather than an amendment or "such an addition or
change within the lines of the original instrument as will effect an
improvement or better carry out the purpose for which it was
framed."54 As has been shown, the effect of the adoption of the
petitioners' proposition, rather than to "within the lines of the original
instrument" constitute "an improvement or better carry out the purpose
for which it was framed," is to "substantially alter the purpose and to
attain objectives clearly beyond the lines of the Constitution as now
cast."55
To paraphrase McFadden, petitioners' contention that any change less
than a total one is amendatory would reduce to the rubble of absurdity
the bulwark so carefully erected and preserved. A case might,
conceivably, be presented where the question would be occasion to
undertake to define with nicety the line of demarcation; but we have no
case or occasion here.
As succinctly by Fr. Joaquin Bernas, "a switch from the presidential
system to a parliamentary system would be a revision because of its
overall impact on the entire constitutional structure. So would a switch
from a bicameral system to a unicameral system because of its effect
on other important provisions of the Constitution. It is thus clear that
what distinguishes revision from amendment is not the quantum of
change in the document. Rather, it is the fundamental qualitative
alteration that effects revision."56
The petition for initiative on amendments to the Constitution filed by
petitioners Lambino, et al., being in truth and in fact a proposal for the
revision thereof, is barred from the system of initiative upon any legally
permissible construction of Section 2, Article XVII of the Constitution.
The Petition for Initiative on
Amendments to the Constitution
is, on its Face, Insufficient in
Form and Substance
Again, even granting arguendo RA 6735 is declared sufficient to
implement the system of initiative and that COMELEC Resolution No.
2300, as it prescribed rules and regulations on the conduct of initiative
on amendments to the Constitution, is valid, still, the petition for
initiative on amendments to the Constitution must be dismissed for
being insufficient in form and substance.

Section 5 of RA 6735 requires that a petition for initiative on the
Constitution must state the following:
1. Contents or text of the proposed law sought to be enacted, approved
or rejected, amended or repealed, as the case may be;
2. The proposition;
3. The reason or reasons therefor;
4. That it is not one of the exceptions provided herein;
5. Signatures of the petitioners or registered voters; and
6. An abstract or summary proposition in not more than one hundred
(100) words which shall be legibly written or printed at the top of every
page of the petition.
Section 7 thereof requires that the signatures be verified in this wise:
SEC. 7. Verification of Signatures. – The Election Registrar shall verify
the signatures on the basis of the registry list of voters, voters'
affidavits and voters' identification cards used in the immediately
preceding election.
The law mandates upon the election registrar to personally verify the
signatures. This is a solemn and important duty imposed on the
election registrar which he cannot delegate to any other person, even
to barangay officials. Hence, a verification of signatures made by
persons other than the election registrars has no legal effect.
In patent violation of the law, several certifications submitted by
petitioners showed that the verification of signatures was made, not by
the election registrars, but by barangay officials. For example, the
certification of the election officer in Lumbatan, Lanao del Sur reads in
full:
LOCAL ELECTION OFFICER'S CERTIFICATION57
THIS IS TO CERTIFY that based on the verifications made by the
Barangay Officials in this City/Municipality, as attested to by two (2)
witnesses from the same Barangays, which is part of the 2nd
Legislative District of the Province of Lanao del Sur, the names
appearing on the attached signature sheets relative to the proposed
initiative on Amendments to the 1987 Constitution, are those of
bonafide resident of the said Barangays and correspond to the names
found in the official list of registered voters of the Commission on
Elections and/or voters' affidavit and/or voters' identification cards.
It is further certified that the total number of signatures of the registered
voters for the City/Municipality of LUMBATAN, LANAO DEL SUR as
appearing in the affixed signatures sheets is ONE THOUSAND ONE
HUNDRED EIGHTY (1,180).
April 2, 2006
IBRAHIM M. MACADATO
Election Officer
(Underscoring supplied)
The ineffective verification in almost all the legislative districts in the
Autonomous Region of Muslim Mindanao (ARMM) alone is shown by
the certifications, similarly worded as above-quoted, of the election
registrars of Buldon, Maguindanao;58 Cotabato City (Special
Province);59 Datu Odin Sinsuat, Maguindanao;60 Matanog,
Maguindanao;61 Parang, Maguindanao;62 Kabantalan,
Maguindanao;63 Upi, Maguinadano;64 Barira, Maguindanao;65
Sultan, Mastura;66 Ampatuan, Maguindanao;67 Buluan,
Maguindanao;68 Datu Paglas, Maguindanao;69 Datu Piang,
Maguindanao;70 Shariff Aguak, Maguindanao;71 Pagalungan,
Maguindanao;72 Talayan, Maguindanao;73 Gen. S.K. Pendatun,
Maguindanao;74 Mamasapano, Maguindanao;75 Talitay,
Maguindanao;76 Guindulungan, Maguindanao;77 Datu Saudi
Ampatuan, Maguindanao;78 Datu Unsay, Maguindanao;79
Pagagawan, Maguindanao;80 Rajah Buayan, Maguindanao;81
Indanan, Sulu;82 Jolo, Sulu;83 Maimbung, Sulu;84 Hadji Panglima,
Sulu;85 Pangutaran, Sulu;86 Parang, Sulu;87 Kalingalan Caluang,
Sulu;88 Luuk, Sulu;89 Panamao, Sulu;90 Pata, Sulu;91 Siasi, Sulu;92
Tapul, Sulu;93 Panglima Estino, Sulu;94 Lugus, Sulu;95 and Pandami,
Sulu. 96
Section 7 of RA 6735 is clear that the verification of signatures shall be
done by the election registrar, and by no one else, including the
barangay officials. The foregoing certifications submitted by petitioners,
instead of aiding their cause, justify the outright dismissal of their
petition for initiative. Because of the illegal verifications made by
barangay officials in the above-mentioned legislative districts, it
necessarily follows that the petition for initiative has failed to comply
with the requisite number of signatures, i.e., at least twelve percent
(12%) of the total number of registered voters, of which every
239
legislative district must be represented by at least three percent (3%) of
the registered voters therein.
Petitioners cannot disclaim the veracity of these damaging
certifications because they themselves submitted the same to the
COMELEC and to the Court in the present case to support their
contention that the requirements of RA 6735 had been complied with
and that their petition for initiative is on its face sufficient in form and
substance. They are in the nature of judicial admissions which are
conclusive and binding on petitioners.97 This being the case, the Court
must forthwith order the dismissal of the petition for initiative for being,
on its face, insufficient in form and substance. The Court should make
the adjudication entailed by the facts here and now, without further
proceedings, as it has done in other cases.98
It is argued by petitioners that, assuming arguendo that the COMELEC
is correct in relying on Santiago that RA 6735 is inadequate to cover
initiative to the Constitution, this cannot be used to legitimize its refusal
to heed the people's will. The fact that there is no enabling law should
not prejudice the right of the sovereign people to propose amendments
to the Constitution, which right has already been exercised by
6,327,952 voters. The collective and resounding act of the particles of
sovereignty must not be set aside. Hence, the COMELEC should be
ordered to comply with Section 4, Article XVII of the 1987 Constitution
via a writ of mandamus. The submission of petitioners, however, is
unpersuasive.
Mandamus is a proper recourse for citizens who act to enforce a public
right and to compel the persons of a public duty most especially when
mandated by the Constitution.99 However, under Section 3, Rule 65 of
the 1997 Rules of Court, for a petition for mandamus to prosper, it
must be shown that the subject of the petition is a ministerial act or
duty and not purely discretionary on the part of the board, officer or
person, and that petitioner has a well-defined, clear and certain right to
warrant the grant thereof. A purely ministerial act or duty is one which
an officer or tribunal performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of a legal authority, without
regard to or the exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty upon a public
official and gives him the right to decide how or when the duty should
be performed, such duty is discretionary and not ministerial. The duty
is ministerial only when the discharge of the same requires neither the
exercise of an official discretion nor judgment.100
To stress, in a petition for mandamus, petitioner must show a well
defined, clear and certain right to warrant the grant thereof.101 In this
case, petitioners failed to establish their right to a writ of mandamus as
shown by the foregoing disquisitions.
Remand of the Case to the
COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300
The dissenting opinion posits that the issue of whether or not the
petition for initiative has complied with the requisite number of
signatures of at least twelve percent (12%) of the total number of
registered voters, of which every legislative district must be
represented by at least three percent (3%) of the registered voters
therein, involves contentious facts. The dissenting opinion cites the
petitioners' claim that they have complied with the same while the
oppositors-intervenors have vigorously refuted this claim by alleging,
inter alia, that the signatures were not properly verified or were not
verified at all. Other oppositors-intervenors have alleged that the
signatories did not fully understand what they have signed as they
were misled into signing the signature sheets.
According to the dissenting opinion, the sufficiency of the petition for
initiative and its compliance with the requirements of RA 6735 on
initiative and its implementing rules is a question that should be
resolved by the COMELEC at the first instance. It thus remands the
case to the COMELEC for further proceedings.
To my mind, the remand of the case to the COMELEC is not
warranted. There is nothing in RA 6735, as well as in COMELEC
Resolution No. 2300, granting that it is valid to implement the former
statute, that authorizes the COMELEC to conduct any kind of hearing,
whether full-blown or trial-type hearing, summary hearing or
administrative hearing, on a petition for initiative.
Section 41 of COMELEC Resolution No. 2300 provides that "[a]n
initiative shall be conducted under the control and supervision of the
Commission in accordance with Article III hereof." Pertinently, Sections
30, 31 and 32 of Article III of the said implementing rules provide as
follows:
Sec. 30. Verification of signatures. – The Election Registrar shall verify
the signatures on the basis of the registry list of voters, voters'
affidavits and voters' identification cards used in the immediately
preceding election.
Sec. 31. Determination by the Commission. – The Commission shall
act on the findings of the sufficiency or insufficiency of the petition for
initiative or referendum.

If it should appear that the required number of signatures has not been
obtained, the petition shall be deemed defeated and the Commission
shall issue a declaration to that effect.
If it should appear that the required number of signatures has been
obtained, the Commission shall set the initiative or referendum in
accordance with the succeeding sections.
Sec. 32. Appeal. – The decision of the Commission on the findings of
the sufficiency and insufficiency of the petition for initiative or
referendum may be appealed to the Supreme Court within thirty (30)
days from notice hereof.
Clearly, following the foregoing procedural rules, the COMELEC is not
authorized to conduct any kind of hearing to receive any evidence for
or against the sufficiency of the petition for initiative. Rather, the
foregoing rules require of the COMELEC to determine the sufficiency
or insufficiency of the petition for initiative on its face. And it has
already been shown, by the annexes submitted by the petitioners
themselves, their petition is, on its face, insufficient in form and
substance. The remand of the case to the COMELEC for reception of
evidence of the parties on the contentious factual issues is, in effect,
an amendment of the abovequoted rules of the COMELEC by this
Court which the Court is not empowered to do.
The Present Petition Presents a
Justiciable Controversy; Hence,
a Non-Political Question. Further,
the People, Acting in their Sovereign
Capacity, Have Bound Themselves
to Abide by the Constitution
Political questions refer to those questions which, under the
Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government.102 A
political question has two aspects: (1) those matters that are to be
exercised by the people in their primary political capacity; and (2)
matters which have been specifically designated to some other
department or particular office of the government, with discretionary
power to act.103
In his concurring and dissenting opinion in Arroyo v. De Venecia,104
Senior Associate Justice Reynato S. Puno explained the doctrine of
political question vis-à-vis the express mandate of the present
Constitution for the courts to determine whether or not there has been
a grave abuse of discretion on the part of any branch or instrumentality
of the Government:
In the Philippine setting, there is more compelling reason for courts to
categorically reject the political question defense when its interposition
will cover up abuse of power. For Section 1, Article VIII of our
Constitution was intentionally cobbled to empower courts "... to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." This power is new and was not
granted to our courts in the 1935 and 1972 Constitutions. It was also
not xeroxed from the US Constitution or any foreign state constitution.
The CONCOM [Constitutional Commission] granted this enormous
power to our courts in view of our experience under martial law where
abusive exercises of state power were shielded from judicial scrutiny
by the misuse of the political question doctrine. Led by the eminent
former Chief Justice Roberto Concepcion, the CONCOM expanded
and sharpened the checking powers of the judiciary vis-à-vis the
Executive and the Legislative departments of government. In cases
involving the proclamation of martial law and suspension of the
privilege of habeas corpus, it is now beyond dubiety that the
government can no longer invoke the political question defense.
xxxx
To a great degree, it diminished its [political question doctrine] use as a
shield to protect other abuses of government by allowing courts to
penetrate the shield with new power to review acts of any branch or
instrumentality of the government ". . . to determine whether or not
there has been grave abuse of discretion amounting to lack or excess
of jurisdiction."
Even if the present petition involves the act, not of a governmental
body, but of purportedly more than six million registered voters who
have signified their assent to the proposal to amend the Constitution,
the same still constitutes a justiciable controversy, hence, a non-
political question. There is no doubt that the Constitution, under Article
XVII, has explicitly provided for the manner or method to effect
amendments thereto, or revision thereof. The question, therefore, of
whether there has been compliance with the terms of the Constitution
is for the Court to pass upon.105
In the United States, in In re McConaughy,106 the State Supreme
Court of Minnesota exercised jurisdiction over the petition questioning
the result of the general election holding that "an examination of the
decisions shows that the courts have almost uniformly exercised the
240
authority to determine the validity of the proposal, submission, or
ratification of constitutional amendments." The cases cited were
Dayton v. St. Paul,107 Rice v. Palmer,108 Bott v. Wurtz,109 State v.
Powell,110 among other cases.
There is no denying that "the Philippines is a democratic and
republican State. Sovereignty resides in the people and all government
authority emanates from them."111 However, I find to be tenuous the
asseveration that "the argument that the people through initiative
cannot propose substantial amendments to change the Constitution
turns sovereignty in its head. At the very least, the submission
constricts the democratic space for the exercise of the direct
sovereignty of the people."112 In effect, it is theorized that despite the
unambiguous text of Section 2, Article XVII of the Constitution
withholding the power to revise it from the system of initiative, the
people, in their sovereign capacity, can conveniently disregard the said
provision.
I strongly take exception to the view that the people, in their sovereign
capacity, can disregard the Constitution altogether. Such a view
directly contravenes the fundamental constitutional theory that while
indeed "the ultimate sovereignty is in the people, from whom springs all
legitimate authority"; nonetheless, "by the Constitution which they
establish, they not only tie up the hands of their official agencies, but
their own hands as well; and neither the officers of the state, nor the
whole people as an aggregate body, are at liberty to take action in
opposition to this fundamental law."113 The Constitution, it should be
remembered, "is the protector of the people, placed on guard by them
to save the rights of the people against injury by the people."114 This
is the essence of constitutionalism:
Through constitutionalism we placed limits on both our political
institutions and ourselves, hoping that democracies, historically always
turbulent, chaotic and even despotic, might now become restrained,
principled, thoughtful and just. So we bound ourselves over to a law
that we made and promised to keep. And though a government of laws
did not displace governance by men, it did mean that now men,
democratic men, would try to live by their word.115
Section 2, Article XVII of the Constitution on the system of initiative is
limited only to proposals to amend to the Constitution, and does not
extend to its revision. The Filipino people have bound themselves to
observe the manner and method to effect the changes of the
Constitution. They opted to limit the exercise of the right to directly
propose amendments to the Constitution through initiative, but did not
extend the same to the revision thereof. The petition for initiative, as it
proposes to effect the revision thereof, contravenes the Constitution.
The fundamental law of the state prescribes the limitations under which
the electors of the state may change the same, and, unless such
course is pursued, the mere fact that a majority of the electors are in
favor of a change and have so expressed themselves, does not work a
change. Such a course would be revolutionary, and the Constitution of
the state would become a mere matter of form.116
The very term Constitution implies an instrument of a permanent and
abiding nature, and the provisions contained therein for its revision
indicated the will of the people that the underlying principles upon
which it rests, as well as the substantial entirety of the instrument, shall
be of a like permanent and abiding nature.117
The Filipino people have incorporated the safety valves of amendment
and revision in Article XVII of the Constitution. The Court is mandated
to ensure that these safety valves embodied in the Constitution to
guard against improvident and hasty changes thereof are not easily
trifled with. To be sure, by having overwhelmingly ratified the
Constitution, the Filipino people believed that it is "a good Constitution"
and in the words of the learned Judge Cooley:
x x x should be beyond the reach of temporary excitement and popular
caprice or passion. It is needed for stability and steadiness; it must
yield to the thought of the people; not to the whim of the people, or the
thought evolved in excitement or hot blood, but the sober second
thought, which alone, if the government is to be safe, can be allowed
efficiency. Changes in government are to be feared unless the benefit
is certain. As Montaign says: "All great mutations shake and disorder a
state. Good does not necessarily succeed evil; another evil may
succeed and worse.118
Indisputably, the issues posed in the present case are of
transcendental importance. Accordingly, I have approached and
grappled with them with full appreciation of the responsibilities involved
in the present case, and have given to its consideration the earnest
attention which its importance demands. I have sought to maintain the
supremacy of the Constitution at whatever hazard. I share the concern
of Chief Justice Day in Koehler v. Hill:119 "it is for the protection of
minorities that constitutions are framed. Sometimes constitutions must
be interposed for the protection of majorities even against themselves.
Constitutions are adopted in times of public repose, when sober reason
holds her citadel, and are designed to check the surging passions in
times of popular excitement. But if courts could be coerced by popular
majorities into a disregard of their provisions, constitutions would
become mere 'ropes of sand,' and there would be an end of social
security and of constitutional freedom. The cause of temperance can
sustain no injury from the loss of this amendment which would be at all
comparable to the injury to republican institutions which a violation of
the constitution would inflict. That large and respectable class of moral
reformers which so justly demands the observance and enforcement of
law, cannot afford to take its first reformatory step by a violation of the
constitution. How can it consistently demand of others obedience to a
constitution which it violates itself? The people can in a short time re-
enact the amendment. In the manner of a great moral reform, the loss
of a few years is nothing. The constitution is the palladium of
republican freedom. The young men coming forward upon the stage of
political action must be educated to venerate it; those already upon the
stage must be taught to obey it. Whatever interest may be advanced or
may suffer, whoever or whatever may be 'voted up or voted down,' no
sacrilegious hand must be laid upon the constitution."120
WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and
to GRANT the petition in G.R. No. 174299.
ROMEO J. CALLEJO, SR.
Associate Justice
____________________
EN BANC
G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON
ELECTIONS, ET AL.) and
G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs.
COMMISSION ON ELECTIONS, ET AL.).
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
AZCUNA, J.:
"Why, friends, you go to do you know not what."
-- Shakespeare, Julius Caesar, Act III, Sc. 2.
Article XVII of the Constitution states:
AMENDMENTS OR REVISIONS
Section 1. Any amendment to, or revision of, this Constitution may be
proposed by:
(1) The Congress, upon a vote of three-fourths of all its members; or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered votes therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of
this right.
Sec. 3. The Congress may, by a vote of two-thirds of all its Members,
call a constitutional convention, or by a majority vote of all its Members,
submit to the electorate the question of calling such a convention.
Sec. 4. Any amendment to, or revision of, this Constitution under
Section 1 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor
later than ninety days after the approval of such amendment or
revision.
Any amendment under Section 2 hereof shall be valid when ratified by
a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the certification
by the Commission on Elections of the sufficiency of the petition.
This Article states the procedure for changing the Constitution.
Constitutions have three parts – the Constitution of Liberty, which
states the fundamental rights of the people; the Constitution of
Government, which establishes the structure of government, its
branches and their operation; and the Constitution of Sovereignty,
which provides how the Constitution may be changed.
Article XVII is the Constitution of Sovereignty.
As a result, the powers therein provided are called constituent powers.
So when Congress acts under this provision, it acts not as a legislature
exercising legislative powers. It acts as a constituent body exercising
constituent powers.
241
The rules, therefore, governing the exercise of legislative powers do
not apply, or do not apply strictly, to the actions taken under Article
XVII.
Accordingly, since Article XVII states that Congress shall provide for
the implementation of the exercise of the people's right directly to
propose amendments to the Constitution through initiative, the act of
Congress pursuant thereto is not strictly a legislative action but
partakes of a constituent act.
As a result, Republic Act No. 6735, the act that provides for the
exercise of the people of the right to propose a law or amendments to
the Constitution is, with respect to the right to propose amendments to
the Constitution, a constituent measure, not a mere legislative one.
The consequence of this special character of the enactment, insofar as
it relates to proposing amendments to the Constitution, is that the
requirements for statutory enactments, such as sufficiency of
standards and the like, do not and should not strictly apply. As long as
there is a sufficient and clear intent to provide for the implementation of
the exercise of the right, it should be sustained, as it is simply a
compliance of the mandate placed on Congress by the Constitution.
Seen in this light, the provisions of Republic Act No. 6735 relating to
the procedure for proposing amendments to the Constitution, can and
should be upheld, despite shortcomings perhaps in legislative
headings and standards.
For this reason, I concur in the view that Santiago v. Comelec1 should
be re-examined and, after doing so, that the pronouncement therein
regarding the insufficiency or inadequacy of the measure to sustain a
people's initiative to amend the Constitution should be reconsidered in
favor of allowing the exercise of this sovereign right.
And applying the doctrine stated in Senarillos v. Hermosisima,2
penned by Justice J.B.L. Reyes, in relation to Article 8 of the Civil
Code, that a decision of this Court interpreting a law forms part of the
law interpreted as of the time of its enactment, Republic Act No. 6735
should be deemed sufficient and adequate from the start.
This next point to address, there being a sufficient law, is whether the
petition for initiative herein involved complies with the requirements of
that law as well as those stated in Article XVII of the Constitution.
True it is that ours is a democratic state, as explicitated in the
Declaration of Principles, to emphasize precisely that there are
instances recognized and provided for in the Constitution where our
people directly exercise their sovereign powers, new features set forth
in this People Power Charter, namely, the powers of recall, initiative
and referendum.
Nevertheless, this democratic nature of our polity is that of a
democracy under the rule of law. This equally important point is
emphasized in the very Preamble to the Constitution, which states:
". . . the blessings of . . . democracy under the rule of law . . . ."
Such is the case with respect to the power to initiate changes in the
Constitution. The power is subject to limitations under the Constitution
itself, thus: The power could not be exercised for the first five years
after the Constitution took effect and thereafter can only be exercised
once every five years; the power only extends to proposing
amendments but not revisions; and the power needs an act of
Congress providing for its implementation, which act is directed and
mandated.
The question, therefore, arises whether the proposed changes in the
Constitution set forth in the petition for initiative herein involved are
mere amendments or rather are revisions.
Revisions are changes that affect the entire Constitution and not mere
parts of it.
The reason why revisions are not allowed through direct proposals by
the people through initiative is a practical one, namely, there is no one
to draft such extensive changes, since 6.3 million people cannot
conceivably come up with a single extensive document through a direct
proposal from each of them. Someone would have to draft it and that is
not authorized as it would not be a direct proposal from the people.
Such indirect proposals can only take the form of proposals from
Congress as a Constituent Assembly under Article XVII, or a
Constitutional Convention created under the same provision.
Furthermore, there is a need for such deliberative bodies for revisions
because their proceedings and debates are duly and officially
recorded, so that future cases of interpretations can be properly aided
by resort to the record of their proceedings.
Even a cursory reading of the proposed changes contained in the
petition for initiative herein involved will show on its face that the
proposed changes constitute a revision of the Constitution. The
proposal is to change the system of government from that which is
bicameral-presidential to one that is unicameral-parliamentary.
While purportedly only Articles VI, VII, and XVIII are involved, the fact
is, as the petition and text of the proposed changes themselves state,
every provision of the Constitution will have to be examined to see if
they conform to the nature of a unicameral-parliamentary form of
government and changed accordingly if they do not so conform to it.
For example, Article VIII on Judicial Department cannot stand as is, in
a parliamentary system, for under such a system, the Parliament is
supreme, and thus the Court's power to declare its act a grave abuse
of discretion and thus void would be an anomaly.
Now, who is to do such examination and who is to do such changes
and how should the changes be worded? The proposed initiative does
not say who nor how.
Not only, therefore, is the proposed initiative, on this score, a prohibited
revision but it also suffers from being incomplete and insufficient on its
very face.
It, therefore, in that form, cannot pass muster the very limits contained
in providing for the power under the Constitution.
Neither does it comply with Republic Act No. 6735, which states in
Section 10 that not more than one subject shall be proposed as an
amendment or amendments to the Constitution. The petition herein
would propose at the very least two subjects – a unicameral legislature
and a parliamentary form of government. Again, for this clear and
patent violation of the very act that provides for the exercise of the
power, the proposed initiative cannot lie.
This does not mean, however, that all is lost for petitioners.
For the proposed changes can be separated and are, in my view,
separable in nature – a unicameral legislature is one; a parliamentary
form of government is another. The first is a mere amendment and
contains only one subject matter. The second is clearly a revision that
affects every article and every provision in the Constitution to an extent
not even the proponents could at present fully articulate. Petitioners
Lambino, et al. thus go about proposing changes the nature and extent
of which they do not as yet know exactly what.
The proposal, therefore, contained in the petition for initiative,
regarding a change in the legislature from a bicameral or two-chamber
body to that of a unicameral or one-chamber body, is sustainable. The
text of the changes needed to carry it out are perfunctory and
ministerial in nature. Once it is limited to this proposal, the changes are
simply one of deletion and insertions, the wordings of which are
practically automatic and non-discretionary.
As an example, I attach to this opinion an Appendix "A" showing how
the Constitution would read if we were to change Congress from one
consisting of the Senate and the House of Representatives to one
consisting only of the House of Representatives. It only affects Article
VI on the Legislative Department, some provisions on Article VII on the
Executive Department, as well as Article XI on the Accountability of
Public Officers, and Article XVIII on Transitory Provisions. These are
mere amendments, substantial ones indeed but still only amendments,
and they address only one subject matter.
Such proposal, moreover, complies with the intention and rationale
behind the present initiative, which is to provide for simplicity and
economy in government and reduce the stalemates that often prevent
needed legislation.
For the nonce, therefore, I vote to DISMISS the petition, without
prejudice to the filing of an appropriate initiative to propose
amendments to the Constitution to change Congress into a unicameral
body. This is not say that I favor such a change. Rather, such a
proposal would come within the purview of an initiative allowed under
Article XVII of the Constitution and its implementing Republic Act, and
should, therefore, be submitted to our people in a plebiscite for them to
decide in their sovereign capacity. After all is said and done, this is
what democracy under the rule of law is about.
ADOLFO S. AZCUNA
Associate Justice
____________________
EN BANC
G. R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with
6,327,952 REGISTERED VOTERS
vs.
THE COMMISSION ON ELECTIONS
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.
Q. SAGUISAG
vs.
242
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN
S. ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
SARMIENTO, and NICODEMO T. FERRER, and John Doe and Peter
Doe
x ---------------------------------------------------------------------------------------- x
"It is a Constitution we are expounding…"1
– Chief Justice John Marshall
DISSENTING OPINION
PUNO, J.:
The petition at bar is not a fight over molehills. At the crux of the
controversy is the critical understanding of the first and foremost of our
constitutional principles — "the Philippines is a democratic and
republican State. Sovereignty resides in the people and all government
authority emanates from them."2 Constitutionalism dictates that this
creed must be respected with deeds; our belief in its validity must be
backed by behavior.
This is a Petition for Certiorari and Mandamus to set aside the
resolution of respondent Commission on Elections (COMELEC) dated
August 31, 2006, denying due course to the Petition for Initiative filed
by petitioners Raul L. Lambino and Erico B. Aumentado in their own
behalf and together with some 6.3 million registered voters who have
affixed their signatures thereon, and praying for the issuance of a writ
of mandamus to compel respondent COMELEC to set the date of the
plebiscite for the ratification of the proposed amendments to the
Constitution in accordance with Section 2, Article XVII of the 1987
Constitution.
First, a flashback of the proceedings of yesteryears. In 1996, the
Movement for People's Initiative sought to exercise the sovereign
people's power to directly propose amendments to the Constitution
through initiative under Section 2, Article XVII of the 1987 Constitution.
Its founding member, Atty. Jesus S. Delfin, filed with the COMELEC on
December 6, 1996, a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, by People's Initiative" (Delfin Petition). It
proposed to amend Sections 4 and 7 of Article VI, Section 4 of Article
VII, and Section 8 of Article X of the 1987 Constitution by deleting the
provisions on the term limits for all elective officials.
The Delfin Petition stated that the Petition for Initiative would first be
submitted to the people and would be formally filed with the COMELEC
after it is signed by at least twelve per cent (12%) of the total number of
registered voters in the country. It thus sought the assistance of the
COMELEC in gathering the required signatures by fixing the dates and
time therefor and setting up signature stations on the assigned dates
and time. The petition prayed that the COMELEC issue an Order (1)
fixing the dates and time for signature gathering all over the country;
(2) causing the publication of said Order and the petition for initiative in
newspapers of general and local circulation; and, (3) instructing the
municipal election registrars in all the regions of the Philippines to
assist petitioner and the volunteers in establishing signing stations on
the dates and time designated for the purpose.
The COMELEC conducted a hearing on the Delfin Petition.
On December 18, 1996, Senator Miriam Defensor Santiago, Alexander
Padilla and Maria Isabel Ongpin filed a special civil action for
prohibition before this Court, seeking to restrain the COMELEC from
further considering the Delfin Petition. They impleaded as respondents
the COMELEC, Delfin, and Alberto and Carmen Pedrosa (Pedrosas) in
their capacities as founding members of the People's Initiative for
Reforms, Modernization and Action (PIRMA) which was likewise
engaged in signature gathering to support an initiative to amend the
Constitution. They argued that the constitutional provision on people's
initiative may only be implemented by a law passed by Congress; that
no such law has yet been enacted by Congress; that Republic Act No.
6735 relied upon by Delfin does not cover the initiative to amend the
Constitution; and that COMELEC Resolution No. 2300, the
implementing rules adopted by the COMELEC on the conduct of
initiative, was ultra vires insofar as the initiative to amend the
Constitution was concerned. The case was docketed as G.R. No.
127325, entitled Santiago v. Commission on Elections.3
Pending resolution of the case, the Court issued a temporary
restraining order enjoining the COMELEC from proceeding with the
Delfin Petition and the Pedrosas from conducting a signature drive for
people's initiative to amend the Constitution.
On March 19, 1997, the Court rendered its decision on the petition for
prohibition. The Court ruled that the constitutional provision granting
the people the power to directly amend the Constitution through
initiative is not self-executory. An enabling law is necessary to
implement the exercise of the people's right. Examining the provisions
of R.A. 6735, a majority of eight (8) members of the Court held that
said law was "incomplete, inadequate, or wanting in essential terms
and conditions insofar as initiative on amendments to the Constitution
is concerned,"4 and thus voided portions of COMELEC Resolution No.
2300 prescribing rules and regulations on the conduct of initiative on
amendments to the Constitution. It was also held that even if R.A. 6735
sufficiently covered the initiative to amend the Constitution and
COMELEC Resolution No. 2300 was valid, the Delfin Petition should
still be dismissed as it was not the proper initiatory pleading
contemplated by law. Under Section 2, Article VII of the 1987
Constitution and Section 5(b) of R.A. 6735, a petition for initiative on
the Constitution must be signed by at least twelve per cent (12%) of
the total number of registered voters, of which every legislative district
is represented by at least three per cent (3%) of the registered voters
therein. The Delfin Petition did not contain signatures of the required
number of voters. The decision stated:
CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation
of the system.
We feel, however, that the system of initiative to propose amendments
to the Constitution should no longer be kept in the cold; it should be
given flesh and blood, energy and strength. Congress should not tarry
any longer in complying with the constitutional mandate to provide for
the implementation of the right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of
initiative on amendments to the Constitution, and to have failed to
provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the
Commission on Elections prescribing rules and regulations on the
conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the
DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is
made permanent against the Commission on Elections, but is LIFTED
as against private respondents.5
Eight (8) members of the Court, namely, then Associate Justice Hilario
G. Davide, Jr. (ponente), Chief Justice Andres R. Narvasa, and
Associate Justices Florenz D. Regalado, Flerida Ruth P. Romero,
Josue N. Bellosillo, Santiago M. Kapunan, Regino C. Hermosisima, Jr.
and Justo P. Torres, fully concurred in the majority opinion.
While all the members of the Court who participated in the
deliberation6 agreed that the Delfin Petition should be dismissed for
lack of the required signatures, five (5) members, namely, Associate
Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza,
Ricardo J. Francisco and Artemio V. Panganiban, held that R.A. 6735
was sufficient and adequate to implement the people's right to amend
the Constitution through initiative, and that COMELEC Resolution No.
2300 validly provided the details for the actual exercise of such right.
Justice Jose C. Vitug, on the other hand, opined that the Court should
confine itself to resolving the issue of whether the Delfin Petition
sufficiently complied with the requirements of the law on initiative, and
there was no need to rule on the adequacy of R.A. 6735.
The COMELEC, Delfin and the Pedrosas filed separate motions for
reconsideration of the Court's decision.
After deliberating on the motions for reconsideration, six (6)7 of the
eight (8) majority members maintained their position that R.A. 6735
was inadequate to implement the provision on the initiative on
amendments to the Constitution. Justice Torres filed an inhibition, while
Justice Hermosisima submitted a Separate Opinion adopting the
position of the minority that R.A. 6735 sufficiently covers the initiative to
amend the Constitution. Hence, of the thirteen (13) members of the
Court who participated in the deliberation, six (6) members, namely,
Chief Justice Narvasa and Associate Justices Regalado, Davide,
Romero, Bellosillo and Kapunan voted to deny the motions for lack of
merit; and six (6) members, namely, Associate Justices Melo, Puno,
Mendoza, Francisco, Hermosisima and Panganiban voted to grant the
same. Justice Vitug maintained his opinion that the matter was not ripe
for judicial adjudication. The motions for reconsideration were therefore
denied for lack of sufficient votes to modify or reverse the decision of
March 19, 1997.8
On June 23, 1997, PIRMA filed with the COMELEC a Petition for
Initiative to Propose Amendments to the Constitution (PIRMA Petition).
The PIRMA Petition was supported by around five (5) million
signatures in compliance with R.A. 6735 and COMELEC Resolution
No. 2300, and prayed that the COMELEC, among others: (1) cause the
publication of the petition in Filipino and English at least twice in
newspapers of general and local circulation; (2) order all election
243
officers to verify the signatures collected in support of the petition and
submit these to the Commission; and (3) set the holding of a plebiscite
where the following proposition would be submitted to the people for
ratification:
Do you approve amendments to the 1987 Constitution giving the
President the chance to be reelected for another term, similarly with
the Vice-President, so that both the highest officials of the land can
serve for two consecutive terms of six years each, and also to lift the
term limits for all other elective government officials, thus giving Filipino
voters the freedom of choice, amending for that purpose, Section 4 of
Article VII, Sections 4 and 7 of Article VI and Section 8 of Article X,
respectively?
The COMELEC dismissed the PIRMA Petition in view of the
permanent restraining order issued by the Court in Santiago v.
COMELEC.
PIRMA filed with this Court a Petition for Mandamus and Certiorari
seeking to set aside the COMELEC Resolution dismissing its petition
for initiative. PIRMA argued that the Court's decision on the Delfin
Petition did not bar the COMELEC from acting on the PIRMA Petition
as said ruling was not definitive based on the deadlocked voting on the
motions for reconsideration, and because there was no identity of
parties and subject matter between the two petitions. PIRMA also
urged the Court to reexamine its ruling in Santiago v. COMELEC.
The Court dismissed the petition for mandamus and certiorari in its
resolution dated September 23, 1997. It explained:
The Court ruled, first, by a unanimous vote, that no grave abuse of
discretion could be attributed to the public respondent COMELEC in
dismissing the petition filed by PIRMA therein, it appearing that it only
complied with the dispositions in the Decision of this Court in G.R. No.
127325 promulgated on March 19, 1997, and its Resolution of June 10,
1997.
The Court next considered the question of whether there was need to
resolve the second issue posed by the petitioners, namely, that the
Court re-examine its ruling as regards R.A. 6735. On this issue, the
Chief Justice and six (6) other members of the Court, namely,
Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted
that there was no need to take it up. Vitug, J., agreed that there was no
need for re-examination of said second issue since the case at bar is
not the proper vehicle for that purpose. Five (5) other members of the
Court, namely, Melo, Puno, Francisco, Hermosisima, and Panganiban,
JJ., opined that there was a need for such a re-examination x x x x9
In their Separate Opinions, Justice (later Chief Justice) Davide and
Justice Bellosillo stated that the PIRMA petition was dismissed on the
ground of res judicata.
Now, almost a decade later, another group, Sigaw ng Bayan, seeks to
utilize anew the system of initiative to amend the Constitution, this time
to change the form of government from bicameral-presidential to
unicameral-parliamentary system.
Let us look at the facts of the petition at bar with clear eyes.
On February 15, 2006, Sigaw ng Bayan, in coordination with Union of
Local Authorities of the Philippines (ULAP), embarked on a nationwide
drive to gather signatures to support the move to adopt the
parliamentary form of government in the country through charter
change. They proposed to amend the Constitution as follows:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read
as follows:
Section 1. (1) The legislative and executive powers shall be vested in a
unicameral Parliament which shall be composed of as many members
as may be provided by law, to be apportioned among the provinces,
representative districts, and cities in accordance with the number of
their respective inhabitants, with at least three hundred thousand
inhabitants per district, and on the basis of a uniform and progressive
ratio. Each district shall comprise, as far as practicable, contiguous,
compact and adjacent territory, and each province must have at least
one member.
(2) Each Member of Parliament shall be a natural-born citizen of the
Philippines, at least twenty-five years old on the day of the election, a
resident of his district for at least one year prior thereto, and shall be
elected by the qualified voters of his district for a term of five years
without limitation as to the number thereof, except those under the
party-list system which shall be provided for by law and whose number
shall be equal to twenty per centum of the total membership coming
from the parliamentary districts.
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are
hereby amended to read, as follows:
Section 1. There shall be a President who shall be the Head of State.
The executive power shall be exercised by a Prime Minister, with the
assistance of the Cabinet. The Prime Minister shall be elected by a
majority of all the Members of Parliament from among themselves. He
shall be responsible to the Parliament for the program of government.
C. For the purpose of insuring an orderly transition from the bicameral-
Presidential to a unicameral-Parliamentary form of government, there
shall be a new Article XVIII, entitled "Transitory Provisions," which shall
read, as follows:
Section 1. (1) The incumbent President and Vice President shall serve
until the expiration of their term at noon on the thirtieth day of June
2010 and shall continue to exercise their powers under the 1987
Constitution unless impeached by a vote of two thirds of all the
members of the interim parliament.
(2) In case of death, permanent disability, resignation or removal from
office of the incumbent President, the incumbent Vice President shall
succeed as President. In case of death, permanent disability,
resignation or removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all the powers
and responsibilities of Prime Minister under Article VII as amended.
Section 2. Upon the expiration of the term of the incumbent President
and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7
of Article VI of the 1987 Constitution which shall hereby be amended
and Sections 18 and 24 which shall be deleted, all other Sections of
Article VI are hereby retained and renumbered sequentially as Section
2, ad seriatim up to 26, unless they are inconsistent with the
Parliamentary system of government, in which case, they shall be
amended to conform with a unicameral parliamentary form of
government; provided, however, that any and all references therein to
"Congress," "Senate," "House of Representatives" and "Houses of
Congress" shall be changed to read "Parliament;" that any and all
references therein to "Member(s) of Congress," "Senator(s)" or
"Member(s) of the House of Representatives" shall be changed to read
as "Member(s) of Parliament" and any and all references to the
"President" and/or "Acting President" shall be changed to read "Prime
Minister."
Section 3. Upon the expiration of the term of the incumbent President
and Vice President, with the exception of Sections 1, 2, 3 and 4 of
Article VII of the 1987 Constitution which are hereby amended and
Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other
Sections of Article VII shall be retained and renumbered sequentially
as Section 2, ad seriatim up to 14, unless they shall be inconsistent
with Section 1 hereof, in which case they shall be deemed amended so
as to conform to a unicameral Parliamentary System of government;
provided, however, that any all references therein to "Congress,"
"Senate," "House of Representatives" and "Houses of Congress" shall
be changed to read "Parliament;" that any and all references therein to
"Member(s) of Congress," "Senator(s)" or "Member(s) of the House of
Representatives" shall be changed to read as "Member(s) of
Parliament" and any and all references to the "President" and or
"Acting President" shall be changed to read "Prime Minister."
Section 4. (1) There shall exist, upon the ratification of these
amendments, an interim Parliament which shall continue until the
Members of the regular Parliament shall have been elected and shall
have qualified. It shall be composed of the incumbent Members of the
Senate and the House of Representatives and the incumbent Members
of the Cabinet who are heads of executive departments.
(2) The incumbent Vice President shall automatically be a Member of
Parliament until noon of the thirtieth day of June 2010. He shall also be
a member of the cabinet and shall head a ministry. He shall initially
convene the interim Parliament and shall preside over its sessions for
the election of the interim Prime Minister and until the Speaker shall
have been elected by a majority vote of all the members of the interim
Parliament from among themselves.
(3) Senators whose term of office ends in 2010 shall be Members of
Parliament until noon of the thirtieth day of June 2010.
(4) Within forty-five days from ratification of these amendments, the
interim Parliament shall convene to propose amendments to, or
revisions of, this Constitution consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief Executive,
shall nominate, from among the members of the interim Parliament, an
interim Prime Minister, who shall be elected by a majority vote of the
members thereof. The interim Prime Minister shall oversee the various
ministries and shall perform such powers and responsibilities as may
be delegated to him by the incumbent President."
(2) The interim Parliament shall provide for the election of the members
of Parliament, which shall be synchronized and held simultaneously
with the election of all local government officials. The duly elected
Prime Minister shall continue to exercise and perform the powers,
duties and responsibilities of the interim Prime Minister until the
expiration of the term of the incumbent President and Vice
President.10
244
Sigaw ng Bayan prepared signature sheets, on the upper portions of
which were written the abstract of the proposed amendments, to wit:
Abstract: Do you approve of the amendment of Articles VI and VII of
the 1987 Constitution, changing the form of government from the
present bicameral-presidential to a unicameral-parliamentary system of
government, in order to achieve greater efficiency, simplicity and
economy in government; and providing an Article XVIII as Transitory
Provisions for the orderly shift from one system to another?
The signature sheets were distributed nationwide to affiliated non-
government organizations and volunteers of Sigaw ng Bayan, as well
as to the local officials. Copies of the draft petition for initiative
containing the proposition were also circulated to the local officials and
multi-sectoral groups.
Sigaw ng Bayan alleged that it also held barangay assemblies which
culminated on March 24, 25 and 26, 2006, to inform the people and
explain to them the proposed amendments to the Constitution.
Thereafter, they circulated the signature sheets for signing.
The signature sheets were then submitted to the local election officers
for verification based on the voters' registration record. Upon
completion of the verification process, the respective local election
officers issued certifications to attest that the signature sheets have
been verified. The verified signature sheets were subsequently
transmitted to the office of Sigaw ng Bayan for the counting of the
signatures.
On August 25, 2006, herein petitioners Raul L. Lambino and Erico B.
Aumentado filed with the COMELEC a Petition for Initiative to Amend
the Constitution entitled "In the Matter of Proposing Amendments to the
1987 Constitution through a People's Initiative: A Shift from a
Bicameral Presidential to a Unicameral Parliamentary Government by
Amending Articles VI and VII; and Providing Transitory Provisions for
the Orderly Shift from the Presidential to the Parliamentary System."
They filed an Amended Petition on August 30, 2006 to reflect the text
of the proposed amendment that was actually presented to the people.
They alleged that they were filing the petition in their own behalf and
together with some 6.3 million registered voters who have affixed their
signatures on the signature sheets attached thereto. Petitioners
appended to the petition signature sheets bearing the signatures of
registered voters which they claimed to have been verified by the
respective city or municipal election officers, and allegedly constituting
at least twelve per cent (12%) of all registered voters in the country,
wherein each legislative district is represented by at least three per
cent (3%) of all the registered voters therein.
As basis for the filing of their petition for initiative, petitioners averred
that Section 5 (b) and (c), together with Section 7 of R.A. 6735, provide
sufficient enabling details for the people's exercise of the power.
Hence, petitioners prayed that the COMELEC issue an Order:
1. Finding the petition to be sufficient pursuant to Section 4, Article XVII
of the 1987 Constitution;
2. Directing the publication of the petition in Filipino and English at
least twice in newspapers of general and local circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later than
ninety days after the Certification by the COMELEC of the sufficiency
of the petition, to allow the Filipino people to express their sovereign
will on the proposition.
Several groups filed with the COMELEC their respective oppositions to
the petition for initiative, among them ONEVOICE, Inc., Christian S.
Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa,
Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups,
Inc., Senate Minority Leader Aquilino Q. Pimentel, Jr., Senators Sergio
Osmeña III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson,
Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives
Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia
Hontiveros-Baraquel; Bayan, Kilusang Mayo Uno, Ecumenical Bishops
Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan,
League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs.
Darby Santiago and Reginald Pamugas; Attys. Pete Quirino-Quadra,
Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat,
Antonio L. Salvador, and Randall C. Tabayoyong.
On August 31, 2006, the COMELEC denied due course to the Petition
for Initiative. It cited this Court's ruling in Santiago v. COMELEC11
permanently enjoining the Commission from entertaining or taking
cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to
provide for the implementation of the system.
Forthwith, petitioners filed with this Court the instant Petition for
Certiorari and Mandamus praying that the Court set aside the August
31, 2006 resolution of the COMELEC, direct respondent COMELEC to
comply with Section 4, Article XVII of the Constitution, and set the date
of the plebiscite. They state the following grounds in support of the
petition:

I.
The Honorable public respondent COMELEC committed grave abuse
of discretion in refusing to take cognizance of, and to give due course
to the petition for initiative, because the cited Santiago ruling of 19
March 1997 cannot be considered the majority opinion of the Supreme
Court en banc, considering that upon its reconsideration and final
voting on 10 June 1997, no majority vote was secured to declare
Republic Act No. 6735 as inadequate, incomplete and insufficient in
standard.
II.
The 1987 Constitution, Republic Act No. 6735, Republic Act No. 8189
and existing appropriation of the COMELEC provide for sufficient
details and authority for the exercise of people's initiative, thus, existing
laws taken together are adequate and complete.
III.
The Honorable public respondent COMELEC committed grave abuse
of discretion in refusing to take cognizance of, and in refusing to give
due course to the petition for initiative, thereby violating an express
constitutional mandate and disregarding and contravening the will of
the people.
A.
Assuming in arguendo that there is no enabling law, respondent
COMELEC cannot ignore the will of the sovereign people and must
accordingly act on the petition for initiative.
1.
The framers of the Constitution intended to give the people the power
to propose amendments and the people themselves are now giving
vibrant life to this constitutional provision.
2.
Prior to the questioned Santiago ruling of 19 March 1997, the right of
the people to exercise the sovereign power of initiative and recall has
been invariably upheld.
3.
The exercise of the initiative to propose amendments is a political
question which shall be determined solely by the sovereign people.
4.
By signing the signature sheets attached to the petition for initiative
duly verified by the election officers, the people have chosen to
perform this sacred exercise of their sovereign power.
B.
The Santiago ruling of 19 March 1997 is not applicable to the instant
petition for initiative filed by the petitioners.
C.
The permanent injunction issued in Santiago vs. COMELEC only
applies to the Delfin petition.
1.
It is the dispositive portion of the decision and not other statements in
the body of the decision that governs the rights in controversy.
IV.
The Honorable public respondent failed or neglected to act or perform
a duty mandated by law.
A.
The ministerial duty of the COMELEC is to set the initiative for
plebiscite.12
The oppositors-intervenors, ONEVOICE, Inc., Christian S. Monsod,
Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan
V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.;
Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante
Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino
Students, Leonardo San Jose, Jojo Pineda, Dr. Darby Santiago, and
Dr. Reginald Pamugas; Senate Minority Leader Aquilino Q. Pimentel,
Jr., and Senators Sergio Osmeña III, Jamby A.S. Madrigal, Alfredo S.
Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy
Estrada; Representatives Loretta Ann P. Rosales, Mario Joyo Aguja,
and Ana Theresia Hontiveros-Baraquel; and Attys. Pete Quirino-
Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A.
245
Lat, Antonio L. Salvador, and Randall C. Tabayoyong moved to
intervene in this case and filed their respective Oppositions/Comments-
in-Intervention.
The Philippine Constitution Association, Conrado F. Estrella, Tomas C.
Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin T. Venus, Jr.,
Fortunato P. Aguas, and Amado Gat Inciong; the Integrated Bar of the
Philippines Cebu City and Cebu Province Chapters; former President
Joseph Ejercito Estrada and Pwersa ng Masang Pilipino; and the
Senate of the Philippines, represented by Senate President Manuel
Villar, Jr., also filed their respective motions for intervention and
Comments-in-Intervention.
The Trade Union Congress of the Philippines, Sulongbayan Movement
Foundation, Inc., Ronald L. Adamat, Rolando Manuel Rivera, Ruelo
Baya, Philippine Transport and General Workers Organization, and
Victorino F. Balais likewise moved to intervene and submitted to the
Court a Petition-in-Intervention. All interventions and oppositions were
granted by the Court.
The oppositors-intervenors essentially submit that the COMELEC did
not commit grave abuse of discretion in denying due course to the
petition for initiative as it merely followed this Court's ruling in Santiago
v. COMELEC as affirmed in the case of PIRMA v. COMELEC, based
on the principle of stare decisis; that there is no sufficient law providing
for the authority and the details for the exercise of people's initiative to
amend the Constitution; that the proposed changes to the Constitution
are actually revisions, not mere amendments; that the petition for
initiative does not meet the required number of signatories under
Section 2, Article XVII of the 1987 Constitution; that it was not shown
that the people have been informed of the proposed amendments as
there was disparity between the proposal presented to them and the
proposed amendments attached to the petition for initiative, if indeed
there was; that the verification process was done ex parte, thus
rendering dubious the signatures attached to the petition for initiative;
and that petitioners Lambino and Aumentado have no legal capacity to
represent the signatories in the petition for initiative.
The Office of the Solicitor General (OSG), in compliance with the
Court's resolution of September 5, 2006, filed its Comment to the
petition. Affirming the position of the petitioners, the OSG prayed that
the Court grant the petition at bar and render judgment: (1) declaring
R.A. 6735 as adequate to cover or as reasonably sufficient to
implement the system of initiative on amendments to the Constitution
and as having provided sufficient standards for subordinate legislation;
(2) declaring as valid the provisions of COMELEC Resolution No. 2300
on the conduct of initiative or amendments to the Constitution; (3)
setting aside the assailed resolution of the COMELEC for having been
rendered with grave abuse of discretion amounting to lack or excess of
jurisdiction; and, (4) directing the COMELEC to grant the petition for
initiative and set the corresponding plebiscite pursuant to R.A. 6735,
COMELEC Resolution No. 2300, and other pertinent election laws and
regulations.
The COMELEC filed its own Comment stating that its resolution
denying the petition for initiative is not tainted with grave abuse of
discretion as it merely adhered to the ruling of this Court in Santiago v.
COMELEC which declared that R.A. 6735 does not adequately
implement the constitutional provision on initiative to amend the
Constitution. It invoked the permanent injunction issued by the Court
against the COMELEC from taking cognizance of petitions for initiative
on amendments to the Constitution until a valid enabling law shall have
been passed by Congress. It asserted that the permanent injunction
covers not only the Delfin Petition, but also all other petitions involving
constitutional initiatives.
On September 26, 2006, the Court heard the case. The parties were
required to argue on the following issues:13
1. Whether petitioners Lambino and Aumentado are proper parties to
file the present Petition in behalf of the more than six million voters who
allegedly signed the proposal to amend the Constitution.
2. Whether the Petitions for Initiative filed before the Commission on
Elections complied with Section 2, Article XVII of the Constitution.
3. Whether the Court's decision in Santiago v. COMELEC (G.R. No.
127325, March 19, 1997) bars the present petition.
4. Whether the Court should re-examine the ruling in Santiago v.
COMELEC that there is no sufficient law implementing or authorizing
the exercise of people's initiative to amend the Constitution.
5. Assuming R.A. 6735 is sufficient, whether the Petitions for Initiative
filed with the COMELEC have complied with its provisions.
5.1 Whether the said petitions are sufficient in form and substance.
5.2 Whether the proposed changes embrace more than one subject
matter.
6. Whether the proposed changes constitute an amendment or revision
of the Constitution.

6.1 Whether the proposed changes are the proper subject of an
initiative.
7. Whether the exercise of an initiative to propose amendments to the
Constitution is a political question to be determined solely by the
sovereign people.
8. Whether the Commission on Elections committed grave abuse of
discretion in dismissing the Petitions for Initiative filed before it.
With humility, I offer the following views to these issues as profiled:
I stare decisis is not one of the precepts set in stone in our Constitution.
Petitioners Lambino and Aumentado are proper parties to file the
present Petition in behalf of the more than six million voters who
allegedly signed the proposal to amend the Constitution.
Oppositors-intervenors contend that petitioners Lambino and
Aumentado are not the proper parties to file the instant petition as they
were not authorized by the signatories in the petition for initiative.
The argument deserves scant attention. The Constitution requires that
the petition for initiative should be filed by at least twelve per cent
(12%) of all registered voters, of which every legislative district must be
represented by at least three per cent (3%) of all the registered voters
therein. The petition for initiative filed by Lambino and Aumentado
before the COMELEC was accompanied by voluminous signature
sheets which prima facie show the intent of the signatories to support
the filing of said petition. Stated above their signatures in the signature
sheets is the following:
x x x My signature herein which shall form part of the petition for
initiative to amend the Constitution signifies my support for the filing
thereof.14
There is thus no need for the more than six (6) million signatories to
execute separate documents to authorize petitioners to file the petition
for initiative in their behalf.
Neither is it necessary for said signatories to authorize Lambino and
Aumentado to file the petition for certiorari and mandamus before this
Court. Rule 65 of the 1997 Rules of Civil Procedure provides who may
file a petition for certiorari and mandamus. Sections 1 and 3 of Rule 65
read:
SECTION 1. Petition for certiorari.—When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in
excess of his jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, and there is no appeal, nor any plain,
speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court x x x x.
SEC. 3. Petition for mandamus.—When any tribunal, corporation,
board, officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office,
trust, or station x x x and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court x x x x.
Thus, any person aggrieved by the act or inaction of the respondent
tribunal, board or officer may file a petition for certiorari or mandamus
before the appropriate court. Certainly, Lambino and Aumentado, as
among the proponents of the petition for initiative dismissed by the
COMELEC, have the standing to file the petition at bar.
II
The doctrine of stare decisis does not bar the reexamination of
Santiago.
The latin phrase stare decisis et non quieta movere means "stand by
the thing and do not disturb the calm." The doctrine started with the
English Courts.15 Blackstone observed that at the beginning of the
18th century, "it is an established rule to abide by former precedents
where the same points come again in litigation."16 As the rule evolved,
early limits to its application were recognized: (1) it would not be
followed if it were "plainly unreasonable;" (2) where courts of equal
authority developed conflicting decisions; and, (3) the binding force of
the decision was the "actual principle or principles necessary for the
decision; not the words or reasoning used to reach the decision."17
The doctrine migrated to the United States. It was recognized by the
framers of the U.S. Constitution.18 According to Hamilton, "strict rules
and precedents" are necessary to prevent "arbitrary discretion in the
courts."19 Madison agreed but stressed that "x x x once the precedent
ventures into the realm of altering or repealing the law, it should be
rejected."20 Prof. Consovoy well noted that Hamilton and Madison
"disagree about the countervailing policy considerations that would
allow a judge to abandon a precedent."21 He added that their ideas
"reveal a deep internal conflict between the concreteness required by
the rule of law and the flexibility demanded in error correction. It is this
246
internal conflict that the Supreme Court has attempted to deal with for
over two centuries."22
Indeed, two centuries of American case law will confirm Prof.
Consovoy's observation although stare decisis developed its own life in
the United States. Two strains of stare decisis have been isolated by
legal scholars.23 The first, known as vertical stare decisis deals with
the duty of lower courts to apply the decisions of the higher courts to
cases involving the same facts. The second, known as horizontal stare
decisis requires that high courts must follow its own precedents. Prof.
Consovoy correctly observes that vertical stare decisis has been
viewed as an obligation, while horizontal stare decisis, has been
viewed as a policy, imposing choice but not a command.24 Indeed,
It is also instructive to distinguish the two kinds of horizontal stare
decisis — constitutional stare decisis and statutory stare decisis.25
Constitutional stare decisis involves judicial interpretations of the
Constitution while statutory stare decisis involves interpretations of
statutes. The distinction is important for courts enjoy more flexibility in
refusing to apply stare decisis in constitutional litigations. Justice
Brandeis' view on the binding effect of the doctrine in constitutional
litigations still holds sway today. In soothing prose, Brandeis stated:
"Stare decisis is not . . . a universal and inexorable command. The rule
of stare decisis is not inflexible. Whether it shall be followed or
departed from, is a question entirely within the discretion of the court,
which is again called upon to consider a question once decided."26 In
the same vein, the venerable Justice Frankfurter opined: "the ultimate
touchstone of constitutionality is the Constitution itself and not what we
have said about it."27 In contrast, the application of stare decisis on
judicial interpretation of statutes is more inflexible. As Justice Stevens
explains: "after a statute has been construed, either by this Court or by
a consistent course of decision by other federal judges and agencies, it
acquires a meaning that should be as clear as if the judicial gloss had
been drafted by the Congress itself."28 This stance reflects both
respect for Congress' role and the need to preserve the courts' limited
resources.
In general, courts follow the stare decisis rule for an ensemble of
reasons,29 viz: (1) it legitimizes judicial institutions; (2) it promotes
judicial economy; and, (3) it allows for predictability. Contrariwise,
courts refuse to be bound by the stare decisis rule where30 (1) its
application perpetuates illegitimate and unconstitutional holdings; (2) it
cannot accommodate changing social and political understandings; (3)
it leaves the power to overturn bad constitutional law solely in the
hands of Congress; and, (4) activist judges can dictate the policy for
future courts while judges that respect stare decisis are stuck agreeing
with them.
In its 200-year history, the U.S. Supreme Court has refused to follow
the stare decisis rule and reversed its decisions in 192 cases.31 The
most famous of these reversals is Brown v. Board of Education32
which junked Plessy v. Ferguson's33 "separate but equal doctrine."
Plessy upheld as constitutional a state law requirement that races be
segregated on public transportation. In Brown, the U.S. Supreme
Court, unanimously held that "separate . . . is inherently unequal."
Thus, by freeing itself from the shackles of stare decisis, the U.S.
Supreme Court freed the colored Americans from the chains of
inequality. In the Philippine setting, this Court has likewise refused to
be straitjacketed by the stare decisis rule in order to promote public
welfare. In La Bugal-B'laan Tribal Association, Inc. v. Ramos,34 we
reversed our original ruling that certain provisions of the Mining Law
are unconstitutional. Similarly, in Secretary of Justice v. Lantion,35 we
overturned our first ruling and held, on motion for reconsideration, that
a private respondent is bereft of the right to notice and hearing during
the evaluation stage of the extradition process.
An examination of decisions on stare decisis in major countries will
show that courts are agreed on the factors that should be considered
before overturning prior rulings. These are workability, reliance,
intervening developments in the law and changes in fact. In addition,
courts put in the balance the following determinants: closeness of the
voting, age of the prior decision and its merits.36
The leading case in deciding whether a court should follow the stare
decisis rule in constitutional litigations is Planned Parenthood v.
Casey.37 It established a 4-pronged test. The court should (1)
determine whether the rule has proved to be intolerable simply in
defying practical workability; (2) consider whether the rule is subject to
a kind of reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of repudiation;
(3) determine whether related principles of law have so far developed
as to have the old rule no more than a remnant of an abandoned
doctrine; and, (4) find out whether facts have so changed or come to
be seen differently, as to have robbed the old rule of significant
application or justification.
Following these guidelines, I submit that the stare decisis rule should
not bar the reexamination of Santiago. On the factor of intolerability,
the six (6) justices in Santiago held R.A. 6735 to be insufficient as it
provided no standard to guide COMELEC in issuing its implementing
rules. The Santiago ruling that R.A. 6735 is insufficient but without
striking it down as unconstitutional is an intolerable aberration, the only
one of its kind in our planet. It improperly assails the ability of
legislators to write laws. It usurps the exclusive right of legislators to
determine how far laws implementing constitutional mandates should
be crafted. It is elementary that courts cannot dictate on Congress the
style of writing good laws, anymore than Congress can tell courts how
to write literate decisions. The doctrine of separation of powers forbids
this Court to invade the exclusive lawmaking domain of Congress for
courts can construe laws but cannot construct them. The end result of
the ruling of the six (6) justices that R.A. 6735 is insufficient is
intolerable for it rendered lifeless the sovereign right of the people to
amend the Constitution via an initiative.
On the factor of reliance, the ruling of the six (6) justices in Santiago
did not induce any expectation from the people. On the contrary, the
ruling smothered the hope of the people that they could amend the
Constitution by direct action. Moreover, reliance is a non-factor in the
case at bar for it is more appropriate to consider in decisions involving
contracts where private rights are adjudicated. The case at bar
involves no private rights but the sovereignty of the people.
On the factor of changes in law and in facts, certain realities on ground
cannot be blinked away. The urgent need to adjust certain provisions
of the 1987 Constitution to enable the country to compete in the new
millennium is given. The only point of contention is the mode to effect
the change - - - whether through constituent assembly, constitutional
convention or people's initiative. Petitioners claim that they have
gathered over six (6) million registered voters who want to amend the
Constitution through people's initiative and that their signatures have
been verified by registrars of the COMELEC. The six (6) justices who
ruled that R.A. 6735 is insufficient to implement the direct right of the
people to amend the Constitution through an initiative cannot waylay
the will of 6.3 million people who are the bearers of our sovereignty
and from whom all government authority emanates. New
developments in our internal and external social, economic, and
political settings demand the reexamination of the Santiago case. The
stare decisis rule is no reason for this Court to allow the people to step
into the future with a blindfold.
III
A reexamination of R.A. 6735 will show that it is sufficient to implement
the people's initiative.
Let us reexamine the validity of the view of the six (6) justices that R.A.
6735 is insufficient to implement Section 2, Article XVII of the 1987
Constitution allowing amendments to the Constitution to be directly
proposed by the people through initiative.
When laws are challenged as unconstitutional, courts are counseled to
give life to the intent of legislators. In enacting R.A. 6735, it is daylight
luminous that Congress intended the said law to implement the right of
the people, thru initiative, to propose amendments to the Constitution
by direct action. This all-important intent is palpable from the following:
First. The text of R.A. 6735 is replete with references to the right of the
people to initiate changes to the Constitution:
The policy statement declares:
Sec. 2. Statement of Policy. -- The power of the people under a system
of initiative and referendum to directly propose, enact, approve or
reject, in whole or in part, the Constitution, laws, ordinances, or
resolutions passed by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized and
guaranteed. (emphasis supplied)
It defines "initiative" as "the power of the people to propose
amendments to the Constitution or to propose and enact legislations
through an election called for the purpose," and "plebiscite" as "the
electoral process by which an initiative on the Constitution is approved
or rejected by the people."
It provides the requirements for a petition for initiative to amend the
Constitution, viz:
(1) That "(a) petition for an initiative on the 1987 Constitution must
have at least twelve per centum (12%) of the total number of registered
voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters
therein;"38 and
(2) That "(i)nitiative on the Constitution may be exercised only after five
(5) years from the ratification of the 1987 Constitution and only once
every five (5) years thereafter."39
It fixes the effectivity date of the amendment under Section 9(b) which
provides that "(t)he proposition in an initiative on the Constitution
approved by a majority of the votes cast in the plebiscite shall become
effective as to the day of the plebiscite."
Second. The legislative history of R.A. 6735 also reveals the clear
intent of the lawmakers to use it as the instrument to implement
247
people's initiative. No less than former Chief Justice Hilario G. Davide,
Jr., the ponente in Santiago, concedes:40
We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is
a consolidation of House Bill No. 21505 and Senate Bill No. 17 x x x x
The Bicameral Conference Committee consolidated Senate Bill No. 17
and House Bill No. 21505 into a draft bill, which was subsequently
approved on 8 June 1989 by the Senate and by the House of
Representatives. This approved bill is now R.A. No. 6735.
Third. The sponsorship speeches by the authors of R.A. 6735 similarly
demonstrate beyond doubt this intent. In his sponsorship remarks, the
late Senator Raul Roco (then a Member of the House of
Representatives) emphasized the intent to make initiative as a mode
whereby the people can propose amendments to the Constitution. We
quote his relevant remarks:41
SPONSORSHIP REMAKRS OF REP. ROCO
MR. ROCO. Mr. Speaker, with the permission of the committee, we
wish to speak in support of House Bill No. 497, entitled: INITIATIVE
AND REFERENDUM ACT OF 1987, which later on may be called
Initiative and Referendum Act of 1989.
As a background, we want to point out the constitutional basis of this
particular bill. The grant of plenary legislative power upon the
Philippine Congress by the 1935, 1973 and 1987 Constitutions, Mr.
Speaker, was based on the principle that any power deemed to be
legislative by usage and tradition is necessarily possessed by the
Philippine Congress unless the Organic Act has lodged it elsewhere.
This was a citation from Vera vs. Avelino (1946).
The presidential system introduced by the 1935 Constitution saw the
application of the principle of separation of powers. While under the
parliamentary system of the 1973 Constitution the principle remained
applicable, Amendment 6 or the 1981 amendments to the 1973
Constitution ensured presidential dominance over the Batasang
Pambansa.
Our constitutional history saw the shifting and sharing of legislative
power between the legislature and the executive.
Transcending such changes in the exercise of legislative power is the
declaration in the Philippine Constitution that he Philippines is a
Republican State where sovereignty resides in the people and all
government authority emanates from them.
In a Republic, Mr. Speaker, the power to govern is vested in its citizens
participating through the right of suffrage and indicating thereby their
choice of lawmakers.
Under the 1987 Constitution, lawmaking power is still preserved in
Congress. However, to institutionalize direct action of the people as
exemplified in the 1986 Revolution, there is a practical recognition of
what we refer to as people's sovereign power. This is the recognition of
a system of initiative and referendum.
Section 1, Article VI of the 1987 Constitution provides, and I quote:
The legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and House of Representatives, except
to the extent reserved to the people by the provision on initiative and
referendum.
In other words, Mr. Speaker, under the 1987 Constitution, Congress
does not have plenary powers. There is a reserved legislative power
given to the people expressly.
Section 32, the implementing provision of the same article of the
Constitution provides, and I quote:
The Congress shall, as early as possible, provide for a system of
initiative and referendum, and the exceptions therefrom, whereby the
people can directly propose and enact laws or approve or reject any
act or law or part thereof passed by the Congress or local legislative
body after the registration of a petition therefor signed by at least ten
per centum of the total number of registered voters, or which every
legislative district must be represented by at least three per centum of
the registered voters thereof.
In other words, Mr. Speaker, in Section 1 of Article VI which describes
legislative power, there are reserved powers given to the people. In
Section 32, we are specifically told to pass at the soonest possible time
a bill on referendum and initiative. We are specifically mandated to
share the legislative powers of Congress with the people.
Of course, another applicable provision in the Constitution is Section 2,
Article XVII, Mr. Speaker. Under the provision on amending the
Constitution, the section reads, and I quote:
Amendments to this Constitution may likewise be directly proposed by
the people through initiative upon a petition of at least twelve per
centum of the total number of registered voters, of which every
legislative district must be represented by at least three per centum of
the registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
We in Congress therefore, Mr. Speaker, are charged with the duty to
implement the exercise by the people of the right of initiative and
referendum.
House Bill No. 21505, as reported out by the Committee on Suffrage
and Electoral Reforms last December 14, 1988, Mr. Speaker, is the
response to such a constitutional duty.
Mr. Speaker, if only to allay apprehensions, allow me to show where
initiative and referendum under Philippine law has occurred.
Mr. Speaker, the system of initiative and referendum is not new. In a
very limited extent, the system is provided for in our Local Government
Code today. On initiative, for instance, Section 99 of the said code
vests in the barangay assembly the power to initiate legislative
processes, to hold plebiscites and to hear reports of the sangguniang
barangay. There are variations of initiative and referendum. The
barangay assembly is composed of all persons who have been actual
residents of the barangay for at least six months, who are at least 15
years of age and citizens of the Philippines. The holding of barangay
plebiscites and referendum is also provided in Sections 100 and 101 of
the same Code.
Mr. Speaker, for brevity I will not read the pertinent quotations but will
just submit the same to the Secretary to be incorporated as part of my
speech.
To continue, Mr. Speaker these same principles are extensively
applied by the Local Government Code as it is now mandated by the
1987 Constitution.
In other jurisdictions, Mr. Speaker, we have ample examples of
initiative and referendum similar to what is now contained in House Bill
No. 21505. As in the 1987 Constitutions and House Bill No. 21505, the
various constitutions of the states in the United States recognize the
right of registered voters to initiate the enactment of any statute or to
reject any existing law or parts thereof in a referendum. These states
are Alaska, Alabama, Montana, Massachusetts, Dakota, Oklahoma,
Oregon, and practically all other states.
In certain American states, the kind of laws to which initiative and
referendum applies is also without ay limitation, except for emergency
measures, which is likewise incorporated in Section 7(b) of House Bill
No. 21505.
The procedure provided by the House bill – from the filing of the
petition, the requirement of a certain percentage of supporters to
present a proposition to submission to electors – is substantially similar
to those of many American laws. Mr. Speaker, those among us who
may have been in the United States, particularly in California, during
election time or last November during the election would have noticed
different propositions posted in the city walls. They were propositions
submitted by the people for incorporation during the voting. These
were in the nature of initiative, Mr. Speaker.
Although an infant then in Philippine political structure, initiative and
referendum is a tried and tested system in other jurisdictions, and
House Bill No. 21505 through the various consolidated bills is
patterned after American experience in a great respect.
What does the bill essentially say, Mr. Speaker? Allow me to try to
bring our colleagues slowly through the bill. The bill has basically only
12 sections. The constitutional Commissioners, Mr. Speaker, saw this
system of initiative and referendum as an instrument which can be
used should the legislature show itself indifferent to the needs of the
people. That is why, Mr. Speaker, it may be timely, since we seem to
be amply criticized, as regards our responsiveness, to pass this bill on
referendum and initiative now. While indifference would not be an
appropriate term to use at this time, and surely it is not the case
although we are so criticized, one must note that it is a felt necessity of
our times that laws need to be proposed and adopted at the soonest
possible time to spur economic development, safeguard individual
rights and liberties, and share governmental power with the people.
With the legislative powers of the President gone, we alone, together
with the Senators when they are minded to agree with us, are left with
the burden of enacting the needed legislation.
Let me now bring our colleagues, Mr. Speaker, to the process
advocated by the bill.
First, initiative and referendum, Mr. Speaker, is defined. Initiative
essentially is what the term connotes. It means that the people, on their
own political judgment, submit fore the consideration and voting of the
general electorate a bill or a piece of legislation.
248
Under House Bill No. 21505, there are three kinds of initiative. One is
an initiative to amend the Constitution. This can occur once every five
years. Another is an initiative to amend statutes that we may have
approved. Had this bill been an existing law, Mr. Speaker, it is most
likely that an overwhelming majority of the barangays in the Philippines
would have approved by initiative the matter of direct voting.
The third mode of initiative, Mr. Speaker, refers to a petition proposing
to enact regional, provincial, city, municipal or barangay laws or
ordinances. It comes from the people and it must be submitted directly
to the electorate. The bill gives a definite procedure and allows the
COMELEC to define rules and regulations to give teeth to the power of
initiative.
On the other hand, referendum, Mr. Speaker, is the power of the
people to approve or reject something that Congress has already
approved.
For instance, Mr. Speaker, when we divide the municipalities or the
barangays into two or three, we must first get the consent of the people
affected through plebiscite or referendum.
Referendum is a mode of plebiscite, Mr. Speaker. However,
referendum can also be petitioned by the people if, for instance, they
do not life the bill on direct elections and it is approved subsequently by
the Senate. If this bill had already become a law, then the people could
petition that a referendum be conducted so that the acts of Congress
can be appropriately approved or rebuffed.
The initial stage, Mr. Speaker, is what we call the petition. As
envisioned in the bill, the initiative comes from the people, from
registered voters of the country, by presenting a proposition so that the
people can then submit a petition, which is a piece of paper that
contains the proposition. The proposition in the example I have been
citing is whether there should be direct elections during the barangay
elections. So the petition must be filed in the appropriate agency and
the proposition must be clear stated. It can be tedious but that is how
an effort to have direct democracy operates.
Section 4 of the bill gives requirements, Mr. Speaker. It will not be all
that easy to have referendum or initiative petitioned by the people.
Under Section 4 of the committee report, we are given certain
limitations. For instance, to exercise the power of initiative or
referendum, at least 10 percent of the total number of registered
voters, of which every legislative district is represented by at least 3
percent of the registered voters thereof, shall sign a petition. These
numbers, Mr. Speaker, are not taken from the air. They are mandated
by the Constitution. There must be a requirement of 10 percent for
ordinary laws and 3 percent representing all districts. The same
requirement is mutatis mutandis or appropriately modified and applied
to the different sections. So if it is, for instance, a petition on initiative or
referendum for a barangay, there is a 10 percent or a certain number
required of the voters of the barangay. If it is for a district, there is also
a certain number required of all towns of the district that must seek the
petition. If it is for a province then again a certain percentage of the
provincial electors is required. All these are based with reference to the
constitutional mandate.
The conduct of the initiative and referendum shall be supervised and
shall be upon the call of the Commission on Elections. However, within
a period of 30 days from receipt of the petition, the COMELEC shall
determine the sufficiency of the petition, publish the same and set the
date of the referendum which shall not be earlier than 45 days but not
later than 90 days from the determination by the commission of the
sufficiency of the petition. Why is this so, Mr. Speaker? The petition
must first be determined by the commission as to its sufficiency
because our Constitution requires that no bill can be approved unless it
contains one subject matter. It is conceivable that in the fervor of an
initiative or referendum, Mr. Speaker, there may be more than two
topics sought to be approved and that cannot be allowed. In fact, that
is one of the prohibitions under this referendum and initiative bill. When
a matter under initiative or referendum is approved by the required
number of votes, Mr. Speaker, it shall become effective 15 days
following the completion of its publication in the Official Gazette.
Effectively then, Mr. Speaker, all the bill seeks to do is to enlarge and
recognize the legislative powers of the Filipino people.
Mr. Speaker, I think this Congress, particularly this House, cannot
ignore or cannot be insensitive to the call for initiative and referendum.
We should have done it in 1987 but that is past. Maybe we should
have done it in 1988 but that too had already passed, but it is only
February 1989, Mr. Speaker, and we have enough time this year at
least to respond to the need of our people to participate directly in the
work of legislation.
For these reasons, Mr. Speaker, we urge and implore our colleagues
to approve House Bill No. 21505 as incorporated in Committee Report
No. 423 of the Committee on Suffrage and Electoral Reforms.
In closing, Mr. Speaker, I also request that the prepared text of my
speech, together with the footnotes since they contain many
references to statutory history and foreign jurisdiction, be reproduced
as part of the Record for future purposes.

Equally unequivocal on the intent of R.A. 6735 is the sponsorship
speech of former Representative Salvador Escudero III, viz:42
SPONSORSHIP REMARKS OF REP. ESCUDERO
MR. ESCUDERO. Thank you, Mr. Speaker.
Mr. Speaker and my dear colleagues: Events in recent years
highlighted the need to heed the clamor of the people for a truly
popular democracy. One recalls the impatience of those who actively
participated in the parliament of the streets, some of whom are now
distinguished Members of this Chamber. A substantial segment of the
population feel increasingly that under the system, the people have the
form but not the reality or substance of democracy because of the
increasingly elitist approach of their chosen Representatives to many
questions vitally affecting their lives. There have been complaints, not
altogether unfounded, that many candidates easily forge their
campaign promises to the people once elected to office. The 1986
Constitutional Commission deemed it wise and proper to provide for a
means whereby the people can exercise the reserve power to legislate
or propose amendments to the Constitution directly in case their chose
Representatives fail to live up to their expectations. That reserve power
known as initiative is explicitly recognized in three articles and four
sections of the 1987 Constitution, namely: Article VI Section 1; the
same article, Section 312; Article X, Section 3; and Article XVII,
Section 2. May I request that he explicit provisions of these three
articles and four sections be made part of my sponsorship speech, Mr.
Speaker.
These constitutional provisions are, however, not self-executory. There
is a need for an implementing law that will give meaning and substance
to the process of initiative and referendum which are considered
valuable adjuncts to representative democracy. It is needless to state
that this bill when enacted into law will probably open the door to
strong competition of the people, like pressure groups, vested
interests, farmers' group, labor groups, urban dwellers, the urban poor
and the like, with Congress in the field of legislation.
Such probability, however, pales in significance when we consider that
through this bill we can hasten the politization of the Filipino which in
turn will aid government in forming an enlightened public opinion, and
hopefully produce better and more responsive and acceptable
legislations.
Furthermore, Mr. Speaker, this would give the parliamentarians of the
streets and cause-oriented groups an opportunity to articulate their
ideas in a truly democratic forum, thus, the competition which they will
offer to Congress will hopefully be a healthy one. Anyway, in an
atmosphere of competition there are common interests dear to all
Filipinos, and the pursuit of each side's competitive goals can still take
place in an atmosphere of reason and moderation.
Mr. Speaker and my dear colleagues, when the distinguished
Gentleman from Camarines Sur and this Representation filed our
respective versions of the bill in 1987, we were hoping that the bill
would be approved early enough so that our people could immediately
use the agrarian reform bill as an initial subject matter or as a take-off
point.
However, in view of the very heavy agenda of the Committee on Local
Government, it took sometime before the committee could act on
these. But as they say in Tagalog, huli man daw at magaling ay
naihahabol din. The passage of this bill therefore, my dear colleagues,
could be one of our finest hours when we can set aside our personal
and political consideration for the greater good of our people. I
therefore respectfully urge and plead that this bill be immediately
approved.
Thank you, Mr. Speaker.
We cannot dodge the duty to give effect to this intent for the "[c]ourts
have the duty to interpret the law as legislated and when possible, to
honor the clear meaning of statutes as revealed by its language,
purpose and history."43
The tragedy is that while conceding this intent, the six (6) justices,
nevertheless, ruled that "x x x R.A. No. 6735 is incomplete, inadequate,
or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned" for the following
reasons: (1) Section 2 of the Act does not suggest an initiative on
amendments to the Constitution; (2) the Act does not provide for the
contents of the petition for initiative on the Constitution; and (3) while
the Act provides subtitles for National Initiative and Referendum
(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no
subtitle is provided for initiative on the Constitution.
To say the least, these alleged omissions are too weak a reason to
throttle the right of the sovereign people to amend the Constitution
through initiative. R.A. 6735 clearly expressed the legislative policy for
the people to propose amendments to the Constitution by direct action.
The fact that the legislature may have omitted certain details in
implementing the people's initiative in R.A. 6735, does not justify the
249
conclusion that, ergo, the law is insufficient. What were omitted were
mere details and not fundamental policies which Congress alone can
and has determined. Implementing details of a law can be delegated to
the COMELEC and can be the subject of its rule-making power. Under
Section 2(1), Article IX-C of the Constitution, the COMELEC has the
power to enforce and administer all laws and regulations relative to the
conduct of initiatives. Its rule-making power has long been recognized
by this Court. In ruling R.A. 6735 insufficient but without striking it down
as unconstitutional, the six (6) justices failed to give due recognition to
the indefeasible right of the sovereign people to amend the
Constitution.
IV
The proposed constitutional changes, albeit substantial, are mere
amendments and can be undertaken through people's initiative.
Oppositors-intervenors contend that Sections 1 and 2, Article XVII of
the 1987 Constitution, only allow the use of people's initiative to amend
and not to revise the Constitution. They theorize that the changes
proposed by petitioners are substantial and thus constitute a revision
which cannot be done through people's initiative.
In support of the thesis that the Constitution bars the people from
proposing substantial amendments amounting to revision, the
oppositors-intervenors cite the following deliberations during the
Constitutional Commission, viz:44
MR. SUAREZ: x x x x This proposal was suggested on the theory that
this matter of initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional modes
of amending the Constitution as embodied in Section 1. The
Committee members felt that this system of initiative should not extend
to the revision of the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on Amendment or
Revision.
xxxxxxxxxxxx
MS. AQUINO. In which case, I am seriously bothered by providing this
process of initiative as a separate section in the Article on Amendment.
Would the sponsor be amenable to accepting an amendment in terms
of realigning Section 2 as another subparagraph (c) of Section 1,
instead of setting it up as another separate section as if it were a self-
executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a
while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which contemplates
a total overhaul of the Constitution. That was the sense that was
conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to include
the process of revision; whereas the process of initiation to amend,
which is given to the public, would only apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the
Committee.
Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused the
same view:45
MR. DAVIDE. x x x x We are limiting the right of the people, by
initiative, to submit a proposal for amendment only, not for revision,
only once every five years x x x x
MR. MAAMBONG. My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendment." Does it cover the word
"revision" as defined by Commissioner Padilla when he made the
distinction between the words "amendments" and "revision?"
MR. DAVIDE. No, it does not, because "amendments" and "revision"
should be covered by Section 1. So insofar as initiative is concerned, it
can only relate to "amendments" not "revision."
Commissioner (now a distinguished Associate Justice of this Court)
Adolfo S. Azcuna also clarified this point46 -
MR. OPLE. To more closely reflect the intent of Section 2, may I
suggest that we add to "Amendments" "OR REVISIONS OF" to read:
"Amendments OR REVISION OF this Constitution."
MR. AZCUNA. I think it was not allowed to revise the Constitution by
initiative.
MR. OPLE. How is that again?
MR. AZCUNA. It was not our intention to allow a revision of the
Constitution by initiative but merely by amendments.
MR. BENGZON. Only by amendments.
MR. AZCUNA. I remember that was taken on the floor.
MR. RODRIGO. Yes, just amendments.
The oppositors-intervenors then point out that by their proposals,
petitioners will "change the very system of government from
presidential to parliamentary, and the form of the legislature from
bicameral to unicameral," among others. They allegedly seek other
major revisions like the inclusion of a minimum number of inhabitants
per district, a change in the period for a term of a Member of
Parliament, the removal of the limits on the number of terms, the
election of a Prime Minister who shall exercise the executive power,
and so on and so forth.47 In sum, oppositors-intervenors submit that
"the proposed changes to the Constitution effect major changes in the
political structure and system, the fundamental powers and duties of
the branches of the government, the political rights of the people, and
the modes by which political rights may be exercised."48 They
conclude that they are substantial amendments which cannot be done
through people's initiative. In other words, they posit the thesis that
only simple but not substantial amendments can be done through
people's initiative.
With due respect, I disagree. To start with, the words "simple" and
"substantial" are not subject to any accurate quantitative or qualitative
test. Obviously, relying on the quantitative test, oppositors-intervenors
assert that the amendments will result in some one hundred (100)
changes in the Constitution. Using the same test, however, it is also
arguable that petitioners seek to change basically only two (2) out of
the eighteen (18) articles of the 1987 Constitution, i.e. Article VI
(Legislative Department) and Article VII (Executive Department),
together with the complementary provisions for a smooth transition
from a presidential bicameral system to a parliamentary unicameral
structure. The big bulk of the 1987 Constitution will not be affected
including Articles I (National Territory), II (Declaration of Principles and
State Policies), III (Bill of Rights), IV (Citizenship), V (Suffrage), VIII
(Judicial Department), IX (Constitutional Commissions), X (Local
Government), XI (Accountability of Public Officers), XII (National
Economy and Patrimony), XIII (Social Justice and Human Rights), XIV
(Education, Science and Technology, Arts, Culture, and Sports), XV
(The Family), XVI (General Provisions), and even XVII (Amendments
or Revisions). In fine, we stand on unsafe ground if we use simple
arithmetic to determine whether the proposed changes are "simple" or
"substantial."
Nor can this Court be surefooted if it applies the qualitative test to
determine whether the said changes are "simple" or "substantial" as to
amount to a revision of the Constitution. The well-regarded political
scientist, Garner, says that a good constitution should contain at least
three (3) sets of provisions: the constitution of liberty which sets forth
the fundamental rights of the people and imposes certain limitations on
the powers of the government as a means of securing the enjoyment of
these rights; the constitution of government which deals with the
framework of government and its powers, laying down certain rules for
its administration and defining the electorate; and, the constitution of
sovereignty which prescribes the mode or procedure for amending or
revising the constitution.49 It is plain that the proposed changes will
basically affect only the constitution of government. The constitutions
of liberty and sovereignty remain unaffected. Indeed, the proposed
changes will not change the fundamental nature of our state as "x x x a
democratic and republican state."50 It is self-evident that a unicameral-
parliamentary form of government will not make our State any less
democratic or any less republican in character. Hence, neither will the
use of the qualitative test resolve the issue of whether the proposed
changes are "simple" or "substantial."
For this reason and more, our Constitutions did not adopt any
quantitative or qualitative test to determine whether an "amendment" is
"simple" or "substantial." Nor did they provide that "substantial"
amendments are beyond the power of the people to propose to change
the Constitution. Instead, our Constitutions carried the traditional
distinction between "amendment" and "revision," i.e., "amendment"
means change, including complex changes while "revision" means
complete change, including the adoption of an entirely new covenant.
The legal dictionaries express this traditional difference between
"amendment" and "revision." Black's Law Dictionary defines
"amendment" as "[a] formal revision or addition proposed or made to a
statute, constitution, pleading, order, or other instrument; specifically, a
change made by addition, deletion, or correction."51 Black's also refers
to "amendment" as "the process of making such a revision."52
Revision, on the other hand, is defined as "[a] reexamination or careful
review for correction or improvement."53 In parliamentary law, it is
described as "[a] general and thorough rewriting of a governing
document, in which the entire document is open to amendment."54
Similarly, Ballentine's Law Dictionary defines "amendment" – as "[a]
correction or revision of a writing to correct errors or better to state its
intended purpose"55 and "amendment of constitution" as "[a] process
of proposing, passing, and ratifying amendments to the x x x
constitution."56 In contrast, "revision," when applied to a statute (or
constitution), "contemplates the re-examination of the same subject
matter contained in the statute (or constitution), and the substitution of
a new, and what is believed to be, a still more perfect rule."57
250
One of the most authoritative constitutionalists of his time to whom we
owe a lot of intellectual debt, Dean Vicente G. Sinco, of the University
of the Philippines College of Law, (later President of the U.P. and
delegate to the Constitutional Convention of 1971) similarly spelled out
the difference between "amendment" and "revision." He opined: "the
revision of a constitution, in its strict sense, refers to a consideration of
the entire constitution and the procedure for effecting such change;
while amendment refers only to particular provisions to be added to or
to be altered in a constitution."58
Our people were guided by this traditional distinction when they
effected changes in our 1935 and 1973 Constitutions. In 1940, the
changes to the 1935 Constitution which included the conversion from a
unicameral system to a bicameral structure, the shortening of the
tenure of the President and Vice-President from a six-year term without
reelection to a four-year term with one reelection, and the
establishment of the COMELEC, together with the complementary
constitutional provisions to effect the changes, were considered
amendments only, not a revision.
The replacement of the 1935 Constitution by the 1973 Constitution
was, however, considered a revision since the 1973 Constitution was
"a completely new fundamental charter embodying new political, social
and economic concepts."59 Among those adopted under the 1973
Constitution were: the parliamentary system in place of the presidential
system, with the leadership in legislation and administration vested
with the Prime Minister and his Cabinet; the reversion to a single-
chambered lawmaking body instead of the two-chambered, which
would be more suitable to a parliamentary system of government; the
enfranchisement of the youth beginning eighteen (18) years of age
instead of twenty-one (21), and the abolition of literacy, property, and
other substantial requirements to widen the basis for the electorate and
expand democracy; the strengthening of the judiciary, the civil service
system, and the Commission on Elections; the complete nationalization
of the ownership and management of mass media; the giving of control
to Philippine citizens of all telecommunications; the prohibition against
alien individuals to own educational institutions, and the strengthening
of the government as a whole to improve the conditions of the
masses.60
The 1973 Constitution in turn underwent a series of significant changes
in 1976, 1980, 1981, and 1984. The two significant innovations
introduced in 1976 were (1) the creation of an interim Batasang
Pambansa, in place of the interim National Assembly, and (2)
Amendment No. 6 which conferred on the President the power to issue
decrees, orders, or letters of instruction, whenever the Batasang
Pambansa fails to act adequately on any matter for any reason that in
his judgment requires immediate action, or there is grave emergency
or threat or imminence thereof, with such decrees, or letters of
instruction to form part of the law of the land. In 1980, the retirement
age of seventy (70) for justices and judges was restored. In 1981, the
presidential system with parliamentary features was installed. The
transfer of private land for use as residence to natural-born citizens
who had lost their citizenship was also allowed. Then, in 1984, the
membership of the Batasang Pambansa was reapportioned by
provinces, cities, or districts in Metro Manila instead of by regions; the
Office of the Vice-President was created while the executive committee
was abolished; and, urban land reform and social housing programs
were strengthened.61 These substantial changes were simply
considered as mere amendments.
In 1986, Mrs. Corazon C. Aquino assumed the presidency, and
repudiated the 1973 Constitution. She governed under Proclamation
No. 3, known as the Freedom Constitution.
In February 1987, the new constitution was ratified by the people in a
plebiscite and superseded the Provisional or Freedom Constitution.
Retired Justice Isagani Cruz underscored the outstanding features of
the 1987 Constitution which consists of eighteen articles and is
excessively long compared to the Constitutions of 1935 and 1973, on
which it was largely based. Many of the original provisions of the 1935
Constitution, particularly those pertaining to the legislative and
executive departments, have been restored because of the revival of
the bicameral Congress of the Philippines and the strictly presidential
system. The independence of the judiciary has been strengthened,
with new provisions for appointment thereto and an increase in its
authority, which now covers even political questions formerly beyond
its jurisdiction. While many provisions of the 1973 Constitution were
retained, like those on the Constitutional Commissions and local
governments, still the new 1987 Constitution was deemed as a revision
of the 1973 Constitution.
It is now contended that this traditional distinction between amendment
and revision was abrogated by the 1987 Constitution. It is urged that
Section 1 of Article XVII gives the power to amend or revise to
Congress acting as a constituent assembly, and to a Constitutional
Convention duly called by Congress for the purpose. Section 2 of the
same Article, it is said, limited the people's right to change the
Constitution via initiative through simple amendments. In other words,
the people cannot propose substantial amendments amounting to
revision.
With due respect, I do not agree. As aforestated, the oppositors-
intervenors who peddle the above proposition rely on the opinions of
some Commissioners expressed in the course of the debate on how to
frame the amendment/revision provisions of the 1987 Constitution. It is
familiar learning, however, that opinions in a constitutional convention,
especially if inconclusive of an issue, are of very limited value as
explaining doubtful phrases, and are an unsafe guide (to the intent of
the people) since the constitution derives its force as a fundamental
law, not from the action of the convention but from the powers (of the
people) who have ratified and adopted it.62 "Debates in the
constitutional convention 'are of value as showing the views of the
individual members, and as indicating the reasons for their votes, but
they give us no light as to the views of the large majority who did not
talk, much less of the mass of our fellow citizens whose votes at the
polls gave that instrument the force of fundamental law.'"63 Indeed, a
careful perusal of the debates of the Constitutional Commissioners can
likewise lead to the conclusion that there was no abandonment of the
traditional distinction between "amendment" and "revision." For during
the debates, some of the commissioners referred to the concurring
opinion of former Justice Felix Q. Antonio in Javellana v. The Executive
Secretary,64 that stressed the traditional distinction between
amendment and revision, thus:65
MR. SUAREZ: We mentioned the possible use of only one term and
that is, "amendment." However, the Committee finally agreed to use
the terms – "amendment" or "revision" when our attention was called
by the honorable Vice-President to the substantial difference in the
connotation and significance between the said terms. As a result of our
research, we came up with the observations made in the famous – or
notorious – Javellana doctrine, particularly the decision rendered by
Honorable Justice Makasiar,66 wherein he made the following
distinction between "amendment" and "revision" of an existing
Constitution: "Revision" may involve a rewriting of the whole
Constitution. On the other hand, the act of amending a constitution
envisages a change of specific provisions only. The intention of an act
to amend is not the change of the entire Constitution, but only the
improvement of specific parts or the addition of provisions deemed
essential as a consequence of new conditions or the elimination of
parts already considered obsolete or unresponsive to the needs of the
times.
The 1973 Constitution is not a mere amendment to the 1935
Constitution. It is a completely new fundamental Charter embodying
new political, social and economic concepts.
So, the Committee finally came up with the proposal that these two
terms should be employed in the formulation of the Article governing
amendments or revisions to the new Constitution.
To further explain "revision," former Justice Antonio, in his concurring
opinion, used an analogy – "When a house is completely demolished
and another is erected on the same location, do you have a changed,
repaired and altered house, or do you have a new house? Some of the
material contained in the old house may be used again, some of the
rooms may be constructed the same, but this does not alter the fact
that you have altogether another or a new house."67
Hence, it is arguable that when the framers of the 1987 Constitution
used the word "revision," they had in mind the "rewriting of the whole
Constitution," or the "total overhaul of the Constitution." Anything less
is an "amendment" or just "a change of specific provisions only," the
intention being "not the change of the entire Constitution, but only the
improvement of specific parts or the addition of provisions deemed
essential as a consequence of new conditions or the elimination of
parts already considered obsolete or unresponsive to the needs of the
times." Under this view, "substantial" amendments are still
"amendments" and thus can be proposed by the people via an
initiative.
As we cannot be guided with certainty by the inconclusive opinions of
the Commissioners on the difference between "simple" and
"substantial" amendments or whether "substantial" amendments
amounting to revision are covered by people's initiative, it behooves us
to follow the cardinal rule in interpreting Constitutions, i.e., construe
them to give effect to the intention of the people who adopted it. The
illustrious Cooley explains its rationale well, viz:68
x x x the constitution does not derive its force from the convention
which framed, but from the people who ratified it, the intent to be
arrived at is that of the people, and it is not to be supposed that they
have looked for any dark or abstruse meaning in the words employed,
but rather that they have accepted them in the sense most obvious to
the common understanding, and ratified the instrument in the belief
that that was the sense designed to be conveyed. These proceedings
therefore are less conclusive of the proper construction of the
instrument than are legislative proceedings of the proper construction
of a statute; since in the latter case it is the intent of the legislature we
seek, while in the former we are endeavoring to arrive at the intent of
the people through the discussion and deliberations of their
representatives. The history of the calling of the convention, the causes
which led to it, and the discussions and issues before the people at the
time of the election of the delegates, will sometimes be quite as
251
instructive and satisfactory as anything to be gathered form the
proceedings of the convention.
Corollarily, a constitution is not to be interpreted on narrow or technical
principles, but liberally and on broad general lines, to accomplish the
object of its establishment and carry out the great principles of
government – not to defeat them.69 One of these great principles is
the sovereignty of the people.
Let us now determine the intent of the people when they adopted
initiative as a mode to amend the 1987 Constitution. We start with the
Declaration of Principles and State Policies which Sinco describes as
"the basic political creed of the nation"70 as it "lays down the policies
that government is bound to observe."71 Section 1, Article II of the
1935 Constitution and Section 1, Article II of the 1973 Constitution,
similarly provide that "the Philippines is a republican state. Sovereignty
resides in the people and all government authority emanates from
them." In a republican state, the power of the sovereign people is
exercised and delegated to their representatives. Thus in Metropolitan
Transportation Service v. Paredes, this Court held that "a republican
state, like the Philippines x x x (is) derived from the will of the people
themselves in freely creating a government 'of the people, by the
people, and for the people' – a representative government through
which they have agreed to exercise the powers and discharge the
duties of their sovereignty for the common good and general
welfare."72
In both the 1935 and 1973 Constitutions, the sovereign people
delegated to Congress or to a convention, the power to amend or
revise our fundamental law. History informs us how this delegated
power to amend or revise the Constitution was abused particularly
during the Marcos regime. The Constitution was changed several times
to satisfy the power requirements of the regime. Indeed, Amendment
No. 6 was passed giving unprecedented legislative powers to then
President Ferdinand E. Marcos. A conspiracy of circumstances from
above and below, however, brought down the Marcos regime through
an extra constitutional revolution, albeit a peaceful one by the people.
A main reason for the people's revolution was the failure of the
representatives of the people to effectuate timely changes in the
Constitution either by acting as a constituent assembly or by calling a
constitutional convention. When the representatives of the people
defaulted in using this last peaceful process of constitutional change,
the sovereign people themselves took matters in their own hands.
They revolted and replaced the 1973 Constitution with the 1987
Constitution.
It is significant to note that the people modified the ideology of the 1987
Constitution as it stressed the power of the people to act directly in
their capacity as sovereign people. Correspondingly, the power of the
legislators to act as representatives of the people in the matter of
amending or revising the Constitution was diminished for the spring
cannot rise above its source. To reflect this significant shift, Section 1,
Article II of the 1987 Constitution was reworded. It now reads: "the
Philippines is a democratic and republican state. Sovereignty resides in
the people and all government authority emanates from them." The
commissioners of the 1986 Constitutional Commission explained the
addition of the word "democratic," in our first Declaration of Principles,
viz:
MR. NOLLEDO. I am putting the word "democratic" because of the
provisions that we are now adopting which are covering consultations
with the people. For example, we have provisions on recall, initiative,
the right of the people even to participate in lawmaking and other
instances that recognize the validity of interference by the people
through people's organizations x x x x73
MR. OPLE. x x x x The Committee added the word "democratic" to
"republican," and, therefore, the first sentence states: "The Philippines
is a republican and democratic state x x x x
May I know from the committee the reason for adding the word
"democratic" to "republican"? The constitutional framers of the 1935
and 1973 Constitutions were content with "republican." Was this done
merely for the sake of emphasis?
MR. NOLLEDO. x x x x "democratic" was added because of the need
to emphasize people power and the many provisions in the
Constitution that we have approved related to recall, people's
organizations, initiative and the like, which recognize the participation
of the people in policy-making in certain circumstances x x x x
MR. OPLE. I thank the Commissioner. That is a very clear answer and
I think it does meet a need x x x x
MR. NOLLEDO. According to Commissioner Rosario Braid,
"democracy" here is understood as participatory democracy. 74
(emphasis supplied)
The following exchange between Commissioners Rene V. Sarmiento
and Adolfo S. Azcuna is of the same import:75
MR. SARMIENTO. When we speak of republican democratic state, are
we referring to representative democracy?

MR. AZCUNA. That is right.
MR. SARMIENTO. So, why do we not retain the old formulation under
the 1973 and 1935 Constitutions which used the words "republican
state" because "republican state" would refer to a democratic state
where people choose their representatives?
MR. AZCUNA. We wanted to emphasize the participation of the people
in government.
MR. SARMIENTO. But even in the concept "republican state," we are
stressing the participation of the people x x x x So the word
"republican" will suffice to cover popular representation.
MR. AZCUNA. Yes, the Commissioner is right. However, the
committee felt that in view of the introduction of the aspects of direct
democracy such as initiative, referendum or recall, it was necessary to
emphasize the democratic portion of republicanism, of representative
democracy as well. So, we want to add the word "democratic" to
emphasize that in this new Constitution there are instances where the
people would act directly, and not through their representatives.
(emphasis supplied)
Consistent with the stress on direct democracy, the systems of
initiative, referendum, and recall were enthroned as polestars in the
1987 Constitution. Thus, Commissioner Blas F. Ople who introduced
the provision on people's initiative said:76
MR. OPLE. x x x x I think this is just the correct time in history when we
should introduce an innovative mode of proposing amendments to the
Constitution, vesting in the people and their organizations the right to
formulate and propose their own amendments and revisions of the
Constitution in a manner that will be binding upon the government. It is
not that I believe this kind of direct action by the people for amending a
constitution will be needed frequently in the future, but it is good to
know that the ultimate reserves of sovereign power still rest upon the
people and that in the exercise of that power, they can propose
amendments or revision to the Constitution. (emphasis supplied)
Commissioner Jose E. Suarez also explained the people's initiative as
a safety valve, as a peaceful way for the people to change their
Constitution, by citing our experiences under the Marcos government,
viz:77
MR. SUAREZ. We agree to the difficulty in implementing this particular
provision, but we are providing a channel for the expression of the
sovereign will of the people through this initiative system.
MR. BENGZON. Is Section 1, paragraphs (a) and (b), not sufficient
channel for expression of the will of the people, particularly in the
amendment or revision of the Constitution?
MR. SUAREZ. Under normal circumstances, yes. But we know what
happened during the 20 years under the Marcos administration. So, if
the National Assembly, in a manner of speaking, is operating under the
thumb of the Prime Minister or the President as the case may be, and
the required number of votes could not be obtained, we would have to
provide for a safety valve in order that the people could ventilate in a
very peaceful way their desire for amendment to the Constitution.
It is very possible that although the people may be pressuring the
National Assembly to constitute itself as a constituent assembly or to
call a constitutional convention, the members thereof would not heed
the people's desire and clamor. So this is a third avenue that we are
providing for the implementation of what is now popularly known as
people's power. (emphasis supplied)
Commissioner Regalado E. Maambong opined that the people's
initiative could avert a revolution, viz:78
MR. MAAMBONG. x x x x the amending process of the Constitution
could actually avert a revolution by providing a safety valve in bringing
about changes in the Constitution through pacific means. This, in
effect, operationalizes what political law authors call the "prescription of
sovereignty." (emphasis supplied)
The end result is Section 2, Article XVII of the 1987 Constitution which
expressed the right of the sovereign people to propose amendments to
the Constitution by direct action or through initiative. To that extent, the
delegated power of Congress to amend or revise the Constitution has
to be adjusted downward. Thus, Section 1, Article VI of the 1987
Constitution has to be reminted and now provides: "The legislative
power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives, except to the
extent reserved to the people by the provision on initiative and
referendum."
Prescinding from these baseline premises, the argument that the
people through initiative cannot propose substantial amendments to
change the Constitution turns sovereignty on its head. At the very
least, the submission constricts the democratic space for the exercise
of the direct sovereignty of the people. It also denigrates the sovereign
252
people who they claim can only be trusted with the power to propose
"simple" but not "substantial" amendments to the Constitution.
According to Sinco, the concept of sovereignty should be strictly
understood in its legal meaning as it was originally developed in law.79
Legal sovereignty, he explained, is "the possession of unlimited power
to make laws. Its possessor is the legal sovereign. It implies the
absence of any other party endowed with legally superior powers and
privileges. It is not subject to law 'for it is the author and source of law.'
Legal sovereignty is thus the equivalent of legal omnipotence."80
To be sure, sovereignty or popular sovereignty, emphasizes the
supremacy of the people's will over the state which they themselves
have created. The state is created by and subject to the will of the
people, who are the source of all political power. Rightly, we have ruled
that "the sovereignty of our people is not a kabalistic principle whose
dimensions are buried in mysticism. Its metes and bounds are familiar
to the framers of our Constitutions. They knew that in its broadest
sense, sovereignty is meant to be supreme, the jus summi imperu, the
absolute right to govern."81
James Wilson, regarded by many as the most brilliant, scholarly, and
visionary lawyer in the United States in the 1780s, laid down the first
principles of popular sovereignty during the Pennsylvania ratifying
convention of the 1787 Constitution of the United States:82
There necessarily exists, in every government, a power from which
there is no appeal, and which, for that reason, may be termed
supreme, absolute, and uncontrollable.
x x x x Perhaps some politician, who has not considered with sufficient
accuracy our political systems, would answer that, in our governments,
the supreme power was vested in the constitutions x x x x This opinion
approaches a step nearer to the truth, but does not reach it. The truth
is, that in our governments, the supreme, absolute, and uncontrollable
power remains in the people. As our constitutions are superior to our
legislatures, so the people are superior to our constitutions. Indeed the
superiority, in this last instance, is much greater; for the people
possess over our constitution, control in act, as well as right. (emphasis
supplied)
I wish to reiterate that in a democratic and republican state, only the
people is sovereign - - - not the elected President, not the elected
Congress, not this unelected Court. Indeed, the sovereignty of the
people which is indivisible cannot be reposed in any organ of
government. Only its exercise may be delegated to any of them. In our
case, the people delegated to Congress the exercise of the sovereign
power to amend or revise the Constitution. If Congress, as delegate,
can exercise this power to amend or revise the Constitution, can it be
argued that the sovereign people who delegated the power has no
power to substantially amend the Constitution by direct action? If the
sovereign people do not have this power to make substantial
amendments to the Constitution, what did it delegate to Congress?
How can the people lack this fraction of a power to substantially amend
the Constitution when by their sovereignty, all power emanates from
them? It will take some mumbo jumbo to argue that the whole is lesser
than its part. Let Sinco clinch the point:83
But although possession may not be delegated, the exercise of
sovereignty often is. It is delegated to the organs and agents of the
state which constitute its government, for it is only through this
instrumentality that the state ordinarily functions. However ample and
complete this delegation may be, it is nevertheless subject to
withdrawal at any time by the state. On this point Willoughby says:
Thus, States may concede to colonies almost complete autonomy of
government and reserve to themselves a right to control of so slight
and so negative a character as to make its exercise a rare and
improbable occurrence; yet so long as such right of control is
recognized to exist, and the autonomy of the colonies is conceded to
be founded upon a grant and continuing consent of the mother
countries the sovereignty of those mother countries over them is
complete and they are to be considered as possessing only
administrative autonomy and not political independence.
At the very least, the power to propose substantial amendments to the
Constitution is shared with the people. We should accord the most
benign treatment to the sovereign power of the people to propose
substantial amendments to the Constitution especially when the
proposed amendments will adversely affect the interest of some
members of Congress. A contrary approach will suborn the public weal
to private interest and worse, will enable Congress (the delegate) to
frustrate the power of the people to determine their destiny (the
principal).
All told, the teaching of the ages is that constitutional clauses
acknowledging the right of the people to exercise initiative and
referendum are liberally and generously construed in favor of the
people.84 Initiative and referendum powers must be broadly construed
to maintain maximum power in the people.85 We followed this
orientation in Subic Bay Metropolitan Authority v. Commission on
Elections.86 There is not an iota of reason to depart from it.
V

The issues at bar are not political questions.
Petitioners submit that "[t]he validity of the exercise of the right of the
sovereign people to amend the Constitution and their will, as
expressed by the fact that over six million registered voters indicated
their support of the Petition for Initiative, is a purely political question
which is beyond even the very long arm of this Honorable Court's
power of judicial review. Whether or not the 1987 Constitution should
be amended is a matter which the people and the people alone must
resolve in their sovereign capacity."87 They argue that "[t]he power to
propose amendments to the Constitution is a right explicitly bestowed
upon the sovereign people. Hence, the determination by the people to
exercise their right to propose amendments under the system of
initiative is a sovereign act and falls squarely within the ambit of a
'political question.'"88
The petitioners cannot be sustained. This issue has long been interred
by Sanidad v. Commission on Elections, viz:89
Political questions are neatly associated with the wisdom, not the
legality of a particular act. Where the vortex of the controversy refers to
the legality or validity of the contested act, that matter is definitely
justiciable or non-political. What is in the heels of the Court is not the
wisdom of the act of the incumbent President in proposing
amendments to the Constitution, but his constitutional authority to
perform such act or to assume the power of a constituent assembly.
Whether the amending process confers on the President that power to
propose amendments is therefore a downright justiciable question.
Should the contrary be found, the actuation of the President would
merely be a brutum fulmen. If the Constitution provides how it may be
amended, the judiciary as the interpreter of that Constitution, can
declare whether the procedure followed or the authority assumed was
valid or not.
We cannot accept the view of the Solicitor General, in pursuing his
theory of non-justiciability, that the question of the President's authority
to propose amendments and the regularity of the procedure adopted
for submission of the proposals to the people ultimately lie in the
judgment of the latter. A clear Descartes fallacy of vicious cycle. Is it
not that the people themselves, by their sovereign act, provided for the
authority and procedure for the amending process when they ratified
the present Constitution in 1973? Whether, therefore, that
constitutional provision has been followed or not is indisputably a
proper subject of inquiry, not by the people themselves – of course –
who exercise no power of judicial review, but by the Supreme Court in
whom the people themselves vested that power, a power which
includes the competence to determine whether the constitutional
norms for amendments have been observed or not. And, this inquiry
must be done a priori not a posteriori, i.e., before the submission to
and ratification by the people.
In the instant case, the Constitution sets in black and white the
requirements for the exercise of the people's initiative to amend the
Constitution. The amendments must be proposed by the people "upon
a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at
least three per centum of the registered voters therein. No amendment
under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years
thereafter."90 Compliance with these requirements is clearly a
justiciable and not a political question. Be that as it may, how the issue
will be resolved by the people is addressed to them and to them alone.
VI
Whether the Petition for Initiative filed before the COMELEC complied
with Section 2, Article XVII of the Constitution and R.A. 6735 involves
contentious issues of fact which should first be resolved by the
COMELEC.
Oppositors-intervenors impugn the Petition for Initiative as it allegedly
lacks the required number of signatures under Section 2, Article XVII of
the Constitution. Said provision requires that the petition for initiative be
supported by at least twelve per cent (12%) of the total number of
registered voters, of which every legislative district must be
represented by at least three per cent (3%) of the registered voters
therein. Oppositors-intervenors contend that no proper verification of
signatures was done in several legislative districts. They assert that
mere verification of the names listed on the signature sheets without
verifying the signatures reduces the signatures submitted for their
respective legislative districts to mere scribbles on a piece of paper.
Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a
certification dated August 23, 2006 issued by Atty. Marlon S. Casquejo,
Election Officer IV, Third District and OIC, First and Second District,
Davao City, stating that his office has not verified the signatures
submitted by the proponents of the people's initiative. The certification
reads:
This is to CERTIFY that this office (First, Second and Third District,
Davao City) HAS NOT VERIFIED the signatures of registered voters
as per documents submitted in this office by the proponents of the
253
People's Initiative. Consequently, NO ELECTION DOCUMENTS
AND/OR ORDER ISSUED BY HIGHER SUPERIORS used as basis
for such verification of signatures.91
Senate Minority Leader Aquilino Pimentel, Jr., among others, further
clarified that although Atty. Casquejo and Reynne Joy B. Bullecer,
Acting Election Officer IV, First District, Davao City, later issued
certifications stating that the Office of the City Election Officer has
examined the list of individuals appearing in the signature sheets,92
the certifications reveal that the office had verified only the names of
the signatories, but not their signatures. Oppositors-intervenors submit
that not only the names of the signatories should be verified, but also
their signatures to ensure the identities of the persons affixing their
signatures on the signature sheets.
Oppositor-intervenor Luwalhati Antonino also alleged that petitioners
failed to obtain the signatures of at least three per cent (3%) of the total
number of registered voters in the First Legislative District of South
Cotabato. For the First District of South Cotabato, petitioners submitted
3,182 signatures for General Santos City, 2,186 signatures for Tupi,
3,308 signatures for Tampakan and 10,301 signatures for Polomolok,
or 18,977 signatures out of 359,488 registered voters of said district.
Antonino, however, submitted to this Court a copy of the certification by
Glory D. Rubio, Election Officer III, Polomolok, dated May 8, 2006,
showing that the signatures from Polomolok were not verified because
the Book of Voters for the whole municipality was in the custody of the
Clerk of Court of the Regional Trial Court, Branch 38, Polomolok,
South Cotabato.93 Excluding the signatures from Polomolok from the
total number of signatures from the First District of South Cotabato
would yield only a total of 8,676 signatures which falls short of the
three per cent (3%) requirement for the district.
Former President Joseph Ejercito Estrada and Pwersa ng Masang
Pilipino likewise submitted to this Court a certification issued by Atty.
Stalin A. Baguio, City Election Officer IV, Cagayan de Oro City, stating
that the list of names appearing on the signature sheets corresponds to
the names of registered voters in the city, thereby implying that they
have not actually verified the signatures.94
The argument against the sufficiency of the signatures is further
bolstered by Alternative Law Groups, Inc., which submitted copies of
similarly worded certifications from the election officers from
Zamboanga del Sur95 and from Compostela Valley.96 Alternative Law
Groups, Inc., further assails the regularity of the verification process as
it alleged that verification in some areas were conducted by Barangay
officials and not by COMELEC election officers. It filed with this Court
copies of certifications from Sulu and Sultan Kudarat showing that the
verification was conducted by local officials instead of COMELEC
personnel.97
Petitioners, on the other hand, maintain that the verification conducted
by the election officers sufficiently complied with the requirements of
the Constitution and the law on initiative.
Contravening the allegations of oppositors-intervenors on the lack of
verification in Davao City and in Polomolok, South Cotabato, petitioner
Aumentado claimed that the same election officers cited by the
oppositors-intervenors also issued certifications showing that they have
verified the signatures submitted by the proponents of the people's
initiative. He presented copies of the certifications issued by Atty.
Marlon S. Casquejo for the Second and Third Legislative Districts of
Davao City stating that he verified the signatures of the proponents of
the people's initiative. His certification for the Second District states:
This is to CERTIFY that this Office has examined the list of individuals
as appearing in the Signature Sheets of the Registered Voters of
District II, Davao City, submitted on April 7, 2006 by MR. NONATO
BOLOS, Punong Barangay, Centro, Davao City for verification which
consists of THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662)
signatures.
Anent thereto, it appears that of the THIRTY THOUSAND SIX
HUNDRED SIXTY-TWO (30,662) individuals, only TWENTY-TWO
THOUSAND SIX HUNDRED SIXTY-EIGHT (22,668) individuals were
found to be REGISTERED VOTERS, in the Computerized List of
Voters of SECOND CONGRESSIONAL DISTRICT, DAVAO CITY.98
It was also shown that Atty. Casquejo had issued a clarificatory
certification regarding the verification process conducted in Davao City.
It reads:
Regarding the verification of the signatures of registered voters, this
Office has previously issued two (2) separate certifications for the 2nd
and 3rd Districts of Davao City on April 20, 2006 and April 26, 2006,
respectively, specifically relating to the voters who supported the
people's initiative. It was stated therein that the names submitted,
comprising 22,668 individual voters in the 2nd District and 18,469
individual voters in the 3rd District, were found [to] be registered voters
of the respective districts mentioned as verified by this Office based on
the Computerized List of Voters.
It must be clarified that the August 23, 2006 Certification was issued in
error and by mistake for the reason that the signature verification has
not been fully completed as of that date.
I hereby CERTIFY that this Office has examined the signatures of the
voters as appearing in the signature sheets and has compared these
with the signatures appearing in the book of voters and computerized
list of voters x x x 99
Petitioner Aumentado also submitted a copy of the certification dated
May 8, 2006 issued by Polomolok Election Officer Glory D. Rubio to
support their claim that said officer had conducted a verification of
signatures in said area. The certification states:
This is to certify further, that the total 68,359 registered voters of this
municipality, as of the May 10, 2004 elections, 10,804 names with
signatures were submitted for verification and out of which 10,301 were
found to be legitimate voters as per official list of registered voters,
which is equivalent to 15.07% of the total number of registered voters
of this Municipality.100
In addition to the lack of proper verification of the signatures in
numerous legislative districts, allegations of fraud and irregularities in
the collection of signatures in Makati City were cited by Senator
Pimentel, among others, to wit:
(1) No notice was given to the public, for the benefit of those who may
be concerned, by the Makati COMELEC Office that signature sheets
have already been submitted to it for "verification." The camp of Mayor
Binay was able to witness the "verification process" only because of
their pro-active stance;
(2) In District 1, the proponents of charter change submitted 43,405
signatures for verification. 36,219 alleged voters' signatures (83% of
the number of signatures submitted) were rejected outright. 7,186
signatures allegedly "passed" COMELEC's initial scrutiny. However,
upon examination of the signature sheets by Atty. Mar-len Abigail
Binay, the said 7,186 signatures could not be accounted for. Atty.
Binay manually counted 2,793 signatures marked with the word "OK"
and 3,443 signatures marked with a check, giving only 6,236
"apparently verified signatures." Before the COMELEC officer issued
the Certification, Atty. Binay already submitted to the said office not
less than 55 letters of "signature withdrawal," but no action was ever
taken thereon;
(3) In District 2, 29,411 signatures were submitted for verification.
23,521 alleged voters' signatures (80% of those submitted) were
rejected outright. Of the 5,890 signatures which allegedly passed the
COMELEC's initial scrutiny, some more will surely fail upon closer
examination;
(4) In the absence of clear, transparent, and uniform rules the
COMELEC personnel did not know how to treat the objections and
other observations coming from the camp of Mayor Binay. The
oppositors too did not know where to go for their remedy when the
COMELEC personnel merely "listened" to their objections and other
observations. As mentioned earlier, the COMELEC personnel did not
even know what to do with the many "letters of signature withdrawal"
submitted to it;
(5) Signatures of people long dead, in prison, abroad, and other
forgeries appear on the Sigaw ng Bayan Signature Sheets. There is
even a 15-year old alleged signatory;
(6) There are Signature Sheets obviously signed by one person;
(7) A Calara M. Roberto and a Roberto M. Calara both allegedly signed
the Signature Sheets.101
Also, there are allegations that many of the signatories did not
understand what they have signed as they were merely misled into
signing the signature sheets. Opposed to these allegations are rulings
that a person who affixes his signature on a document raises the
presumption that the person so signing has knowledge of what the
document contains. Courts have recognized that there is great value in
the stability of records, so to speak, that no one should commit herself
or himself to something in writing unless she or he is fully aware and
cognizant of the effect it may have upon her on him.102 In the same
vein, we have held that a person is presumed to have knowledge of the
contents of a document he has signed.103 But as this Court is not a
trier of facts, it cannot resolve the issue.
In sum, the issue of whether the petitioners have complied with the
constitutional requirement that the petition for initiative be signed by at
least twelve per cent (12%) of the total number of registered voters, of
which every legislative district must be represented by at least three
per cent (3%) of the registered voters therein, involves contentious
facts. Its resolution will require presentation of evidence and their
calibration by the COMELEC according to its rules. During the oral
argument on this case, the COMELEC, through Director Alioden Dalaig
of its Law Department, admitted that it has not examined the
documents submitted by the petitioners in support of the petition for
initiative, as well as the documents filed by the oppositors to buttress
254
their claim that the required number of signatures has not been met.
The exchanges during the oral argument likewise clearly show the
need for further clarification and presentation of evidence to prove
certain material facts.104
The only basis used by the COMELEC to dismiss the petition for
initiative was this Court's ruling in Santiago v. COMELEC that R.A.
6735 was insufficient. It has yet to rule on the sufficiency of the form
and substance of the petition. I respectfully submit that this issue
should be properly litigated before the COMELEC where both parties
will be given full opportunity to prove their allegations.
For the same reasons, the sufficiency of the Petition for Initiative and
its compliance with the requirements of R.A. 6735 on initiative and its
implementing rules is a question that should be resolved by the
COMELEC at the first instance, as it is the body that is mandated by
the Constitution to administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and recall.105
VII
COMELEC gravely abused its discretion when it denied due course to
the Lambino and Aumentado petition.
In denying due course to the Lambino and Aumentado petition,
COMELEC relied on this Court's ruling in Santiago permanently
enjoining it from entertaining or taking cognizance of any petition for
initiative on amendments to the Constitution until a sufficient law shall
have been validly enacted to provide for the implementation of the
system.
Again, I respectfully submit that COMELEC's reliance on Santiago
constitutes grave abuse of discretion amounting to lack of jurisdiction.
The Santiago case did not establish the firm doctrine that R.A. 6735 is
not a sufficient law to implement the constitutional provision allowing
people's initiative to amend the Constitution. To recapitulate, the
records show that in the original decision, eight (8) justices106 voted
that R.A. 6735 was not a sufficient law; five (5) justices107 voted that
said law was sufficient; and one (1) justice108 abstained from voting
on the issue holding that unless and until a proper initiatory pleading is
filed, the said issue is not ripe for adjudication.109
Within the reglementary period, the respondents filed their motion for
reconsideration. On June 10, 1997, the Court denied the motion. Only
thirteen (13) justices resolved the motion for Justice Torres inhibited
himself.110 Of the original majority of eight (8) justices, only six (6)
reiterated their ruling that R.A. 6735 was an insufficient law. Justice
Hermosisima, originally part of the majority of eight (8) justices,
changed his vote and joined the minority of five (5) justices. He opined
without any equivocation that R.A. 6735 was a sufficient law, thus:
It is one thing to utter a happy phrase from a protected cluster; another
to think under fire – to think for action upon which great interests
depend." So said Justice Oliver Wendell Holmes, and so I am guided
as I reconsider my concurrence to the holding of the majority that "R.A.
No. 6735 is inadequate to cover the system of initiative on
amendments to the Constitution and to have failed to provide sufficient
standard for subordinate legislation" and now to interpose my dissent
thereto.
xxx
WHEREFORE, I vote to dismiss the Delfin petition.
I vote, however, to declare R.A. No. 6735 as adequately providing the
legal basis for the exercise by the people of their right to amend the
Constitution through initiative proceedings and to uphold the validity of
COMELEC Resolution No. 2300 insofar as it does not sanction the
filing of the initiatory petition for initiative proceedings to amend the
Constitution without the required names and/or signatures of at least
12% of all the registered voters, of which every legislative district must
be represented by at least 3% of the registered voters therein.
(emphasis supplied)
Justice Vitug remained steadfast in refusing to rule on the sufficiency of
R.A. 6735. In fine, the final vote on whether R.A. 6735 is a sufficient
law was 6-6 with one (1) justice inhibiting himself and another justice
refusing to rule on the ground that the issue was not ripe for
adjudication.
It ought to be beyond debate that the six (6) justices who voted that
R.A. 6735 is an insufficient law failed to establish a doctrine that could
serve as a precedent. Under any alchemy of law, a deadlocked vote of
six (6) is not a majority and a non-majority cannot write a rule with
precedential value. The opinion of the late Justice Ricardo J. Francisco
is instructive, viz:
As it stands, of the thirteen justices who took part in the deliberations
on the issue of whether the motion for reconsideration of the March 19,
1997 decision should be granted or not, only the following justices
sided with Mr. Justice Davide, namely: Chief Justice Narvasa, and
Justices Regalado, Romero, Bellosillo and Kapunan. Justices Melo,
Puno, Mendoza, Hermosisima, Panganiban and the undersigned voted
to grant the motion; while Justice Vitug "maintained his opinion that the
matter was not ripe for judicial adjudication." In other words, only five,
out of the other twelve justices, joined Mr. Justice Davide's June 10,
1997 ponencia finding R.A. No. 6735 unconstitutional for its failure to
pass the so called "completeness and sufficiency standards" tests. The
"concurrence of a majority of the members who actually took part in the
deliberations" which Article VII, Section 4(2) of the Constitution
requires to declare a law unconstitutional was, beyond dispute, not
complied with. And even assuming, for the sake of argument, that the
constitutional requirement on the concurrence of the "majority" was
initially reached in the March 19, 1997 ponencia, the same is
inconclusive as it was still open for review by way of a motion for
reconsideration. It was only on June 10, 1997 that the constitutionality
of R.A. No. 6735 was settled with finality, sans the constitutionally
required "majority." The Court's declaration, therefore, is manifestly
grafted with infirmity and wanting in force necessitating, in my view, the
reexamination of the Court's decision in G.R. No. 127325. It behooves
the Court "not to tarry any longer" nor waste this opportunity accorded
by this new petition (G.R. No. 129754) to relieve the Court's
pronouncement from constitutional infirmity.
The jurisprudence that an equally divided Court can never set a
precedent is well-settled. Thus, in the United States, an affirmance in
the Federal Supreme Court upon equal division of opinion is not an
authority for the determination of other cases, either in that Court or in
the inferior federal courts. In Neil v. Biggers,111 which was a habeas
corpus state proceeding by a state prisoner, the U.S. Supreme Court
held that its equally divided affirmance of petitioner's state court
conviction was not an "actual adjudication" barring subsequent
consideration by the district court on habeas corpus. In discussing the
non-binding effect of an equal division ruling, the Court reviewed the
history of cases explicating the disposition "affirmed by an equally
divided Court:"
In this light, we review our cases explicating the disposition "affirmed
by an equally divided Court." On what was apparently the first occasion
of an equal division, The Antelope, 10 Wheat, 66, 6 L. Ed. 268 (1825),
the Court simply affirmed on the point of division without much
discussion. Id., at 126-127. Faced with a similar division during the
next Term, the Court again affirmed, Chief Justice Marshall explaining
that "the principles of law which have been argued, cannot be settled;
but the judgment is affirmed, the court being divided in opinion upon it."
Etting v. Bank of United States, 11 Wheat. 59, 78, 6 L. Ed. 419 (1826).
As was later elaborated in such cases, it is the appellant or petitioner
who asks the Court to overturn a lower court's decree. "If the judges
are divided, the reversal cannot be had, for no order can be made. The
judgment of the court below, therefore, stands in full force. It is indeed,
the settled practice in such case to enter a judgment of affirmance; but
this is only the most convenient mode of expressing the fact that the
cause is finally disposed of in conformity with the action of the court
below, and that that court can proceed to enforce its judgment. The
legal effect would be the same if the appeal, or writ of error, were
dismissed." Durant v. Essex Co., 7 Wall. 107, 112, 19 L. Ed. 154
(1869). Nor is an affirmance by an equally divided Court entitled to
precedential weight. Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264, 80
S. Ct. 1463, 1464, 4 L. Ed. 2d 1708 (1960).xxx"
This doctrine established in Neil has not been overturned and has
been cited with approval in a number of subsequent cases,112 and
has been applied in various state jurisdictions.
In the case of In the Matter of the Adoption of Erin G., a Minor
Child,113 wherein a putative father sought to set aside a decree
granting petition for adoption of an Indian child on grounds of
noncompliance with the requirements of Indian Child Welfare Act
(ICWA), the Supreme Court of Alaska held that its decision in In re
Adoption of T.N.F. (T.N.F.),114 which lacked majority opinion
supporting holding that an action such as the putative father's would be
governed by the state's one-year statute of limitations, was not entitled
to stare decisis effect. In T.N.F., a majority of the justices sitting did not
agree on a common rationale, as two of four participating justices
agreed that the state's one-year statute of limitations applied, one
justice concurred in the result only, and one justice dissented. There
was no "narrower" reasoning agreed upon by all three affirming
justices. The concurring justice expressed no opinion on the statute of
limitations issue, and in agreeing with the result, he reasoned that
ICWA did not give the plaintiff standing to sue.115 The two-justice
plurality, though agreeing that the state's one-year statute of limitations
applied, specifically disagreed with the concurring justice on the
standing issue.116 Because a majority of the participating justices in
T.N.F. did not agree on any one ground for affirmance, it was not
accorded stare decisis effect by the state Supreme Court.
The Supreme Court of Michigan likewise ruled that the doctrine of stare
decisis does not apply to plurality decisions in which no majority of the
justices participating agree to the reasoning and as such are not
authoritative interpretations binding on the Supreme Court.117
In State ex rel. Landis v. Williams,118 the Supreme Court of Florida, in
an equally divided opinion on the matter,119 held that chapter 15938,
Acts of 1933 must be allowed to stand, dismissing a quo warranto suit
without prejudice. The Court held:
255
In a cause of original jurisdiction in this court a statute cannot be
declared unconstitutional nor its enforcement nor operation judicially
interfered with, except by the concurrence of a majority of the members
of the Supreme Court sitting in the cause wherein the constitutionality
of the statute is brought in question or judicial relief sought against its
enforcement. Section 4 of Article 5, state Constitution.
Therefore in this case the concurrence of a majority of the members of
this court in holding unconstitutional said chapter 15938, supra, not
having been had, it follows that the statute in controversy must be
allowed to stand and accordingly be permitted to be enforced as a
presumptively valid act of the Legislature, and that this proceeding in
quo warranto must be dismissed without prejudice. Spencer v. Hunt
(Fla.) 147 So. 282. This decision is not to be regarded as a judicial
precedent on the question of constitutional law involved concerning the
constitutionality vel non of chapter 15938. State ex rel. Hampton v.
McClung, 47 Fla. 224, 37 So. 51.
Quo warranto proceeding dismissed without prejudice by equal division
of the court on question of constitutionality of statute involved.
In U.S. v. Pink,120 the Court held that the affirmance by the U.S.
Supreme Court by an equally divided vote of a decision of the New
York Court of Appeals that property of a New York branch of a Russian
insurance company was outside the scope of the Russian Soviet
government's decrees terminating existence of insurance companies in
Russia and seizing their assets, while conclusive and binding upon the
parties as respects the controversy in that action, did not constitute an
authoritative "precedent."
In Berlin v. E.C. Publications, Inc.,121 the U.S. Court of Appeals
Second Circuit, in holding that printed lyrics which had the same meter
as plaintiffs' lyrics, but which were in form a parody of the latter, did not
constitute infringement of plaintiffs' copyrights, ruled that the prior case
of Benny v. Loew's, Inc.,122 which was affirmed by an equally divided
court, was not binding upon it, viz:
Under the precedents of this court, and, as seems justified by reason
as well as by authority, an affirmance by an equally divided court is as
between the parties, a conclusive determination and adjudication of the
matter adjudged; but the principles of law involved not having been
agreed upon by a majority of the court sitting prevents the case from
becoming an authority for the determination of other cases, either in
this or in inferior courts.123
In Perlman v. First National Bank of Chicago,124 the Supreme Court of
Illinois dismissed the appeal as it was unable to reach a decision
because two judges recused themselves and the remaining members
of the Court were so divided, it was impossible to secure the
concurrence of four judges as is constitutionally required. The Court
followed the procedure employed by the U.S. Supreme Court when the
Justices of that Court are equally divided, i.e. affirm the judgment of the
court that was before it for review. The affirmance is a conclusive
determination and adjudication as between the parties to the
immediate case, it is not authority for the determination of other cases,
either in the Supreme Court or in any other court. It is not "entitled to
precedential weight." The legal effect of such an affirmance is the
same as if the appeal was dismissed.125
The same rule is settled in the English Courts. Under English
precedents,126 an affirmance by an equally divided Court is, as
between the parties, a conclusive determination and adjudication of the
matter adjudged; but the principles of law involved not having been
agreed upon by a majority of the court sitting prevents the case from
becoming an authority for the determination of other cases, either in
that or in inferior courts.
After a tour of these cases, we can safely conclude that the prevailing
doctrine is that, the affirmance by an equally divided court merely
disposes of the present controversy as between the parties and settles
no issue of law; the affirmance leaves unsettled the principle of law
presented by the case and is not entitled to precedential weight or
value. In other words, the decision only has res judicata and not stare
decisis effect. It is not conclusive and binding upon other parties as
respects the controversies in other actions.
Let us now examine the patent differences between the petition at bar
and the Delfin Petition in the Santiago case which will prevent the
Santiago ruling from binding the present petitioners. To start with, the
parties are different. More importantly, the Delfin Petition did not
contain the signatures of the required number of registered voters
under the Constitution: the requirement that twelve per cent (12%) of
all the registered voters in the country wherein each legislative district
is represented by at least three per cent (3%) of all the registered
voters therein was not complied with. For this reason, we ruled
unanimously that it was not the initiatory petition which the COMELEC
could properly take cognizance of. In contrast, the present petition
appears to be accompanied by the signatures of the required number
of registered voters. Thus, while the Delfin Petition prayed that an
Order be issued fixing the time and dates for signature gathering all
over the country, the Lambino and Aumentado petition, prayed for the
calling of a plebiscite to allow the Filipino people to express their
sovereign will on the proposition. COMELEC cannot close its eyes to
these material differences.
Plainly, the COMELEC committed grave abuse of discretion amounting
to lack of jurisdiction in denying due course to the Lambino and
Aumentado petition on the basis of its mistaken notion that Santiago
established the doctrine that R.A. 6735 was an insufficient law. As
aforestressed, that ruling of six (6) justices who do not represent the
majority lacks precedential status and is non-binding on the present
petitioners.
The Court's dismissal of the PIRMA petition is of no moment. Suffice it
to say that we dismissed the PIRMA petition on the principle of res
judicata. This was stressed by former Chief Justice Hilario G. Davide
Jr., viz:
The following are my reasons as to why this petition must be
summarily dismissed:
First, it is barred by res judicata. No one aware of the pleadings filed
here and in Santiago v. COMELEC (G.R. No. 127325, 19 March 1997)
may plead ignorance of the fact that the former is substantially identical
to the latter, except for the reversal of the roles played by the principal
parties and inclusion of additional, yet not indispensable, parties in the
present petition. But plainly, the same issues and reliefs are raised and
prayed for in both cases.
The principal petitioner here is the PEOPLE'S INITIATIVE FOR
REFORM, MODERNIZATION, AND ACTION (PIRMA) and spouses
ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-
described as "a non-stock, non-profit organization duly organized and
existing under Philippine laws with office address at Suite 403, Fedman
Suites, 199 Salcedo Street, Legaspi Village, Makati City," with
"ALBERTO PEDROSA and CARMEN PEDROSA" as among its
"officers." In Santiago, the PEDROSAS were made respondents as
founding members of PIRMA which, as alleged in the body of the
petition therein, "proposes to undertake the signature drive for a
people's initiative to amend the Constitution." In Santiago then, the
PEDROSAS were sued in their capacity as founding members of
PIRMA.
The decision in Santiago specifically declared that PIRMA was duly
represented at the hearing of the Delfin petition in the COMELEC. In
short, PIRMA was intervenor-petitioner therein. Delfin alleged in his
petition that he was a founding member of the Movement for People's
Initiative, and under footnote no. 6 of the decision, it was noted that
said movement was "[l]ater identified as the People's Initiative for
Reforms, Modernization and Action, or PIRMA for brevity." In their
Comment to the petition in Santiago, the PEDROSAS did not deny that
they were founding members of PIRMA, and by their arguments,
demonstrated beyond a shadow of a doubt that they had joined Delfin
or his cause.
No amount of semantics may then shield herein petitioners PIRMA and
the PEDROSAS, as well as the others joining them, from the operation
of the principle of res judicata, which needs no further elaboration.
(emphasis supplied)
Justice Josue N. Bellosillo adds:
The essential requisites of res judicata are: (1) the former judgment
must be final; (2) it must have been rendered by a court having
jurisdiction over the subject matter and the parties; (3) it must be a
judgment on the merits; and (4) there must be between the first and
second actions identity of parties, identity of subject matter, and
identity of causes of action.127
Applying these principles in the instant case, we hold that all the
elements of res judicata are present. For sure, our Decision in
Santiago v. COMELEC, which was promulgated on 19 March 1997,
and the motions for reconsideration thereof denied with finality on 10
June 1997, is undoubtedly final. The said Decision was rendered by
this Court which had jurisdiction over the petition for prohibition under
Rule 65. Our judgment therein was on the merits, i.e., rendered only
after considering the evidence presented by the parties as well as their
arguments in support of their respective claims and defenses. And, as
between Santiago v. COMELEC case and COMELEC Special Matter
No. 97-001 subject of the present petition, there is identity of parties,
subject matter and causes of action.
Petitioners contend that the parties in Santiago v. COMELEC are not
identical to the parties in the instant case as some of the petitioners in
the latter case were not parties to the former case. However, a perusal
of the records reveals that the parties in Santiago v. COMELEC
included the COMELEC, Atty. Jesus S. Delfin, spouses Alberto and
Carmen Pedrosa, in their capacities as founding members of PIRMA,
as well as Atty. Pete Quirino-Quadra, another founding member of
PIRMA, representing PIRMA, as respondents. In the instant case, Atty.
Delfin was never removed, and the spouses Alberto and Carmen
Pedrosa were joined by several others who were made parties to the
petition. In other words, what petitioners did was to make it appear that
the PIRMA Petition was filed by an entirely separate and distinct group
256
by removing some of the parties involved in Santiago v. COMELEC
and adding new parties. But as we said in Geralde v. Sabido128-
A party may not evade the application of the rule of res judicata by
simply including additional parties in the subsequent case or by not
including as parties in the later case persons who were parties in the
previous suit. The joining of new parties does not remove the case
from the operation of the rule on res judicata if the party against whom
the judgment is offered in evidence was a party in the first action;
otherwise, the parties might renew the litigation by simply joining new
parties.
The fact that some persons or entities joined as parties in the PIRMA
petition but were not parties in Santiago v. COMELEC does not affect
the operation of the prior judgment against those parties to the PIRMA
Petition who were likewise parties in Santiago v. COMELEC, as they
are bound by such prior judgment.
Needless to state, the dismissal of the PIRMA petition which was
based on res judicata binds only PIRMA but not the petitioners.
VIII
Finally, let the people speak.
"It is a Constitution we are expounding" solemnly intoned the great
Chief Justice John Marshall of the United States in the 1819 case of
M'cCulloch v. Maryland.129 Our Constitution is not a mere collection of
slogans. Every syllable of our Constitution is suffused with significance
and requires our full fealty. Indeed, the rule of law will wither if we allow
the commands of our Constitution to underrule us.
The first principle enthroned by blood in our Constitution is the
sovereignty of the people. We ought to be concerned with this first
principle, i.e., the inherent right of the sovereign people to decide
whether to amend the Constitution. Stripped of its abstractions,
democracy is all about who has the sovereign right to make decisions
for the people and our Constitution clearly and categorically says it is
no other than the people themselves from whom all government
authority emanates. This right of the people to make decisions is the
essence of sovereignty, and it cannot receive any minimalist
interpretation from this Court. If there is any principle in the Constitution
that cannot be diluted and is non-negotiable, it is this sovereign right of
the people to decide.
This Court should always be in lockstep with the people in the exercise
of their sovereignty. Let them who will diminish or destroy the
sovereign right of the people to decide be warned. Let not their
sovereignty be diminished by those who belittle their brains to
comprehend changes in the Constitution as if the people themselves
are not the source and author of our Constitution. Let not their
sovereignty be destroyed by the masters of manipulation who
misrepresent themselves as the spokesmen of the people.
Be it remembered that a petition for people's initiative that complies
with the requirement that it "must be signed by at least 12% of the total
number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein" is but the
first step in a long journey towards the amendment of the Constitution.
Lest it be missed, the case at bar involves but a proposal to amend the
Constitution. The proposal will still be debated by the people and at this
time, there is yet no fail-safe method of telling what will be the result of
the debate. There will still be a last step to the process of amendment
which is the ratification of the proposal by a majority of the people in a
plebiscite called for the purpose. Only when the proposal is approved
by a majority of the people in the plebiscite will it become an
amendment to the Constitution. All the way, we cannot tie the tongues
of the people. It is the people who decide for the people are not an
obscure footnote in our Constitution.
The people's voice is sovereign in a democracy. Let us hear them. Let
us heed them. Let us not only sing paens to the people's sovereignty.
Yes, it is neither too soon nor too late to let the people speak.
IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the
resolution of the Commission on Elections dated August 31, 2006,
denying due course to the Petition for Initiative filed by Raul L. Lambino
and Erico B. Aumentado in their own behalf and together with some
6.3 million registered voters who affixed their signatures thereon and to
REMAND the petition at bar to the Commission on Elections for further
proceedings.
REYNATO S. PUNO
Associate Justice
____________________
EN BANC
G. R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with
6,327,952 REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION
CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT,
ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN
MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND
GENERAL WORKERS ORGANIZATION (PTGWO) and VICTORINO
F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S.
MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T.
TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR.,
ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-
QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD,
ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA,
GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO
STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY
SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P.
ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-
BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C.
TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN
T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT
INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL,
JR., and SENATORS SERGIO R. OSMEÑA III, JAMBY A.S.
MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA,
ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO
ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR
OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA
A. LAT, ANTONIO L. SALVADOR and RANDALL C. TABAYOYONG,
SENATE OF THE PHILIPPINES, Represented by its President,
MANUEL VILLAR, JR., Oppositors-Intervenors;
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.
Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION
Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER,
RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
QUISUMBING, J.:
1. With due respect to the main opinion written by J. Antonio T. Carpio,
and the dissent of J. Reynato S. Puno, I view the matter before us in
this petition as one mainly involving a complex political question.1
While admittedly the present Constitution lays down certain numerical
requirements for the conduct of a People's Initiative, such as the
percentages of signatures – being 12% of the total number of
registered voters, provided each legislative district is represented by at
least 3% – they are not the main points of controversy. Stated in simple
terms, what this Court must decide is whether the Commission on
Elections gravely abused its discretion when it denied the petition to
submit the proposed changes to the Constitution directly to the vote of
the sovereign people in a plebiscite. Technical questions, e.g. whether
petitioners should have filed a Motion for Reconsideration before
coming to us, are of no moment in the face of the transcendental issue
at hand. What deserve our full attention are the issues concerning the
applicable rules as well as statutory and constitutional limitations on
the conduct of the People's Initiative.
2. It must be stressed that no less than the present Constitution itself
empowers the people to "directly" propose amendments through their
own "initiative." The subject of the instant petition is by way of
exercising that initiative in order to change our form of government
from presidential to parliamentary. Much has been written about the
fulsome powers of the people in a democracy. But the most basic
concerns the idea that sovereignty resides in the people and that all
government authority emanates from them. Clearly, by the power of
popular initiative, the people have the sovereign right to change the
present Constitution. Whether the initial moves are done by a
Constitutional Convention, a Constitutional Assembly, or a People's
Initiative, in the end every amendment -- however insubstantial or
radical -- must be submitted to a plebiscite. Thus, it is the ultimate will
of the people expressed in the ballot, that matters.2
3. I cannot fault the COMELEC, frankly, for turning down the petition of
Messrs. Lambino, et al. For the COMELEC was just relying on
precedents, with the common understanding that, pursuant to the
cases of Santiago v. COMELEC3 and PIRMA v. COMELEC,4 the
COMELEC had been permanently enjoined from entertaining any
petition for a people's initiative to amend the Constitution by no less
than this Court. In denying due course below to Messrs. Lambino and
Aumentado's petition, I could not hold the COMELEC liable for grave
abuse of discretion when they merely relied on this Court's unequivocal
rulings. Of course, the Santiago and the PIRMA decisions could be
reviewed and reversed by this Court, as J. Reynato S. Puno submits
now. But until the Court does so, the COMELEC was duty bound to
respect and obey this Court's mandate, for the rule of law to prevail.
257
4. Lastly, I see no objection to the remand to the COMELEC of the
petition of Messrs. Lambino and Aumentado and 6.327 million voters,
for further examination of the factual requisites before a plebiscite is
conducted. On page 4 of the assailed Resolution of the respondent
dated August 31, 2006, the COMELEC tentatively expressed its view
that "even if the signatures in the instant Petition appear to meet the
required minimum per centum of the total number of registered voters",
the COMELEC could not give the Petition due course because of our
view that R.A. No. 6735 was inadequate. That, however, is now refuted
by Mr. Justice Puno's scholarly ponencia. Now that we have revisited
the Santiago v. COMELEC decision, there is only one clear task for
COMELEC. In my view, the only doable option left for the COMELEC,
once factual issues are heard and resolved, is to give due course to
the petition for the initiative to amend our Constitution so that the
sovereign people can vote on whether a parliamentary system of
government should replace the present presidential system.
5. I am therefore in favor of letting the sovereign people speak on their
choice of the form of government as a political question soonest. (This
I say without fear of media opinion that our judicial independence has
been tainted or imperiled, for it is not.) Thus I vote for the remand of
the petition. Thereafter, as prayed for, COMELEC should forthwith
certify the Petition as sufficient in form and substance and call for the
holding of a plebiscite within the period mandated by the basic law, not
earlier than sixty nor later than ninety days from said certification. Only
a credible plebiscite itself, conducted peacefully and honestly, can
bring closure to the instant political controversy.
LEONARDO A. QUISUMBING
Associate Justice
____________________
EN BANC
G. R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with
6,327,952 REGISTERED VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
G. R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE
A.Q. SAGUISAG, petitioners,
vs.
HE COMMISSION ON ELECTIONS, Represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners RESURRECCION
Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER,
RENE V. SARMIENTO, and John Doe and Peter Doe, respondents.
x ---------------------------------------------------------------------------------------- x
DISSENTING OPINION
CORONA, J.:
The life of the law is not logic but experience.1 Our collective
experience as a nation breathes life to our system of laws, especially to
the Constitution. These cases promise to significantly contribute to our
collective experience as a nation. Fealty to the primary constitutional
principle that the Philippines is not merely a republican State but a
democratic one as well behooves this Court to affirm the right of the
people to participate directly in the process of introducing changes to
their fundamental law. These petitions present such an opportunity.
Thus, this is an opportune time for this Court to uphold the sovereign
rights of the people.
I agree with the opinion of Mr. Justice Reynato Puno who has
sufficiently explained the rationale for upholding the people's initiative.
However, I wish to share my own thoughts on certain matters I deem
material and significant.
Santiago Does Not Apply to This Case But Only to the 1997 Delfin
Petition
The COMELEC denied the petition for initiative filed by petitioners
purportedly on the basis of this Court's ruling in Santiago v.
COMELEC2 that: (1) RA 6753 was inadequate to cover the system of
initiative regarding amendments to the Constitution and (2) the
COMELEC was permanently enjoined from entertaining or taking
cognizance of any petition for initiative regarding amendments to the
Constitution until a sufficient law was validly enacted to provide for the
implementation of the initiative provision.
However, Santiago should not apply to this case but only to the petition
of Delfin in 1997. It would be unreasonable to make it apply to all
petitions which were yet unforeseen in 1997. The fact is that Santiago
was focused on the Delfin petition alone.
Those who oppose the exercise of the people's right to initiate changes
to the Constitution via initiative claim that Santiago barred any and all
future petitions for initiative by virtue of the doctrines of stare decisis
and res judicata. The argument is flawed.
The ponencia of Mr. Justice Puno has amply discussed the arguments
relating to stare decisis. Hence, I will address the argument from the
viewpoint of res judicata.
Res judicata is the rule that a final judgment rendered by a court of
competent jurisdiction on the merits is conclusive as to the rights of the
parties and their privies and, as to them, constitutes an absolute bar to
a subsequent action involving the same claim, demand or cause of
action.3 It has the following requisites: (1) the former judgment or order
must be final; (2) it must have been rendered by a court having
jurisdiction of the subject matter and of the parties; (3) it must be a
judgment or order on the merits and (4) there must be identity of
parties, of subject matter, and of cause of action between the first and
second actions.4
There is no identity of parties in Santiago and the instant case. While
the COMELEC was also the respondent in Santiago, the petitioners in
that case and those in this case are different. More significantly, there
is no identity of causes of action in the two cases. Santiago involved
amendments to Sections 4 and 7 of Article VI, Section 4 of Article VII
and Section 8 of Article X of the Constitution while the present petition
seeks to amend Sections 1to 7 of Article VI and Sections 1 to 4 of the
1987 Constitution. Clearly, therefore, the COMELEC committed grave
abuse of discretion when it ruled that the present petition for initiative
was barred by Santiago and, on that ground, dismissed the petition.
The present petition and that in Santiago are materially different from
each other. They are not based on the same facts. There is thus no
cogent reason to frustrate and defeat the present direct action of the
people to exercise their sovereignty by proposing changes to their
fundamental law.
People's Initiative Should Not
Be Subjected to Conditions
People's initiative is an option reserved by the people for themselves
exclusively. Neither Congress nor the COMELEC has the power to
curtail or defeat this exclusive power of the people to change the
Constitution. Neither should the exercise of this power be made subject
to any conditions, as some would have us accept.
Oppositors to the people's initiative point out that this Court ruled in
Santiago that RA 6735 was inadequate to cover the system of initiative
on amendments to the Constitution and, thus, no law existed to enable
the people to directly propose changes to the Constitution. This
reasoning is seriously objectionable.
The pronouncement on the insufficiency of RA 6735 was, to my mind,
out of place. It was unprecedented and dangerously transgressed the
domain reserved to the legislature.
While the legislature is authorized to establish procedures for
determining the validity and sufficiency of a petition to amend the
constitution,5 that procedure cannot unnecessarily restrict the initiative
privilege.6 In the same vein, this Court cannot unnecessarily and
unreasonably restrain the people's right to directly propose changes to
the Constitution by declaring a law inadequate simply for lack of a sub-
heading and other grammatical but insignificant omissions. Otherwise,
the constitutional intent to empower the people will be severely
emasculated, if not rendered illusory.
People's Right and Power to Propose Changes to the Constitution
Directly Should not be Unreasonably Curtailed
If Congress and a constitutional convention, both of which are mere
representative bodies, can propose changes to the Constitution, there
is no reason why the supreme body politic itself – the people – may not
do so directly.
Resort to initiative to amend the constitution or enact a statute is an
exercise of "direct democracy" as opposed to "representative
democracy." The system of initiative allows citizens to directly propose
constitutional amendments for the general electorate to adopt or reject
at the polls, particularly in a plebiscite. While representative
government was envisioned to "refine and enlarge the public views, by
passing them through the medium of a chosen body of citizens, whose
wisdom may best discern the true interest of their country, and whose
patriotism and love of justice will be least likely to sacrifice it to
temporary or partial considerations,"7 the exercise of "direct
democracy" through initiative reserves direct lawmaking power to the
people by providing them a method to make new laws via the
constitution, or alternatively by enacting statutes.8 Efforts of the
represented to control their representatives through initiative have
been described as curing the problems of democracy with more
democracy.9
258
The Constitution celebrates the sovereign right of the people and
declares that "sovereignty resides in the people and all government
authority emanates from them."10 Unless the present petition is
granted, this constitutional principle will be nothing but empty rhetoric,
devoid of substance for those whom it seeks to empower.
The right of the people to pass legislation and to introduce changes to
the Constitution is a fundamental right and must be jealously
guarded.11 The people should be allowed to directly seek redress of
the problems of society and representative democracy with the
constitutional tools they have reserved for their use alone.
Accordingly, I vote to GRANT the petition in G.R. No. 174513.
RENATO C. CORONA
Associate Justice
____________________
EN BANC
G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952
REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP),
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA,
SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE
TRANSPORT AND GENERAL WORKERS ORGANIZATION
(PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE
VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL
L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and
CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC.,
ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA,
KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM,
MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY,
ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN
JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD
PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA,
ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI
ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO,
MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T.
VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG,
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and
SENATORS SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL,
LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S.
LIM and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and
PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE
PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE
ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A.
LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG,
SENATE OF THE PHILIPPINES, Represented by its President,
MANUEL VILLAR, JR., Oppositors-Intervenors;
G.R. No. 174299 entitled
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.
Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION
Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER,
RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
TINGA, J:
I join in full the opinion of Senior Associate Justice Puno. Its enviable
sang-froid, inimitable lucidity, and luminous scholarship are all so
characteristic of the author that it is hardly a waste of pen and ink to
write separately if only to express my deep admiration for his
disquisition. It is compelling because it derives from the fundamental
democratic ordinance that sovereignty resides in the people, and it
seeks to effectuate that principle through the actual empowerment of
the sovereign people. Justice Puno's opinion will in the short term
engender reactions on its impact on present attempts to amend the
Constitution, but once the political passion of the times have been
shorn, it will endure as an unequivocal message to the taongbayan that
they are to be trusted to chart the course of their future.
Nothing that I inscribe will improve on Justice Puno's opinion. I only
write separately to highlight a few other points which also inform my
vote to grant the petitions.
I.
I agree with Justice Puno that Santiago v. COMELEC1 and PIRMA v.
COMELEC2 had not acquired value as precedent and should be
reversed in any case. I add that the Court has long been mindful of the
rule that it necessitates a majority, and not merely a plurality, in order
that a decision can stand as precedent. That principle has informed the
members of this Court as they deliberated and voted upon contentious
petitions, even if this consideration is not ultimately reflected on the
final draft released for promulgation.
The curious twist to Santiago and PIRMA is that for all the denigration
heaped upon Rep. Act No. 6735 in those cases, the Court did not
invalidate any provision of the statute. All the Court said then was that
the law was "inadequate". Since this "inadequate" law was not
annulled by the Court, or repealed by Congress, it remained part of the
statute books.3
I maintain that even if Rep. Act No. 6735 is truly "inadequate", the
Court in Santiago should not have simply let the insufficiency stand
given that it was not minded to invalidate the law itself. Article 9 of the
Civil Code provides that "[n]o judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of the
laws."4 As explained by the Court recently in Reyes v. Lim,5 "[Article 9]
calls for the application of equity, which[, in the revered Justice
Cardozo's words,] 'fills the open spaces in the law.'"6 Certainly, any
court that refuses to rule on an action premised on Rep. Act No. 6735
on the ground that the law is "inadequate" would have been found in
grave abuse of discretion. The previous failure by the Court to "fill the
open spaces" in Santiago further highlights that decision's status as an
unfortunate aberration.
I am mindful of the need to respect stare decisis, to the point of having
recently decried a majority ruling that was clearly minded to reverse
several precedents but refused to explicitly say so.7 Yet the principle is
not immutable.8 The passionate words of Chief Justice Panganiban in
Osmeña v. COMELEC9 bear quoting:
Before I close, a word about stare decisis. In the present case, the
Court is maintaining the ad ban to be consistent with its previous
holding in NPC vs. Comelec. Thus, respondent urges reverence for the
stability of judicial doctrines. I submit, however, that more important
than consistency and stability are the verity, integrity and correctness
of jurisprudence. As Dean Roscoe Pound explains, "Law must be
stable but it cannot stand still." Verily, it must correct itself and move in
cadence with the march of the electronic age. Error and illogic should
not be perpetuated. After all, the Supreme Court, in many cases, has
deviated from stare decisis and reversed previous doctrines and
decisions.10 It should do no less in the present case.11
Santiago established a tenet that the Supreme Court may affirm a law
as constitutional, yet declare its provisions as inadequate to
accomplish the legislative purpose, then barred the enforcement of the
law. That ruling is erroneous, illogical, and should not be perpetuated.
II.
Following Justice Puno's clear demonstration why Santiago should not
be respected as precedent, I agree that the COMELEC's failure to take
cognizance of the petitions as mandated by Rep. Act No. 6735
constitutes grave abuse of discretion correctible through the petitions
before this Court.
The Court has consistently held in cases such as Abes v.
COMELEC12, Sanchez v. COMELEC13, and Sambarani v.
COMELEC14 that "the functions of the COMELEC under the
Constitution are essentially executive and administrative in nature".15
More pertinently, in Buac v. COMELEC16, the Court held that the
jurisdiction of the COMELEC relative to the enforcement and
administration of a law relative to a plebiscite fell under the jurisdiction
of the poll body under its constitutional mandate "to enforce and
administer all laws and regulations relative to the conduct of a xxx
plebiscite".17
Rep. Act No. 6735 is a law relative to the conduct of a plebiscite. The
primary task of the COMELEC under Rep. Act No. 6735 is to enforce
and administer the said law, functions that are essentially executive
and administrative in nature. Even the subsequent duty of the
COMELEC of determining the sufficiency of the petitions after they
have been filed is administrative in character. By any measure, the
COMELEC's failure to perform its executive and administrative
functions under Rep. Act No. 6735 constitutes grave abuse of
discretion.
III.
It has been argued that the subject petitions for initiative are barred
under Republic Act No. 6735 as they allegedly embrace more than one
subject. Section 10 of Rep. Act No. 6735 classifies as a "prohibited
measure," a petition submitted to the electorate that embraces more
than one subject.18 On this point, reliance is apparently placed on the
array of provisions which are to be affected by the amendments
proposed in the initiative petition.
259
Section 10 of Rep. Act No. 6735 is a reflection of the long-enshrined
constitutional principle that the laws passed by Congress "shall
embrace only one subject which shall be expressed in the title
thereof".19 The one-subject requirement under the Constitution is
satisfied if all the parts of the statute are related, and are germane to
the subject matter expressed in the title, or as long as they are not
inconsistent with or foreign to the general subject and title.20 An act
having a single general subject, indicated in the title, may contain any
number of provisions, no matter how diverse they may be, so long as
they are not inconsistent with or foreign to the general subject, and
may be considered in furtherance of such subject by providing for the
method and means of carrying out the general object.21
The precedents governing the one-subject, one-title rule under the
Constitution should apply as well in the interpretation of Section 10 of
Rep. Act No. 6735. For as long as it can be established that an
initiative petition embraces a single general subject, the petition may
be allowed no matter the number of constitutional provisions proposed
for amendment if the amendments are germane to the subject of the
petition.
Both the Sigaw ng Bayan and the Lambino initiative petitions expressly
propose the changing of the form of government from bicameral-
presidential to unicameral-parliamentary. Such a proposal may strike
as comprehensive, necessitating as it will the reorganization of the
executive and legislative branches of government, nevertheless it
ineluctably encompasses only a single general subject still.
The 1987 Constitution (or any constitution for that matter) is
susceptible to division into several general spheres. To cite the
broadest of these spheres by way of example, Article III enumerates
the guaranteed rights of the people under the Bill of Rights; Articles VI,
VII and VIII provide for the organizational structure of government;
while Articles II, XII, XIII & XIV, XV and XVI enunciate policy principles
of the State. What would clearly be prohibited under Section 10 of Rep.
Act No. 6735 is an initiative petition that seeks to amend provisions
which do not belong to the same sphere. For example, had a single
initiative petition sought not only to change the form of government
from presidential to parliamentary but also to amend the Bill of Rights,
said petition would arguably have been barred under Section 10, as
that petition ostensibly embraces more than one subject, with each
subject bearing no functional relation to the other. But that is not the
case with the present initiative petitions.
Neither can it be argued that the initiative petitions embrace more than
one subject since the proposed amendments seek to affect two
separate branches of government. The very purpose of the initiative
petitions is to fuse the powers of the executive and legislative branches
of government; hence, the amendments intended to effect such
general intent necessarily affects the two branches. If it required that to
propose a shift in government from presidential to parliamentary, the
amendments to Article VII (Executive Branch) have to be segregated to
a different petition from that which would propose amendments to
Article VI (Legislative Branch), then the result would be two initiative
petitions ─ both subject to separate authentications, consideration and
even plebiscites, all to effect one general proposition. This scenario,
which entertains the possibility that one petition would ultimately fail
while the other succeeds, could thus allow for the risk that the
executive branch could be abolished without transferring executive
power to the legislative branch. An absurd result, indeed.
I am not even entirely comfortable with the theoretical underpinnings of
Section 10. The Constitution indubitably grants the people the right to
seek amendment of the charter through initiative, and mandates
Congress to "provide for the implementation of the exercise of this
right." In doing so, Congress may not restrict the right to initiative on
grounds that are not provided for in the Constitution. If for example the
implementing law also provides that certain provisions of the
Constitution may not be amended through initiative, that prohibition
should not be sustained. Congress is tasked with the implementation,
and not the restriction of the right to initiative.
The one-subject requirement under Section 10 is not provided for as a
bar to amendment under the Constitution. Arguments can be supplied
for the merit of such a requirement, since it would afford a measure of
orderliness when the vital question of amending the Constitution
arises. The one-subject requirement does allow the voters focus when
deliberating whether or not to vote for the amendments. These factors
of desirability nonetheless fail to detract from the fact that the one-
subject requirement imposes an additional restriction on the right to
initiative not contemplated by the Constitution. Short of invalidating the
requirement, a better course of action would be to insist upon its liberal
interpretation. After all, the Court has consistently adhered to a liberal
interpretation of the one-subject, one-title rule.22 There is no cause to
adopt a stricter interpretative rule with regard to the one-subject rule
under Section 10 of Rep. Act No. 6735.
IV.
During the hearing on the petitions, the argument was raised that
provisions of the Constitution amended through initiative would not
have the benefit of a reference source from the record of a deliberative
body such as Congress or a constitutional convention. It was submitted
that this consideration influenced the Constitutional Commission as it
drafted Section 2, Article XVII, which expressly provided that only
amendments, and not revisions, may be the subject of initiative
petitions.
This argument clearly proceeds from a premise that accords supreme
value to the record of deliberations of a constitutional convention or
commission in the interpretation of the charter. Yet if the absence of a
record of deliberations stands as so serious a flaw as to invalidate or
constrict processes which change a constitution or its provisions, then
the entire initiative process authorized by the Constitution should be
scarlet-marked as well.
Even if this position can be given any weight in the consideration of
these petitions, I would like to point out that resort to the records of
deliberations is only one of many aids to constitutional construction.
For one, it should be abhorred if the provision under study is itself
clear, plain, and free from ambiguity. As the Court held in Civil Liberties
Union v. Executive Secretary:23
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the
reason and purpose of the resulting Constitution, resort thereto may be
had only when other guides fail as said proceedings are powerless to
vary the terms of the Constitution when the meaning is clear. Debates
in the constitutional convention "are of value as showing the views of
the individual members, and as indicating the reasons for their votes,
but they give us no light as to the views of the large majority who did
not talk . . . We think it safer to construe the constitution from what
appears upon its face."24
Even if there is need to refer to extrinsic sources in aid of constitutional
interpretation, the constitutional record does not provide the exclusive
or definitive answer on how to interpret the provision. The intent of a
constitutional convention is not controlling by itself, and while the
historical discussion on the floor of the constitutional convention is
valuable, it is not necessarily decisive. The Court has even held in
Vera v. Avelino25 that "the proceedings of the [constitutional]
convention are less conclusive of the proper construction of the
fundamental law than are legislative proceedings of the proper
construction of a statute, since in the latter case it is the intent of the
legislature that courts seek, while in the former courts are endeavoring
to arrive at the intent of the people through the discussions and
deliberations of their representatives."26 The proper interpretation of a
constitution depends more on how it was understood by the people
adopting it than the framers' understanding thereof.27
If there is fear in the absence of a constitutional record as guide for
interpretation of any amendments adopted via initiative, such absence
would not preclude the courts from interpreting such amendments in a
manner consistent with how courts generally construe the Constitution.
For example, reliance will be placed on the other provisions of the
Constitution to arrive at a harmonized and holistic constitutional
framework. The constitutional record is hardly the Rosetta Stone that
unlocks the meaning of the Constitution.
V.
I fully agree with Justice Puno that all issues relating to the sufficiency
of the initiative petitions should be remanded to the COMELEC. Rep.
Act No. 6735 clearly reposes on the COMELEC the task of determining
the sufficiency of the petitions, including the ascertainment of whether
twelve percent (12%) of all registered voters, including three percent
(3%) of registered voters in every legislative district have indeed signed
the initiative petitions.28 It should be remembered that the COMELEC
had dismissed the initiative petitions outright, and had yet to undertake
the determination of sufficiency as required by law.
It has been suggested to the end of leading the Court to stifle the
initiative petitions that the Court may at this juncture pronounce the
initiative petitions as insufficient. The derivation of the factual
predicates leading to the suggestion is uncertain, considering that the
trier of facts, the COMELEC in this instance, has yet to undertake the
necessary determination. Still, the premise has been floated that
petitioners have made sufficient admissions before this Court that
purportedly established the petitions are insufficient.
That premise is highly dubitable. Yet the more fundamental question
that we should ask, I submit, is whether it serves well on the Court to
usurp trier of facts even before the latter exercises its functions? If the
Court, at this stage, were to declare the petitions as insufficient, it
would be akin to the Court pronouncing an accused as guilty even
before the lower court trial had began.
Matugas v. COMELEC29 inveighs against the propriety of the Court
uncharacteristically assuming the role of trier of facts, and resolving
factual questions not previously adjudicated by the lower courts or
tribunals:
[P]etitioner in this case cannot "enervate" the COMELEC's findings by
introducing new evidence before this Court, which in any case is not a
trier of facts, and then ask it to substitute its own judgment and
discretion for that of the COMELEC.
260
The rule in appellate procedure is that a factual question may not be
raised for the first time on appeal, and documents forming no part of
the proofs before the appellate court will not be considered in disposing
of the issues of an action. This is true whether the decision elevated for
review originated from a regular court or an administrative agency or
quasi-judicial body, and whether it was rendered in a civil case, a
special proceeding, or a criminal case. Piecemeal presentation of
evidence is simply not in accord with orderly justice.30
Any present determination by the Court on the sufficiency of the
petitions constitutes in effect a trial de novo, the Justices of the
Supreme Court virtually descending to the level of trial court judges.
This is an unbecoming recourse, and it simply is not done.
VI.
The worst position this Court could find itself in is to acquiesce to a
plea that it make the choice whether to amend the Constitution or not.
This is a matter which should not be left to fifteen magistrates who
have not been elected by the people to make the choice for them.
A vote to grant the petitions is not a vote to amend the 1987
Constitution. It is merely a vote to allow the people to directly exercise
that option. In fact, the position of Justice Puno which I share would not
even guarantee that the Lambino and Sigaw ng Bayan initiative
petitions would be submitted to the people in a referendum. The
COMELEC will still have to determine the sufficiency of the petition.
Among the questions which still have to be determined by the poll body
in considering the sufficiency of the petitions is whether twelve percent
(12%) of all registered voters nationwide, including three percent (3%)
of registered voters in every legislative district, have indeed signed the
initiative petitions.31
And even should the COMELEC find the initiative petitions sufficient,
the matter of whether the Constitution should be amended would still
depend on the choice of the electorate. The oppositors are clearly
queasy about some of the amendments proposed, or the imputed
motives behind the amendments. A referendum, should the COMELEC
find the petitions as sufficient, would allow them to convey their
uneasiness to the public at large, as well as for the proponents of the
amendment to defend their proposal. The campaign period alone
would allow the public to be involved in the significant deliberation on
the course our nation should take, with the ensuing net benefit of a
more informed, more politically aware populace. And of course, the
choice on whether the Constitution should be amended would lie
directly with the people. The initiative process involves participatory
democracy at its most elemental; wherein the consequential debate
would not be confined to the august halls of Congress or the hallowed
chambers of this Court, as it would spill over to the public squares and
town halls, the academic yards and the Internet blogosphere, the
dining areas in the homes of the affluent and the impoverished alike.
The prospect of informed and widespread discussion on constitutional
change engaged in by a people who are actually empowered in having
a say whether these changes should be enacted, gives fruition to the
original vision of pure democracy, as formulated in Athens two and a
half millennia ago. The great hero of Athenian democracy, Pericles,
was recorded as saying in his famed Funeral Oration, "We differ from
other states in regarding the man who keeps aloof from public life not
as 'private' but as useless; we decide or debate, carefully and in
person all matters of policy, and we hold, not that words and deeds go
ill together, but that acts are foredoomed to failure when undertaken
undiscussed."32
Unfortunately, given the highly politicized charge of the times, it has
been peddled that an act or vote that assists the initiative process is
one for the willful extinction of democracy or democratic institutions.
Such a consideration should of course properly play its course in the
public debates and deliberations attendant to the initiative process. Yet
as a result of the harum-scarum, the temptation lies heavy for a
member of this Court perturbed with the prospect of constitutional
change to relieve those anxieties by simply voting to enjoin any legal
procedure that initiates the amendment or revision of the fundamental
law, even at the expense of the people's will or what the Constitution
allows. A vote so oriented takes the conservative path of least
resistance, even as it may gain the admiration of those who do not
want to see the Constitution amended.
Still, the biases we should enforce as magistrates are those of the
Constitution and the elements of democracy on which our rule of law is
founded. Direct democracy, as embodied in the initiative process, is
but a culmination of the evolution over the centuries of democratic
rights of choice and self-governance. The reemergence of the Athenian
democratic ideal after centuries of tyrannical rules arrived very slowly,
the benefits parceled out at first only to favored classes. The Magna
Carta granted limited rights to self-determination and self-governance
only to a few English nobles; the American Constitution was originally
intended to give a meaningful voice only to free men, mostly
Caucasian, who met the property-holding requirements set by the
states for voting. Yet even the very idea of popular voting, limited as it
may have already been within the first few years of the American
Union, met resistance from no less a revered figure as Alexander
Hamilton, to whom the progressive historian Howard Zinn attributes
these disconcerting words:
The voice of the people has been said to be the voice of God; and
however generally this maxim has been quoted and believed, it is not
true in fact. The people are turbulent and changing; they seldom judge
or determine right. Give therefore to the first class a distinct permanent
share in the government… Can a democratic assembly who annually
revolve in the mass of the people be supposed steadily to pursue the
public good? Nothing but a permanent body can check the imprudence
of democracy…33
This utterly paternalistic and bigoted view has not survived into the
present age of modern democracy where a person's poverty, color, or
gender no longer impedes the exercise of full democratic rights. Yet a
democracy that merely guarantees its citizens the right to live their
lives freely is incomplete if there is no corresponding allowance for a
means by which the people have a direct choice in determining their
country's direction. Initiative as a mode of amending a constitution may
seem incompatible with representative democracy, yet it embodies an
even purer form of democracy. Initiative, which our 1987 Constitution
saw fit to grant to the people, is a progressive measure that is but a
continuation of the line of evolution of the democratic ideal.
By allowing the sovereign people to directly propose and enact
constitutional amendments, the initiative process should be
acknowledged as the purest implement of democratic rule under law.
This right granted to over sixty million Filipinos cannot be denied by the
votes of less than eight magistrates for reasons that bear no cogitation
on the Constitution.
I VOTE to GRANT the petitions.
DANTE O. TINGA
Associate Justice
____________________
EN BANC
G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952
REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP),
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA,
SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE
TRANSPORT AND GENERAL WORKERS ORGANIZATION
(PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE
VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL
L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and
CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC.,
ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA,
KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM,
MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY,
ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN
JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD
PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA,
ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI
ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO,
MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T.
VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG,
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and
SENATORS SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL,
LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S.
LIM and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and
PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE
PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE
ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A.
LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG,
SENATE OF THE PHILIPPINES, Represented by its President,
MANUEL VILLAR, JR., Oppositors-Intervenors;
G.R. No. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.
Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION
Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER,
RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents.
x ---------------------------------------------------------------------------------------- x
DISSENTING OPINION
CHICO-NAZARIO, J.:
261
"The people made the constitution, and the people can unmake it. It is
the creature of their will, and lives only by their will. But this supreme
and irresistible power to make or unmake, resides only in the whole
body of the people; not in any subdivision of them."
-- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264, 389, 5 L
ed. 257, 287.
I express my concurrence in the discussions and conclusions
presented in the persuasive and erudite dissent of Justice Reynato S.
Puno. However, I make some additional observations in connection
with my concurrence.
While it is but proper to accord great respect and reverence to the
Philippine Constitution of 1987 for being the supreme law of the land,
we should not lose sight of the truth that there is an ultimate authority
to which the Constitution is also subordinate – the will of the people.
No less than its very first paragraph, the Preamble,1 expressly
recognizes that the Constitution came to be because it was ordained
and promulgated by the sovereign Filipino people. It is a principle
reiterated yet again in Article II, Section 1, of the Constitution, which
explicitly declares that "[t]he Philippines is a democratic and republican
State. Sovereignty resides in the people and all government authority
emanates from them." Thus, the resolution of the issues and
controversies raised by the instant Petition should be guided
accordingly by the foregoing principle.
If the Constitution is the expression of the will of the sovereign people,
then, in the event that the people change their will, so must the
Constitution be revised or amended to reflect such change.
Resultantly, the right to revise or amend the Constitution inherently
resides in the sovereign people whose will it is supposed to express
and embody. The Constitution itself, under Article XVII, provides for the
means by which the revision or amendment of the Constitution may be
proposed and ratified.
Under Section 1 of the said Article, proposals to amend or revise the
Constitution may be made (a) by Congress, upon a vote of three-
fourths of all its Members, or (b) by constitutional convention. The
Congress and the constitutional convention possess the power to
propose amendments to, or revisions of, the Constitution not simply
because the Constitution so provides, but because the sovereign
people had chosen to delegate their inherent right to make such
proposals to their representatives either through Congress or through a
constitutional convention.
On the other hand, the sovereign people, well-inspired and greatly
empowered by the People Power Revolution of 1986, reserved to
themselves the right to directly propose amendments to the
Constitution through initiative, to wit –
SEC. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of
this right.2
The afore-quoted section does not confer on the Filipino people the
right to amend the Constitution because, as previously discussed, such
right is inherent in them. The section only reduces into writing this right
to initiate amendments to the Constitution where they collectively and
willfully agreed in the manner by which they shall exercise this right: (a)
through the filing of a petition; (b) supported by at least twelve percent
(12%) of the total number of registered voters nationwide; (c) with each
legislative district represented by at least three percent (3%) of the
registered voters therein; (d) subject to the limitation that no such
petition may be filed within five years after the ratification of the
Constitution, and not oftener than once every five years thereafter; and
(e) a delegation to Congress of the authority to provide the formal
requirements and other details for the implementation of the right.
It is my earnest opinion that the right of the sovereign people to directly
propose amendments to the Constitution through initiative is more
superior than the power they delegated to Congress or to a
constitutional convention to amend or revise the Constitution. The
initiative process gives the sovereign people the voice to express their
collective will, and when the people speak, we must be ready to listen.
Article XVII, Section 2 of the Constitution recognizes and guarantees
the sovereign people's right to initiative, rather than limits it. The
enabling law which Congress has been tasked to enact must give life
to the said provision and make the exercise of the right to initiative
possible, not regulate, limit, or restrict it in any way that would render
the people's option of resorting to initiative to amend the Constitution
more stringent, difficult, and less feasible, as compared to the other
constitutional means to amend or revise the Constitution. In fact, it is
worth recalling that under Article VI, Section 1 of the Constitution, the
legislative power of Congress is limited to the extent reserved to the
people by the provisions on initiative and referendum.

It is with this frame of mind that I review the issues raised in the instant
Petitions, and which has led me to the conclusions, in support of the
dissent of Justice Puno, that (a) The Commission on Election
(COMELEC) had indeed committed grave abuse of discretion in
summarily dismissing the petition for initiative to amend the
Constitution filed by herein petitioners Raul L. Lambino and Erico B.
Aumentado; (b) The Court should revisit the pronouncements it made
in Santiago v. Commission on Elections;3 (c) It is the sovereign
people's inherent right to propose changes to the Constitution,
regardless of whether they constitute merely amendments or a total
revision thereof; and (d) The COMELEC should take cognizance of
Lambino and Aumentado's petition for initiative and, in the exercise of
its jurisdiction, determine the factual issues raised by the oppositors
before this Court.
I Neither can the COMELEC dismiss Lambino and Aumentado's petition
The COMELEC had indeed committed grave abuse of discretion when
it summarily dismissed Lambino and Aumentado's petition for initiative
entirely on the basis of the Santiago case which, allegedly,
permanently enjoined it from entertaining or taking cognizance of any
petition for initiative to amend the Constitution in the absence of a
sufficient law.
After a careful reading, however, of the Santiago case, I believe in
earnest that the permanent injunction actually issued by this Court
against the COMELEC pertains only to the petition for initiative filed by
Jesus S. Delfin, and not to all subsequent petitions for initiative to
amend the Constitution.
The Conclusion4 in the majority opinion in the Santiago case reads –
CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation
of the system.
We feel, however, that the system of initiative to propose amendments
to the Constitution should no longer be kept in the cold; it should be
given flesh and blood, energy and strength. Congress should not tarry
any longer in complying with the constitutional mandate to provide for
the implementation of the right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of
initiative on amendments to the Constitution, and to have failed to
provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the
Commission on Elections prescribing rules and regulations on the
conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the
DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is
made permanent as against the Commission on Elections, but is
LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
It is clear from the fallo, as it is reproduced above, that the Court made
permanent the Temporary Restraining Order (TRO) it issued on 18
December 1996 against the COMELEC. The said TRO enjoined the
COMELEC from proceeding with the Delfin Petition, and Alberto and
Carmen Pedrosa from conducting a signature drive for people's
initiative.5 It was this restraining order, more particularly the portion
thereof referring to the Delfin Petition, which was expressly made
permanent by the Court. It would seem to me that the COMELEC and
all other oppositors to Lambino and Aumentado's petition for initiative
gave unwarranted significance and weight to the first paragraph of the
Conclusion in the Santiago case. The first and second paragraphs of
the Conclusion, preceding the dispositive portion, merely express the
opinion of the ponente; while the definite orders of the Court for
implementation are found in the dispositive portion.
We have previously held that –
The dispositive portion or the fallo is what actually constitutes the
resolution of the court and which is the subject of execution, although
the other parts of the decision may be resorted to in order to determine
the ratio decidendi for such a resolution. Where there is conflict
between the dispositive part and the opinion of the court contained in
the text of the decision, the former must prevail over the latter on the
theory that the dispositive portion is the final order while the opinion is
merely a statement ordering nothing. Hence execution must conform
262
more particularly to that ordained or decreed in the dispositive portion
of the decision.6
Is there a conflict between the first paragraph of the Conclusion and
the dispositive portion of the Santiago case? Apparently, there is. The
first paragraph of the Conclusion states that the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until the
enactment of a valid law. On the other hand, the fallo only makes
permanent the TRO7 against COMELEC enjoining it from proceeding
with the Delfin Petition. While the permanent injunction contemplated in
the Conclusion encompasses all petitions for initiative on amendments
to the Constitution, the fallo is expressly limited to the Delfin Petition.
To resolve the conflict, the final order of the Court as it is stated in the
dispositive portion or the fallo should be controlling.
for initiative on the basis of this Court's Resolution, dated 23
September 1997, in the case of People's Initiative for Reform,
Modernization and Action (PIRMA) v. The Commission on Elections, et
al.8 The Court therein found that the COMELEC did not commit grave
abuse of discretion in dismissing the PIRMA Petition for initiative to
amend the Constitution for it only complied with the Decision in the
Santiago case.
It is only proper that the Santiago case should also bar the PIRMA
Petition on the basis of res judicata because PIRMA participated in the
proceedings of the said case, and had knowledge of and, thus, must
be bound by the judgment of the Court therein. As explained by former
Chief Justice Hilario G. Davide, Jr. in his separate opinion to the
Resolution in the PIRMA case –
First, it is barred by res judicata. No one aware of the pleadings filed
here and in Santiago v. COMELEC (G.R. No. 127325, 19 March 1997)
may plead ignorance of the fact that the former is substantially identical
to the latter, except for the reversal of the roles played by the principal
parties and inclusion of additional, yet not indispensable, parties in the
present petition. But plainly, the same issues and reliefs are raised and
prayed for in both cases.
The principal petitioner here is the PEOPLE'S INITIATIVE FOR
REFORM, MODERNIZATION, AND ACTION (PIRMA) and Spouses
ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-
described as "a non-stock, non-profit organization duly organized and
existing under Philippine laws with office address at Suite 403, Fedman
Suites, 199 Salcedo Street, Legaspi Village, Makati City," with
"ALBERTO PEDROSA and CARMEN PEDROSA" as among its
"officers." In Santiago, the PEDROSAS were made respondents as
founding members of PIRMA which, as alleged in the body of the
petition therein, "proposes to undertake the signature drive for a
people's initiative to amend the Constitution." In Santiago then, the
PEDROSAS were sued in their capacity as founding members of
PIRMA.
The decision in Santiago specifically declared that PIRMA was duly
represented at the hearing of the Delfin petition in the COMELEC. In
short, PIRMA was intervenor-petitioner therein. Delfin alleged in his
petition that he was a founding member of the Movement for People's
Initiative, and under footnote no. 6 of the decision, it was noted that
said movement was "[l]ater identified as the People's Initiative for
Reforms, Modernization and Action, or PIRMA for brevity." In their
Comment to the petition in Santiago, the PEDROSA'S did not deny that
they were founding members of PIRMA, and by their arguments,
demonstrated beyond a shadow of a doubt that they had joined Delfin
or his cause.
No amount of semantics may then shield herein petitioners PIRMA and
the PEDROSAS, as well as the others joining them, from the operation
of the principle of res judicata, which needs no further elaboration.9
While the Santiago case bars the PIRMA case because of res judicata,
the same cannot be said to the Petition at bar. Res judicata is an
absolute bar to a subsequent action for the same cause; and its
requisites are: (a) the former judgment or order must be final; (b) the
judgment or order must be one on the merits; (c) it must have been
rendered by a court having jurisdiction over the subject matter and
parties; and (d) there must be between the first and second actions,
identity of parties, of subject matter and of causes of action.10
Even though it is conceded that the first three requisites are present
herein, the last has not been complied with. Undoubtedly, the Santiago
case and the present Petition involve different parties, subject matter,
and causes of action, and the former should not bar the latter.
In the Santiago case, the petition for initiative to amend the
Constitution was filed by Delfin alone. His petition does not qualify as
the initiatory pleading over which the COMELEC can acquire
jurisdiction, being unsupported by the required number of registered
voters, and actually imposing upon the COMELEC the task of
gathering the voters' signatures. In the case before us, the petition for
initiative to amend the Constitution was filed by Lambino and
Aumentado, on behalf of the 6.3 million registered voters who affixed
their signatures on the signature sheets attached thereto. Their petition
prays that the COMELEC issue an Order –
1. Finding the petition to be sufficient pursuant to Section 4, Article XVII
of the 1987 Constitution;
2. Directing the publication of the petition in Filipino and English at
least twice in newspapers of general and local circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later than
ninety days after the Certification by the COMELEC of the sufficiency
of the petition, to allow the Filipino people to express their sovereign
will on the proposition.
Although both cases involve the right of the people to initiate
amendments to the Constitution, the personalities concerned and the
other factual circumstances attendant in the two cases differ. Also
dissimilar are the particular prayer and reliefs sought by the parties
from the COMELEC, as well as from this Court. For these reasons, I
find that the COMELEC acted with grave abuse of discretion when it
summarily dismissed the petition for initiative filed by Lambino and
Aumentado. It behooves the COMELEC to accord due course to a
petition which on its face complies with the rudiments of the law.
COMELEC was openly negligent in summarily dismissing the Lambino
and Aumentado petition. The haste by which the instant Petition was
struck down is characteristic of bad faith, which, to my mind, is a patent
and gross evasion of COMELEC's positive duty. It has so obviously
copped out of its duty and responsibility to determine the sufficiency
thereof and sought protection and justification for its craven decision in
the supposed permanent injunction issued against it by the Court in the
Santiago case. The COMELEC had seemingly expanded the scope
and application of the said permanent injunction, reading into it more
than what it actually states, which is surprising, considering that the
Chairman and majority of the members of COMELEC are lawyers who
should be able to understand and appreciate, more than a lay person,
the legal consequences and intricacies of the pronouncements made
by the Court in the Santiago case and the permanent injunction issued
therein.
No less than the Constitution itself, under the second paragraph of
Article XVII, Section 4, imposes upon the COMELEC the mandate to
set a date for plebiscite after a positive determination of the sufficiency
of a petition for initiative on amendments to the Constitution, viz –
SEC. 4. x x x
Any amendment under Section 2 hereof shall be valid when ratified by
a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the certification
by the Commission on Elections of the sufficiency of the petition.
As a rule, the word "shall" commonly denotes an imperative obligation
and is inconsistent with the idea of discretion, and that the presumption
is that the word "shall" when used, is mandatory.11 Under the above-
quoted constitutional provision, it is the mandatory or imperative
obligation of the COMELEC to (a) determine the sufficiency of the
petition for initiative on amendments to the Constitution and issue a
certification on its findings; and (b) in case such petition is found to be
sufficient, to set the date for the plebiscite on the proposed
amendments not earlier than 60 days nor later than 90 days after its
certification. The COMELEC should not be allowed to shun its
constitutional mandate under the second paragraph of Article XVII,
Section 4, through the summary dismissal of the petition for initiative
filed by Lambino and Aumentado, when such petition is supported by
6.3 million signatures of registered voters. Should all of these
signatures be authentic and representative of the required percentages
of registered voters for every legislative district and the whole nation,
then the initiative is a true and legitimate expression of the will of the
people to amend the Constitution, and COMELEC had caused them
grave injustice by silencing their voice based on a patently inapplicable
permanent injunction.
II
We should likewise take the opportunity to revisit the pronouncements
made by the Court in its Decision in the Santiago case, especially as
regards the supposed insufficiency or inadequacy of Republic Act No.
6735 as the enabling law for the implementation of the people's right to
initiative on amendments to the Constitution.
The declaration of the Court that Republic Act No. 6735 is insufficient
or inadequate actually gave rise to more questions rather than
answers, due to the fact that there has never been a judicial precedent
wherein the Court invalidated a law for insufficiency or inadequacy.
The confusion over such a declaration thereby impelled former Chief
Justice Davide, Jr., the ponente in the Santiago case, to provide the
following clarification in his separate opinion to the Resolution in the
PIRMA case, thus –
Simply put, Santiago did, in reality, declare as unconstitutional that
portion of R.A. No. 6735 relating to Constitutional initiatives for failure
to comply with the "completeness and sufficient standard tests" with
respect to permissible delegation of legislative power or subordinate
263
legislation. However petitioners attempt to twist the language in
Santiago, the conclusion is inevitable; the portion of R.A. No. 6735 was
held to be unconstitutional.
It is important to note, however, that while the Decision in the Santiago
case pronounced repeatedly that Republic Act No. 6735 was
insufficient and inadequate, there is no categorical declaration therein
that the said statute was unconstitutional. The express finding that
Republic Act No. 6735 is unconstitutional can only be found in the
separate opinion of former Chief Justice Davide to the Resolution in
the PIRMA case, which was not concurred in by the other members of
the Court.
Even assuming arguendo that the declaration in the Santiago case,
that Republic Act No. 6735 is insufficient and inadequate, is already
tantamount to a declaration that the statute is unconstitutional, it was
rendered in violation of established rules in statutory construction,
which state that –
[A]ll presumptions are indulged in favor of constitutionality; one who
attacks a statute, alleging unconstitutionality must prove its invalidity
beyond a reasonable doubt (Victoriano v. Elizalde Rope Workers'
Union, 59 SCRA 54 [19741). In fact, this Court does not decide
questions of a constitutional nature unless that question is properly
raised and presented in appropriate cases and is necessary to a
determination of the case, i.e., the issue of constitutionality must be lis
mota presented (Tropical Homes v. National Housing Authority, 152
SCRA 540 [1987]).
First, the Court, in the Santiago case, could have very well avoided the
issue of constitutionality of Republic Act No. 6735 by ordering the
COMELEC to dismiss the Delfin petition for the simple reason that it
does not constitute an initiatory pleading over which the COMELEC
could acquire jurisdiction. And second, the unconstitutionality of
Republic Act No. 6735 has not been adequately shown. It was by and
large merely inferred or deduced from the way Republic Act No. 6735
was worded and the provisions thereof arranged and organized by
Congress. The dissenting opinions rendered by several Justices in the
Santiago case reveal the other side to the argument, adopting the
more liberal interpretation that would allow the Court to sustain the
constitutionality of Republic Act No. 6735. It would seem that the
majority in the Santiago case failed to heed the rule that all
presumptions should be resolved in favor of the constitutionality of the
statute.
The Court, acting en banc on the Petition at bar, can revisit its Decision
in the Santiago case and again open to judicial review the
constitutionality of Republic Act No. 6735; in which case, I shall cast
my vote in favor of its constitutionality, having satisfied the
completeness and sufficiency of standards tests for the valid
delegation of legislative power. I fully agree in the conclusion made by
Justice Puno on this matter in his dissenting opinion12 in the Santiago
case, that reads –
R.A. No. 6735 sufficiently states the policy and the standards to guide
the COMELEC in promulgating the law's implementing rules and
regulations of the law. As aforestated, Section 2 spells out the policy of
the law; viz: "The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in
part, the Constitution, laws, ordinances, or resolutions passed by any
legislative body upon compliance with the requirements of this Act is
hereby affirmed, recognized and guaranteed." Spread out all over R.A.
No. 6735 are the standards to canalize the delegated power to the
COMELEC to promulgate rules and regulations from overflowing.
Thus, the law states the number of signatures necessary to start a
people's initiative, directs how initiative proceeding is commenced,
what the COMELEC should do upon filing of the petition for initiative,
how a proposition is approved, when a plebiscite may be held, when
the amendment takes effect, and what matters may not be the subject
of any initiative. By any measure, these standards are adequate.
III
The dissent of Justice Puno has already a well-presented discourse on
the difference between an "amendment" and a "revision" of the
Constitution. Allow me also to articulate my additional thoughts on the
matter.
Oppositors to Lambino and Aumentado's petition for initiative argue
that the proposed changes therein to the provisions of the Constitution
already amount to a revision thereof, which is not allowed to be done
through people's initiative; Article XVII, Section 2 of the Constitution on
people's initiative refers only to proposals for amendments to the
Constitution. They assert the traditional distinction between an
amendment and a revision, with amendment referring to isolated or
piecemeal change only, while revision as a revamp or rewriting of the
whole instrument.13
However, as pointed out by Justice Puno in his dissent, there is no
quantitative or qualitative test that can establish with definiteness the
distinction between an amendment and a revision, or between a
substantial and simple change of the Constitution.
The changes proposed to the Constitution by Lambino and
Aumentado's petition for initiative basically affect only Article VI on the
Legislative Department and Article VII on the Executive Department.
While the proposed changes will drastically alter the constitution of our
government by vesting both legislative and executive powers in a
unicameral Parliament, with the President as the Head of State and the
Prime Minister exercising the executive power; they would not
essentially affect the other 16 Articles of the Constitution. The 100 or
so changes counted by the oppositors to the other provisions of the
Constitution are constituted mostly of the nominal substitution of one
word for the other, such as Parliament for Congress, or Prime Minister
for President. As eloquently pointed out in the dissent of Justice Puno,
the changes proposed to transform our form of government from
bicameral-presidential to unicameral-parliamentary, would not affect
the fundamental nature of our state as a democratic and republican
state. It will still be a representative government where officials
continue to be accountable to the people and the people maintain
control over the government through the election of members of the
Parliament.
Furthermore, should the people themselves wish to change a
substantial portion or even the whole of the Constitution, what or who
is to stop them? Article XVII, Section 2 of the Constitution which, by the
way it is worded, refers only to their right to initiative on amendments of
the Constitution? The delegates to the Constitutional Convention who,
according to their deliberations, purposely limited Article XVII, Section
2 of the Constitution to amendments? This Court which has the
jurisdiction to interpret the provision? Bearing in mind my earlier
declaration that the will of the sovereign people is supreme, there is
nothing or no one that can preclude them from initiating changes to the
Constitution if they choose to do so. To reiterate, the Constitution is
supposed to be the expression and embodiment of the people's will,
and should the people's will clamor for a revision of the Constitution, it
is their will which should prevail. Even the fact that the people ratified
the 1987 Constitution, including Article XVII, Section 2 thereof, as it is
worded, should not prevent the exercise by the sovereign people of
their inherent right to change the Constitution, even if such change
would be tantamount to a substantial amendment or revision thereof,
for their actual exercise of the said right should be a clear renunciation
of the limitation which the said provision imposes upon it. It is the
inherent right of the people as sovereign to change the Constitution,
regardless of the extent thereof.
IV
Lastly, I fail to see the injustice in allowing the COMELEC to give due
course to and take cognizance of Lambino and Aumentado's petition
for initiative to amend the Constitution. I reiterate that it would be a
greater evil if one such petition which is ostensibly supported by the
required number of registered voters all over the country, be summarily
dismissed.
Giving due course and taking cognizance of the petition would not
necessarily mean that the same would be found sufficient and set for
plebiscite. The COMELEC still faces the task of reviewing the petition
to determine whether it complies with the requirements for a valid
exercise of the right to initiative. Questions raised by the oppositors to
the petition, such as those on the authenticity of the registered voters'
signatures or compliance with the requisite number of registered voters
for every legislative district, are already factual in nature and require
the reception and evaluation of evidence of the parties. Such questions
are best presented and resolved before the COMELEC since this Court
is not a trier of facts.
In view of the foregoing, I am of the position that the Resolution of the
COMELEC dated 31 August 2006 denying due course to the Petition
for Initiative filed by Lambino and Aumentado be reversed and set
aside for having been issued in grave abuse of discretion, amounting
to lack of jurisdiction, and that the Petition be remanded to the
COMELEC for further proceedings.
In short, I vote to GRANT the petition for Initiative of Lambino and
Aumentado.
MINITA V. CHICO-NAZARIO
Associate Justice
____________________
EN BANC
G.R. No. 174153 October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, together with
6,327,952 REGISTERED VOTERS, petitioners, vs. The COMMISSION
ON ELECTIONS, respondent.
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.
Q. SAGUISAG, petitioners vs. COMMISSION ON ELECTIONS,
Represented by Chairman BENJAMIN S. ABALOS, JR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A.
264
TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and
John Doe and Peter Doe, respondents.
x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
VELASCO, JR., J.:
Introduction
The fate of every democracy, of every government based on the
Sovereignty of the people, depends on the choices it makes between
these opposite principles: absolute power on the one hand, and on the
other the restraints of legality and the authority of tradition.
—John Acton
In this thorny matter of the people's initiative, I concur with the erudite
and highly persuasive opinion of Justice Reynato S. Puno upholding
the people's initiative and raise some points of my own.
The issue of the people's power to propose amendments to the
Constitution was once discussed in the landmark case of Santiago v.
COMELEC.1 Almost a decade later, the issue is once again before the
Court, and I firmly believe it is time to reevaluate the pronouncements
made in that case.
The issue of Charter Change is one that has sharply divided the nation,
and its proponents and opponents will understandably take all
measures to advance their position and defeat that of their opponents.
The wisdom or folly of Charter Change does not concern the Court.
The only thing that the Court must review is the validity of the present
step taken by the proponents of Charter Change, which is the People's
Initiative, as set down in Article XVII, Sec. 2 of the 1987 Constitution:
Amendments to this Constitution may likewise be directly proposed by
the people through initiative upon a petition of at least twelve per
centum of the total number of registered voters, of which every
legislative district must be represented by at least three per centum of
the registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of
this right.
In the Santiago case, the Court discussed whether the second
paragraph of that section had been fulfilled. It determined that
Congress had not provided for the implementation of the exercise of
the people's initiative, when it held that Republic Act No. 6735, or "The
Initiative and Referendum Act," was "inadequate to cover the system of
initiative on amendments to the Constitution, and to have failed to
provide sufficient standard for subordinate legislation."2
With all due respect to those Justices who made that declaration, I
must disagree.
Republic Act No. 6735 is the proper law for proposing constitutional
amendments and it should not have been considered inadequate.
The decision in Santiago focused on what it perceived to be fatal flaws
in the drafting of the law, in the failings of the way the law was
structured, to come to the conclusion that the law was inadequate. The
Court itself recognized the legislators' intent, but disregarded this
intent. The law was found wanting. The Court then saw the inclusion of
the Constitution in RA 6735 as an afterthought. However, it was
included, and it should not be excluded by the Court via a strained
analysis of the law. The difficult construction of the law should not
serve to frustrate the intent of the framers of the 1987 Constitution: to
give the people the power to propose amendments as they saw fit. It is
a basic precept in statutory construction that the intent of the
legislature is the controlling factor in the interpretation of a statute.3
The intent of the legislature was clear, and yet RA 6735 was declared
inadequate. It was not specifically struck down or declared
unconstitutional, merely incomplete. The Court focused on what RA
6735 was not, and lost sight of what RA 6735 was.
It is my view that the reading of RA 6735 in Santiago should have been
more flexible. It is also a basic precept of statutory construction that
statutes should be construed not so much according to the letter that
killeth but in line with the purpose for which they have been enacted.4
The reading of the law should not have been with the view of its defeat,
but with the goal of upholding it, especially with its avowed noble
purpose.
Congress has done its part in empowering the people themselves to
propose amendments to the Constitution, in accordance with the
Constitution itself. It should not be the Supreme Court that stifles the
people, and lets their cries for change go unheard, especially when the
Constitution itself grants them that power.
The court's ruling in the Santiago case does not bar the present
petition because the fallo in the Santiago case is limited to the Delfin
petition.
The Santiago case involved a petition for prohibition filed by Miriam
Defensor-Santiago, et al., against the COMELEC, et al., which sought
to prevent the COMELEC from entertaining the "Petition to Amend the
Constitution, to Lift Term Limits of Elective Officials, by People's
Initiative" filed by Atty. Jesus Delfin. In the body of the judgment, the
Court made the following conclusion, viz:
This petition must then be granted and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any
petition or initiative on amendments on the Constitution until a sufficient
law shall have been validly enacted to provide for the implementation
of the system (emphasis supplied).
We feel, however, that the system of initiative to propose amendments
to the Constitution should no longer be kept in the cold; it should be
given flesh and blood, energy and strength. Congress should not tarry
any longer in complying with the constitutional mandate to provide for
the implementation of the right of the people under that system.
In the said case, the Court's fallo states as follows:
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R. A. 6735 inadequate to cover the system of initiative
on amendments to the Constitution, and to have failed to provide
sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300 of the
Commission on Elections prescribing rules and regulations on the
conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the
DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is
made permanent as against the Commission on Elections, but is
LIFTED against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
The question now is if the ruling in Santiago is decisive in this case. It
is elementary that when there is conflict between the dispositive portion
or fallo of the decision and the opinion of the court contained in the text
or body of the judgment, the former prevails over the latter. An order of
execution is based on the disposition, not on the body, of the
decision.5 The dispositive portion is its decisive resolution; thus, it is
the subject of execution. The other parts of the decision may be
resorted to in order to determine the ratio decidendi for the disposition.
Where there is conflict between the dispositive part and the opinion of
the court contained in the text or body of the decision, the former must
prevail over the latter on the theory that the dispositive portion is the
final order, while the opinion is merely a statement ordering nothing.
Hence, the execution must conform with that which is ordained or
decreed in the dispositive portion of the decision.6
A judgment must be distinguished from an opinion. The latter is an
informal expression of the views of the court and cannot prevail against
its final order or decision. While the two may be combined in one
instrument, the opinion forms no part of the judgment. So there is a
distinction between the findings and conclusions of a court and its
Judgment. While they may constitute its decision and amount to the
rendition of a judgment, they are not the judgment itself. It is not
infrequent that the grounds of a decision fail to reflect the exact views
of the court, especially those of concurring justices in a collegiate court.
We often encounter in judicial decisions lapses, findings, loose
statements and generalities which do not bear on the issues or are
apparently opposed to the otherwise sound and considered result
reached by the court as expressed in the dispositive part, so called, of
the decision.7
Applying the foregoing argument to the Santiago case, it immediately
becomes apparent that the disposition in the latter case categorically
made permanent the December 18, 1996 Temporary Restraining
Order issued against the COMELEC in the Delfin petition but did NOT
formally incorporate therein any directive PERMANENTLY enjoining
the COMELEC "from entertaining or taking cognizance of any petition
for initiative on amendments." Undeniably, the perpetual proscription
against the COMELEC from assuming jurisdiction over any other
petition on Charter Change through a People's Initiative is just a
conclusion and cannot bind the poll body, for such unending ban would
trench on its constitutional power to enforce and administer all laws
and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall under Section 2, Article IX of the
Constitution. RA 6735 gave the COMELEC the jurisdiction to
determine the sufficiency of the petition on the initiative under Section
265
8, Rule 11 and the form of the petition under Section 3, Rule I; hence, it
cannot be barred from entertaining any such petition.
In sum, the COMELEC still retains its jurisdiction to take cognizance of
any petition on initiative under RA 6735 and it can rule on the petition
and its action can only be passed upon by the Court when the same is
elevated through a petition for certiorari. COMELEC cannot be barred
from acting on said petitions since jurisdiction is conferred by law (RA
6735) and said law has not been declared unconstitutional and hence
still valid though considered inadequate in the Santiago case.
Respondents, however, claim that the Court in the subsequent case of
PIRMA v. Commission on Elections8 confirmed the statement of the
Court in the Santiago case that the COMELEC was "permanently
enjoined from entertaining or taking cognizance of any petition for
initiative on amendments." Much reliance is placed on the ruling
contained in a Minute Resolution which reads:
The Court ruled, first, by a unanimous vote, that no grave abuse of
Discretion could be attributed to the public respondent COMELEC in
Dismissing the petition filed by PIRMA therein, it appearing that it only
Complied with the DISPOSITIONS in the Decision of this Court in G.R.
No. 127325, promulgated on March 19, 1997, and its Resolution of
June 10, 1997.
Take note that the Court specifically referred to "dispositions" in the
March 19, 1997 Decision. To reiterate, the dispositions in the Santiago
case decision refer specifically to the December 18, 1996 TRO being
made permanent against the COMELEC but do not pertain to a
permanent injunction against any other petition for initiative on
amendment. Thus, what was confirmed or even affirmed in the Minute
Resolution in the PIRMA case pertains solely to the December 18,
1996 TRO which became permanent, the declaration of the
inadequacy of RA 6735, and the annulment of certain parts of
Resolution No. 2300 but certainly not the alleged perpetual injunction
against the initiative petition. Thus, the resolution in the PIRMA case
cannot be considered res judicata to the Lambino petition.
Amendment or Revision
One last matter to be considered is whether the petition may be
allowed under RA 6735, since only amendments to the Constitution
may be the subject of a people's initiative.
The Lambino petition cannot be considered an act of revising the
Constitution; it is merely an attempt to amend it. The term amendment
has to be liberally construed so as to effectuate the people's efforts to
amend the Constitution.
As an eminent constitutionalist, Dean Vicente G. Sinco,9 explained:
Strictly speaking, the act of revising a constitution involves alterations
of different portions of the entire document. It may result in the
rewriting either of the whole constitution, or the greater portion of it, or
perhaps only some of its important provisions. But whatever results the
revision may produce, the factor that characterizes it as an act of
revision is the original intention and plan authorized to be carried out.
That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered
or suppressed or whether the whole document should be replaced with
an entirely new one.
The act of amending a constitution, on the other hand, envisages a
change of only a few specific provisions. The intention of an act to
amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather is to
improve specific parts of the existing constitution or to add to it
provisions deemed essential on account of changed conditions or to
suppress portions of it that seem obsolete, or dangerous, or misleading
in their effect.
In this case, the Lambino petition is not concerned with rewriting the
entire Constitution. It was never its intention to revise the whole
Constitution. It merely concerns itself with amending a few provisions
in our fundamental charter.
When there are gray areas in legislation, especially in matters that
pertain to the sovereign people's political rights, courts must lean more
towards a more liberal interpretation favoring the people's right to
exercise their sovereign power.
Conclusion
Sovereignty residing in the people is the highest form of sovereignty
and thus deserves the highest respect even from the courts. It is not
something that can be overruled, set aside, ignored or stomped over
by whatever amount of technicalities, blurred or vague provisions of the
law.
As I find RA 6735 to be adequate as the implementing law for the
People's Initiative, I vote to grant the petition in G.R. No. 174153 and
dismiss the petition in G.R. No. 174299. The Amended Petition for
Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado
should be remanded to the COMELEC for determination whether or
not the petition is sufficient under RA 6735, and if the petition is
sufficient, to schedule and hold the necessary plebiscite as required by
RA 6735.
It is time to let the people's voice be heard once again as it was twenty
years ago. And should this voice demand a change in the Constitution,
the Supreme Court should not be one to stand in its way.
PRESBITERO J. VELASCO, JR.
Associate Justice
[G. R. No. 140835. August 14, 2000]
RAMON A. GONZALES, petitioner, vs. HON. ANDRES R.
NARVASA, as Chairman, PREPARATORY COMMISSION ON
CONSTITUTIONAL REFORMS; HON. RONALDO B. ZAMORA, as
Executive Secretary; COMMISSION ON AUDIT; ROBERTO
AVENTAJADO, as Presidential Consultant on Council of
Economic Advisers/Economic Affairs; ANGELITO C. BANAYO, as
Presidential Adviser for/on Political Affairs; VERONICA IGNACIO-
JONES, as Presidential Assistant/ Appointment Secretary (In
charge of appointments), respondents.
DECISION
GONZAGA-REYES, J.:
In this petition for prohibition and mandamus filed on December 9,
1999, petitioner Ramon A. Gonzales, in his capacity as a citizen and
taxpayer, assails the constitutionality of the creation of the Preparatory
Commission on Constitutional Reform (PCCR) and of the positions of
presidential consultants, advisers and assistants. Petitioner asks this
Court to enjoin the PCCR and the presidential consultants, advisers
and assistants from acting as such, and to enjoin Executive Secretary
Ronaldo B. Zamora from enforcing their advice and recommendations.
In addition, petitioner seeks to enjoin the Commission on Audit from
passing in audit expenditures for the PCCR and the presidential
consultants, advisers and assistants. Finally, petitioner prays for an
order compelling respondent Zamora to furnish petitioner with
information on certain matters.
On January 28, 2000, respondent Hon. Andres R. Narvasa, impleaded
in his capacity as Chairman of the PCCR, filed his Comment to the
Petition. The rest of the respondents, who are being represented in this
case by the Solicitor General, filed their Comment with this Court on
March 7, 2000. Petitioner then filed a Consolidated Reply on April 24,
2000, whereupon this case was considered submitted for decision.
I. Preparatory Commission on Constitutional Reform
The Preparatory Commission on Constitutional Reform (PCCR) was
created by President Estrada on November 26, 1998 by virtue of
Executive Order No. 43 (E.O. No. 43) in order to study and recommend
proposed amendments and/or revisions to the 1987 Constitution, and
the manner of implementing the same.[1] Petitioner disputes the
constitutionality of the PCCR on two grounds. First, he contends that it
is a public office which only the legislature can create by way of a
law.[2] Secondly, petitioner asserts that by creating such a body the
President is intervening in a process from which he is totally excluded
by the Constitution the amendment of the fundamental charter.[3]
It is alleged by respondents that, with respect to the PCCR, this case
has become moot and academic. We agree.
An action is considered moot when it no longer presents a justiciable
controversy because the issues involved have become academic or
dead.[4] Under E.O. No. 43, the PCCR was instructed to complete its
task on or before June 30, 1999.[5] However, on February 19, 1999,
the President issued Executive Order No. 70 (E.O. No. 70), which
extended the time frame for the completion of the commissions work,
viz
SECTION 6. Section 8 is hereby amended to read as follows:
Time Frame. The Commission shall commence its work on 01 January
1999 and complete the same on or before 31 December 1999. The
Commission shall submit its report and recommendations to the
President within fifteen (15) working days from 31 December 1999.
The PCCR submitted its recommendations to the President on
December 20, 1999 and was dissolved by the President on the same
day. It had likewise spent the funds allotted to it.[6] Thus, the PCCR
has ceased to exist, having lost its raison detre. Subsequent events
have overtaken the petition and the Court has nothing left to resolve.
The staleness of the issue before us is made more manifest by the
impossibility of granting the relief prayed for by petitioner. Basically,
petitioner asks this Court to enjoin the PCCR from acting as such.[7]
Clearly, prohibition is an inappropriate remedy since the body sought to
be enjoined no longer exists. It is well established that prohibition is a
preventive remedy and does not lie to restrain an act that is already fait
accompli.[8] At this point, any ruling regarding the PCCR would simply
266
be in the nature of an advisory opinion, which is definitely beyond the
permissible scope of judicial power.
In addition to the mootness of the issue, petitioners lack of standing
constitutes another obstacle to the successful invocation of judicial
power insofar as the PCCR is concerned.
The question in standing is whether a party has alleged such a
personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions.[9] In assailing the constitutionality of E.O.
Nos. 43 and 70, petitioner asserts his interest as a citizen and
taxpayer.[10] A citizen acquires standing only if he can establish that
he has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable
to the challenged action; and the injury is likely to be redressed by a
favorable action.[11] In Kilosbayan, Incorporated v. Morato,[12] we
denied standing to petitioners who were assailing a lease agreement
between the Philippine Charity Sweepstakes Office and the Philippine
Gaming Management Corporation, stating that,
in Valmonte v. Philippine Charity Sweepstakes Office, G.R. No. 78716,
Sept. 22, 1987, standing was denied to a petitioner who sought to
declare a form of lottery known as Instant Sweepstakes invalid
because, as the Court held,
Valmonte brings the suit as a citizen, lawyer, taxpayer and father of
three (3) minor children. But nowhere in his petition does petitioner
claim that his rights and privileges as a lawyer or citizen have been
directly and personally injured by the operation of the Instant
Sweepstakes. The interest of the person assailing the constitutionality
of a statute must be direct and personal. He must be able to show, not
only that the law is invalid, but also that he has sustained or in
immediate danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about
to be denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by
reason of the statute complained of.
We apprehend no difference between the petitioner in Valmonte and
the present petitioners. Petitioners do not in fact show what
particularized interest they have for bringing this suit. It does not
detract from the high regard for petitioners as civic leaders to say that
their interest falls short of that required to maintain an action under
Rule 3, d 2.
Coming now to the instant case, petitioner has not shown that he has
sustained or is in danger of sustaining any personal injury attributable
to the creation of the PCCR. If at all, it is only Congress, not petitioner,
which can claim any injury in this case since, according to petitioner,
the President has encroached upon the legislatures powers to create a
public office and to propose amendments to the Charter by forming the
PCCR. Petitioner has sustained no direct, or even any indirect, injury.
Neither does he claim that his rights or privileges have been or are in
danger of being violated, nor that he shall be subjected to any
penalties or burdens as a result of the PCCRs activities. Clearly,
petitioner has failed to establish his locus standi so as to enable him to
seek judicial redress as a citizen.
A taxpayer is deemed to have the standing to raise a constitutional
issue when it is established that public funds have been disbursed in
alleged contravention of the law or the Constitution.[13], Thus payers
action is properly brought only when there is an exercise by Congress
of its taxing or spending power.[14] This was our ruling in a recent case
wherein petitioners Telecommunications and Broadcast Attorneys of
the Philippines (TELEBAP) and GMA Network, Inc. questioned the
validity of section 92 of B.P. No. 881 (otherwise knows as the Omnibus
Election Code) requiring radio and television stations to give free air
time to the Commission on Elections during the campaign period.[15]
The Court held that petitioner TELEBAP did not have any interest as a
taxpayer since the assailed law did not involve the taxing or spending
power of Congress.[16]
Many other rulings have premised the grant or denial of standing to
taxpayers upon whether or not the case involved a disbursement of
public funds by the legislature. In Sanidad v. Commission on
Elections,[17] the petitioners therein were allowed to bring a taxpayers
suit to question several presidential decrees promulgated by then
President Marcos in his legislative capacity calling for a national
referendum, with the Court explaining that
...[i]t is now an ancient rule that the valid source of a statute
Presidential Decrees are of such nature may be contested by one who
will sustain a direct injury as a result of its enforcement. At the instance
of taxpayers, laws providing for the disbursement of public funds may
be enjoined, upon the theory that the expenditure of public funds by an
officer of the State for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds. The breadth of Presidential
Decree No. 991 carries an appropriation of Five Million Pesos for the
effective implementation of its purposes. Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to carry out its provisions.
The interest of the aforenamed petitioners as taxpayers in the lawful
expenditure of these amounts of public money sufficiently clothes them
with that personality to litigate the validity of the Decrees appropriating
said funds.
In still another case, the Court held that petitioners the Philippine
Constitution Association, Inc., a non-profit civic organization - had
standing as taxpayers to question the constitutionality of Republic Act
No. 3836 insofar as it provides for retirement gratuity and commutation
of vacation and sick leaves to Senators and Representatives and to the
elective officials of both houses of Congress.[18] And in Pascual v.
Secretary of Public Works,[19] the Court allowed petitioner to maintain
a taxpayers suit assailing the constitutional soundness of Republic Act
No. 920 appropriating P85,000 for the construction, repair and
improvement of feeder roads within private property. All these cases
involved the disbursement of public funds by means of a law.
Meanwhile, in Bugnay Construction and Development Corporation v.
Laron,[20] the Court declared that the trial court was wrong in allowing
respondent Ravanzo to bring an action for injunction in his capacity as
a taxpayer in order to question the legality of the contract of lease
covering the public market entered into between the City of Dagupan
and petitioner. The Court declared that Ravanzo did not possess the
requisite standing to bring such taxpayers suit since [o]n its face, and
there is no evidence to the contrary, the lease contract entered into
between petitioner and the City shows that no public funds have been
or will be used in the construction of the market building.
Coming now to the instant case, it is readily apparent that there is no
exercise by Congress of its taxing or spending power. The PCCR was
created by the President by virtue of E.O. No. 43, as amended by E.O.
No. 70. Under section 7 of E.O. No. 43, the amount of P3 million is
appropriated for its operational expenses to be sourced from the funds
of the Office of the President. The relevant provision states -
Appropriations. The initial amount of Three Million Pesos
(P3,000,000.00) is hereby appropriated for the operational expenses of
the Commission to be sourced from funds of the Office of the
President, subject to the usual accounting and auditing rules and
regulations. Additional amounts shall be released to the Commission
upon submission of requirements for expenditures.
The appropriations for the PCCR were authorized by the President, not
by Congress. In fact, there was no an appropriation at all. In a strict
sense, appropriation has been defined as nothing more than the
legislative authorization prescribed by the Constitution that money may
be paid out of the Treasury, while appropriation made by law refers to
the act of the legislature setting apart or assigning to a particular use a
certain sum to be used in the payment of debt or dues from the State
to its creditors. [21] The funds used for the PCCR were taken from
funds intended for the Office of the President, in the exercise of the
Chief Executives power to transfer funds pursuant to section 25 (5) of
article VI of the Constitution.
In the final analysis, it must be stressed that the Court retains the
power to decide whether or not it will entertain a taxpayers suit.[22] In
the case at bar, there being no exercise by Congress of its taxing or
spending power, petitioner cannot be allowed to question the creation
of the PCCR in his capacity as a taxpayer, but rather, he must
establish that he has a personal and substantial interest in the case
and that he has sustained or will sustain direct injury as a result of its
enforcement.[23] In other words, petitioner must show that he is a real
party in interest - that he will stand to be benefited or injured by the
judgment or that he will be entitled to the avails of the suit.[24]
Nowhere in his pleadings does petitioner presume to make such a
representation.
II. Presidential Consultants, Advisers, Assistants
The second issue raised by petitioner concerns the presidential
consultants. Petitioner alleges that in 1995 and 1996, the President
created seventy (70) positions in the Office of the President and
appointed to said positions twenty (20) presidential consultants,
twenty-two (22) presidential advisers, and twenty-eight (28)
presidential assistants.[25] Petitioner asserts that, as in the case of the
PCCR, the President does not have the power to create these
positions.[26]
Consistent with the abovementioned discussion on standing, petitioner
does not have the personality to raise this issue before the Court. First
of all, he has not proven that he has sustained or is in danger of
sustaining any injury as a result of the appointment of such presidential
advisers. Secondly, petitioner has not alleged the necessary facts so
as to enable the Court to determine if he possesses a taxpayers
interest in this particular issue. Unlike the PCCR which was created by
virtue of an executive order, petitioner does not allege by what official
act, whether it be by means of an executive order, administrative order,
memorandum order, or otherwise, the President attempted to create
the positions of presidential advisers, consultants and assistants. Thus,
it is unclear what act of the President petitioner is assailing. In support
of his allegation, petitioner merely annexed a copy of the Philippine
Government Directory (Annex C) listing the names and positions of
such presidential consultants, advisers and assistants to his petition.
267
However, appointment is obviously not synonymous with creation. It
would be improvident for this Court to entertain this issue given the
insufficient nature of the allegations in the Petition.
III. Right to Information
Finally, petitioner asks us to issue a writ of mandamus ordering
Executive Secretary Ronaldo B. Zamora to answer his letter (Annex D)
dated October 4, 1999 requesting for the names of executive officials
holding multiple positions in government, copies of their appointments,
and a list of the recipients of luxury vehicles seized by the Bureau of
Customs and turned over to Malacanang.[27]
The right to information is enshrined in Section 7 of the Bill of Rights
which provides that
The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents, and
papers pertaining to official acts, transactions, or decisions, as well as
to government research data used as basis for policy development,
shall be afforded the citizen, subject to such limitations as may be
provided by law.
Under both the 1973[28] and 1987 Constitution, this is a self-executory
provision which can be invoked by any citizen before the courts. This
was our ruling in Legaspi v. Civil Service Commission,[29] wherein the
Court classified the right to information as a public right and when a
[m]andamus proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere fact that the
petitioner is a citizen, and therefore, part of the general public which
possesses the right. However, Congress may provide for reasonable
conditions upon the access to information. Such limitations were
embodied in Republic Act No. 6713, otherwise knows as the Code of
Conduct and Ethical Standards for Public Officials and Employees,
which took effect on March 25, 1989. This law provides that, in the
performance of their duties, all public officials and employees are
obliged to respond to letters sent by the public within fifteen (15)
working days from receipt thereof and to ensure the accessibility of all
public documents for inspection by the public within reasonable
working hours, subject to the reasonable claims of confidentiality.[30]
Elaborating on the significance of the right to information, the Court
said in Baldoza v. Dimaano[31] that [t]he incorporation of this right in
the Constitution is a recognition of the fundamental role of free
exchange of information in a democracy. There can be no realistic
perception by the public of the nations problems, nor a meaningful
democratic decisionmaking if they are denied access to information of
general interest. Information is needed to enable the members of
society to cope with the exigencies of the times. The information to
which the public is entitled to are those concerning matters of public
concern, a term which embrace[s] a broad spectrum of subjects which
the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of
an ordinary citizen. In the final analysis, it is for the courts to determine
in a case by case basis whether the matter at issue is of interest or
importance, as it relates to or affects the public.[32]
Thus, we agree with petitioner that respondent Zamora, in his official
capacity as Executive Secretary, has a constitutional and statutory duty
to answer petitioners letter dealing with matters which are
unquestionably of public concern that is, appointments made to public
offices and the utilization of public property. With regard to petitioners
request for copies of the appointment papers of certain officials,
respondent Zamora is obliged to allow the inspection and copying of
the same subject to the reasonable limitations required for the orderly
conduct of official business.[33]
WHEREFORE, the petition is dismissed, with the exception that
respondent Zamora is ordered to furnish petitioner with the information
requested.
SO ORDERED.
Davide, Jr., C.J., Melo, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Ynares-Santiago, and De Leon,
Jr., JJ., concur.
Bellosillo, J., abroad, on official business.
Puno, J., vote to dismiss on the ground that the case is moot.